II 

118TH CONGRESS 

2D SESSION S. 5438 

To amend title 28, United States Code, to establish a procedure to dismiss 

and deter strategic lawsuits against public participation, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 5, 2024 

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend title 28, United States Code, to establish a procedure to dismiss and deter strategic lawsuits against public participation, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Free Speech Protection 

5 Act’’. 


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1 SEC. 2. MEASURES TO END STRATEGIC LAWSUITS AGAINST 

2 PUBLIC PARTICIPATION. 

3 (a) IN GENERAL.—Part VI of title 28, United States 

4 Code, is amended by adding after chapter 181 the fol5 lowing new chapter: 

6 ‘‘CHAPTER 182—PROCEDURE TO DISMISS 

7 AND DETER STRATEGIC LAWSUITS 

8 AGAINST PUBLIC PARTICIPATION 

‘‘Sec. 

‘‘4201. Definitions. 

‘‘4202. Special motion to dismiss a strategic lawsuit against public participation. 

‘‘4203. Exceptions. 

‘‘4204. Fees. 

‘‘4205. Preservation of rights. 

9 ‘‘§ 4201. Definitions 

10 ‘‘In this chapter: 

11 ‘‘(1) STRATEGIC LAWSUIT AGAINST PUBLIC

12 PARTICIPATION; SLAPP.—The term ‘strategic lawsuit 

13 against public participation’ or ‘SLAPP’ means the 

14 use of the court system to silence or intimidate a 

15 party who is engaged in the constitutional exercise 

16 of one or more of the acts described in section 

17 4202(c)(2), by subjecting that party to meritless liti18 gation. 

19 ‘‘(2) CLAIM.—The term ‘claim’ means any civil 

20 action, complaint, cause of action, counterclaim, or 

21 other court filing seeking damages, declaratory reVerDate Sep 11 2014 04:45 Jan 08, 2025 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5438.IS S5438

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1 lief, or equitable relief, including any individual 

2 causes of action. 

3 ‘‘(3) MATTER OF PUBLIC CONCERN.—The term 

4 ‘matter of public concern’ means an issue that— 

5 ‘‘(A) can be fairly considered as relating to 

6 any matter of political, social, health or safety, 

7 or other concern to the community; 

8 ‘‘(B) is of legitimate news interest; or 

9 ‘‘(C) is a subject of general interest and of 

10 value and concern to the public. 

11 ‘‘(4) GOVERNMENT ENTITY.—The term ‘gov12 ernment entity’ means— 

13 ‘‘(A) the Government of the United States; 

14 ‘‘(B) a State or subdivision of a State, in15 cluding a county or municipality; 

16 ‘‘(C) a Federal or State government cor17 poration, branch, department, or agency; 

18 ‘‘(D) a public institution; or 

19 ‘‘(E) a federally or State recognized Tribe. 

20 ‘‘(5) STATE.—The term ‘State’ means each of 

21 the several States, the District of Columbia, and any 

22 commonwealth, territory, or possession of the United 

23 States. 


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1 ‘‘§ 4202. Special motion to dismiss a strategic lawsuit 

2 against public participation 

3 ‘‘(a) SPECIAL MOTION TO DISMISS.— 

4 ‘‘(1) NOTICE OF INTENT TO FILE.—Not later 

5 than 5 days before the filing of a special motion to 

6 dismiss a claim alleged to be a strategic lawsuit 

7 against public participation under this chapter, the 

8 moving party shall provide written notice to the re9 sponding party of its intent to file such a special 

10 motion to dismiss with respect to a claim. The mov11 ing party may not file a special motion to dismiss 

12 until the day after the expiration of the 5-day pe13 riod, before which the responding party may with14 draw or amend the claim in accordance with applica15 ble court rules. 

16 ‘‘(2) FILING.—A special motion to dismiss pur17 suant to this chapter shall be filed not later than the 

18 date that is the later of— 

19 ‘‘(A) 60 days after the date of service of 

20 the pleading that states the claim alleged to be 

21 a SLAPP; or 

22 ‘‘(B) 60 days after the date of removal of 

23 the case to Federal court. 

24 ‘‘(3) GOOD CAUSE.—Upon motion by either 

25 party and for good cause, the court may extend the 

26 period described under paragraph (2). 


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1 ‘‘(b) STAY OF PROCEEDINGS.— 

2 ‘‘(1) IN GENERAL.—Except as provided under 

3 paragraph (2), upon the filing of a special motion to 

4 dismiss under this chapter, all other proceedings be5 tween the moving party and responding party that 

6 are related to the claim, including discovery pro7 ceedings and any pending hearing or motions, shall 

8 be stayed until notice of entry of an order disposing 

9 of the special motion to dismiss. 

10 ‘‘(2) STAY INVOLVING ANOTHER PARTY.—On 

11 motion by the moving party, the court may stay a 

12 hearing or motion involving another party, or dis13 covery by another party, if the hearing or motion 

14 would adjudicate, or the discovery would relate to, 

15 an issue material to the motion under this section. 

16 ‘‘(3) EXCEPTIONS.— 

17 ‘‘(A) LIMITED DISCOVERY.—Upon motion 

18 by either party, the court may allow limited dis19 covery related to the motion if a party shows 

20 that specific information is necessary to estab21 lish whether a party has satisfied or failed to 

22 satisfy a burden under subsection (c) and the 

23 information is not reasonably available unless 

24 discovery is allowed. The court may not allow 

25 discovery of information about the confidential 


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1 sources of a reporter or work product, or any 

2 other information that is privileged under State 

3 or Federal law. 

4 ‘‘(B) MOTION FOR REMAND.—Proceedings 

5 relating to a motion to remand filed pursuant 

6 to section 1447 may proceed pending consider7 ation by the court of the special motion to dis8 miss. 

9 ‘‘(c) CONSIDERATION OF MOTION.—The court shall 

10 grant the special motion to dismiss and dismiss the claim 

11 with prejudice if— 

12 ‘‘(1) the responding party fails to establish that 

13 an exception under section 4203 applies; 

14 ‘‘(2) the moving party presents evidence estab15 lishing that the claim at issue is based on, or in re16 sponse to, the party’s— 

17 ‘‘(A) exercise of a constitutional right in a 

18 legislative, executive, judicial, administrative, or 

19 other governmental proceeding; 

20 ‘‘(B) exercise of a constitutional right to 

21 communicate on an issue under consideration or 

22 review in a legislative, executive, judicial, ad23 ministrative, or other governmental proceeding; 

24 or 


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1 ‘‘(C) exercise of the constitutional right of 

2 freedom of speech or of the press, the right to 

3 assemble or petition, or the right of association, 

4 on a matter of public concern; and 

5 ‘‘(3)(A) the responding party fails to present 

6 evidence establishing a prima facie case regarding 

7 each element of the claim; or 

8 ‘‘(B) the moving party establishes that— 

9 ‘‘(i) the responding party failed to state a 

10 claim upon which relief can be granted; or 

11 ‘‘(ii) there is no genuine issue of material 

12 fact and the moving party is entitled to judg13 ment as a matter of law on the claim. 

14 ‘‘(d) NO REQUIREMENT FOR MOVING PARTY TO

15 DEMONSTRATE INTENT.—The moving party does not 

16 need to demonstrate the responding party’s intent to si17 lence or intimidate the moving party in order to prevail 

18 on the motion. 

19 ‘‘(e) EXPEDITED RULING.—The court shall rule on 

20 a special motion to dismiss not later than 90 days after 

21 the date on which the motion is filed, unless the court 

22 determines that docket conditions, any specified discovery, 

23 or other good cause requires a ruling at a later date. 


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1 ‘‘§ 4203. Exceptions 

2 ‘‘(a) IN GENERAL.—Except as provided under sub3 section (b), this chapter shall not apply to any claim that 

4 is brought— 

5 ‘‘(1) against a person primarily engaged in the 

6 business of selling or leasing commercial goods or 

7 services if the claim arises out of the person’s sale, 

8 lease, or representation of commercial goods or serv9 ices; 

10 ‘‘(2) by a government official or entity acting in 

11 an official capacity or under color of law, or against 

12 a government official or entity sued in an official or 

13 individual capacity for acts or omissions conducted 

14 on behalf of a government entity or under color of 

15 law; 

16 ‘‘(3) under the citizen suit provision of a Fed17 eral or state statute; 

18 ‘‘(4) under the Securities and Exchange Act of 

19 1934 (15 U.S.C. 78a et seq.), the Securities Act of 

20 1933 (15 U.S.C. 77a et seq.), or a State securities 

21 law and based on filings or communications with 

22 government regulatory agencies; 

23 ‘‘(5) for recovery for wrongful death, except for 

24 a claim arising solely out of a constitutional right of 

25 a moving party listed in section 4202(c)(2); 


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1 ‘‘(6) by an employee against that individual’s 

2 employer or former employer for an issue arising 

3 from the employment relationship; or 

4 ‘‘(7) by a whistleblower under a Federal or 

5 State whistleblower statute, including any claim 

6 brought under the section 3729, 3730, 3731, 3732, 

7 or 3733 of title 31. 

8 ‘‘(b) LIMITATIONS ON EXCEPTIONS.—This chapter 

9 shall apply to a claim asserted under paragraph (1), (2), 

10 (3), (4), or (5) of subsection (a) if the claim is brought 

11 against— 

12 ‘‘(1) any publisher, editor, reporter, or other 

13 person who is or was connected with or employed by 

14 a radio station, television station, newspaper, maga15 zine, internet-based publication, or other periodical 

16 publication, or by a press association or wire service, 

17 if the person against whom the claim was asserted 

18 was acting with respect to such connection or em19 ployment; or 

20 ‘‘(2) any person or entity based on the person’s 

21 or entity’s creation, dissemination, exhibition, adver22 tisement, or other similar promotion of any dra23 matic, literary, musical, journalistic, or artistic work. 


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1 ‘‘§ 4204. Fees 

2 ‘‘(a) ATTORNEY’S FEES AND COSTS.—If the moving 

3 party prevails on the special motion to dismiss, there shall 

4 be a rebuttable presumption that the moving party is enti5 tled to an award of reasonable attorneys’ fees and costs. 

6 Such a presumption may be rebutted by a showing that 

7 such an award would be unreasonable or that special cir8 cumstances exist that would make such an award unjust, 

9 as determined by the court. The moving party does not 

10 need to demonstrate the responding party’s intent to si11 lence or intimidate the moving party or other speakers to 

12 be entitled to such an award. 

13 ‘‘(b) PREVAILING PARTY.—For the purposes of sub14 section (a), the moving party is considered to have pre15 vailed on the special motion to dismiss if the court grants 

16 the special motion to dismiss under section 4202(d) or the 

17 responding party voluntarily withdraws the claim after the 

18 motion is filed consistent with section 4202(a). 

19 ‘‘(c) BAD FAITH FILINGS.—If a court finds that a 

20 special motion to dismiss was filed in bad faith and solely 

21 intended to cause delay, there shall be a rebuttable pre22 sumption that the responding party is entitled to an award 

23 of reasonable attorneys’ fees and costs incurred in re24 sponding to the special motion to dismiss. Such a pre25 sumption may be rebutted by a showing that such an 

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1 cumstances exist that would make such an award unjust, 

2 as determined by the court. 

3 ‘‘§ 4205. Preservation of rights 

4 ‘‘(a) SAVINGS CLAUSE.—‘‘Except as provided for in 

5 this chapter, nothing in this chapter shall reduce or limit 

6 any substantive claim, remedy, or defense to a SLAPP 

7 under any other Federal law or under the laws of any 

8 State or locality. 

9 ‘‘(b) SANCTIONS AND AWARD OF EXPENSES.—Noth10 ing in this chapter shall preclude the parties from seeking 

11 sanctions or an award of expenses under rule 11 of the 

12 Federal Rules of Civil Procedure.’’. 

13 (b) CLERICAL AMENDMENT.—The table of chapters 

14 for title 28, United States Code, is amended by adding 

15 after chapter 181 the following: 

‘‘182. Procedure to dismiss and deter strategic lawsuits 

against public participation .............................. 4201’’. 

16 SEC. 3. RULE OF CONSTRUCTION. 

17 This Act and the amendments made by this Act shall 

18 be broadly construed and applied to protect the exercise 

19 of rights under the U.S. Constitution. 

20 SEC. 4. EFFECTIVE DATE; APPLICABILITY. 

21 This Act and the amendments made by this Act shall 

22 take effect on the date of enactment of this Act and shall 

23 apply to any application for dismissal of a SLAPP, as de24 fined in section 4201 of title 28, United States Code, as 


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1 added by section 2 of this Act, filed on or after the date 

2 of enactment of this Act. 

Æ 


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