August 2, 2012 CONGRESSIONAL RECORD — SENATE S5983 

period set forth in this subsection shall be 

extended as provided under the treaty and 

Regulations as defined in section 351.’’; and 

(2) in section 365(b), by adding at the end 

the following: ‘‘The Director may establish 

procedures, including the requirement for 

payment of the fee specified in section 

41(a)(7), to accept an unintentionally delayed 

claim for priority under the treaty and the 

Regulations, and to accept a priority claim 

where such priority claim pertains to an application that was not filed within the priority period specified in the treaty and Regulations, but was filed within the additional 2- 

month period specified under section 119(a) 

or the treaty and Regulations.’’. 

(d) RECORDATION OF OWNERSHIP INTERESTS.—Section 261 of title 35, United States 

Code, is amended— 

(1) in the first undesignated paragraph by 

adding at the end the following: ‘‘The Patent 

and Trademark Office shall maintain a register of interests in applications for patents 

and patents and shall record any document 

related thereto upon request, and may require a fee therefor.’’; and 

(2) in the fourth undesignated paragraph 

by striking ‘‘An assignment’’ and inserting 

‘‘An interest that constitutes an assignment’’. 

SEC. 202. CONFORMING AMENDMENTS. 

(a) IN GENERAL.—Section 171 of title 35, 

United States Code, is amended by adding at 

the end the following: 

‘‘The filing date of an application for patent for design shall be the date on which the 

specification as prescribed by section 112 and 

any required drawings are filed.’’. 

(b) RELIEF IN RESPECT OF TIME LIMITS AND

REINSTATEMENT OF RIGHT.—Title 35, United 

States Code, is amended— 

(1) in section 41— 

(A) in subsection (a), by striking subsection (7) and inserting the following: 

‘‘(7) REVIVAL FEES.—On filing each petition 

for the revival of an abandoned application 

for a patent, for the delayed payment of the 

fee for issuing each patent, for the delayed 

response by the patent owner in any reexamination proceeding, for the delayed payment 

of the fee for maintaining a patent in force, 

for the delayed submission of a priority or 

benefit claim, or for the extension of the 12- 

month period for filing a subsequent application, $1,700.00. The Director may refund any 

part of the fee specified in this paragraph, in 

exceptional circumstances as determined by 

the Director’’; and 

(B) in subsection (c), by striking paragraph 

(1) and inserting the following: 

‘‘(1) ACCEPTANCE.—The Director may accept the payment of any maintenance fee required by subsection (b) after the 6-month 

grace period if the delay is shown to the satisfaction of the Director to have been unintentional. The Director may require the payment of the fee specified in paragraph (a)(7) 

as a condition of accepting payment of any 

maintenance fee after the 6-month grace period. If the Director accepts payment of a 

maintenance fee after the 6-month grace period, the patent shall be considered as not 

having expired at the end of the grace period.’’; 

(2) in section 119(b)(2), in the second sentence, by striking ‘‘including the payment of 

a surcharge’’ and inserting ‘‘including the requirement for payment of the fee specified in 

section 41(a)(7)’’; 

(3) in section 120, in the fourth sentence, by 

striking ‘‘including the payment of a surcharge’’ and inserting ‘‘including the requirement for payment of the fee specified in 

section 41(a)(7)’’; 

(4) in section 122(b)(2)(B)(iii), in the second 

sentence, by striking ‘‘, unless it is shown’’ 

and all that follows through ‘‘unintentional’’; 

(5) in section 133, by striking ‘‘, unless it be 

shown’’ and all that follows through ‘‘unavoidable’’; 

(6) by striking section 151 and inserting the 

following: 

‘‘§ 151. Issue of patent 

‘‘If it appears that applicant is entitled to 

a patent under the law, a written notice of 

allowance of the application shall be given 

or mailed to the applicant. The notice shall 

specify a sum, constituting the issue fee and 

any required publication fee, which shall be 

paid within 3 months thereafter. 

‘‘Upon payment of this sum the patent 

may issue, but if payment is not timely 

made, the application shall be regarded as 

abandoned.’’; 

(7) in section 361, by striking subsection (c) 

and inserting the following: 

‘‘(c) International applications filed in the 

Patent and Trademark Office shall be filed 

in the English language, or an English translation shall be filed within such later time as 

may be fixed by the Director.’’; 

(8) in section 364, by striking subsection (b) 

and inserting the following: 

‘‘(b) An applicant’s failure to act within 

prescribed time limits in connection with requirements pertaining to an international 

application may be excused as provided in 

the treaty and the Regulations.’’; and 

(9) in section 371(d), in the third sentence, 

by striking ‘‘, unless it be shown to the satisfaction of the Director that such failure to 

comply was unavoidable’’. 

SEC. 203. EFFECTIVE DATE. 

(a) IN GENERAL.—Except as provided in 

subsection (b), the amendments made by this 

title shall be effective on the date that is 1 

year after the date of enactment of this Act 

and shall apply to all patents and to all applications for patent pending on or filed after 

the date that is 1 year after the date of enactment of this Act. 

(b) EXCEPTIONS.— 

(1) SECTION 201(A).—The amendments made 

by section 201(a) shall apply only to applications filed on or after the date that is 1 year 

after the date of enactment of this Act. 

(2) PATENT THAT IS SUBJECT OF LITIGATION.—The amendments made by this title 

shall have no effect with respect to any patent that is the subject of litigation in an action commenced before the date that is 1 

year after the date of enactment of this Act. 

By Mr. KYL: 

S. 3493. A bill to protect first amendment rights of journalists and internet 

service providers by preventing States 

and the United States from allowing 

meritless lawsuits arising from acts in 

furtherance of those rights, commonly 

called ‘‘Strategic Lawsuits Against 

Public Participation’’ or ‘‘SLAPPs’’, 

and for other purposes; to the Committee on the Judiciary. 

Mr. KYL. Mr. President, I rise today 

to introduce the Free Press Act. The 

FPA would create a Federal antiSLAPP statute for journalists, 

bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought 

against them that arise out of their 

speech on public issues. Once the special motion to dismiss is brought, the 

nonmoving party must present a prima 

facie case supporting the lawsuit; if the 

nonmovant fails to do so, the lawsuit is 

dismissed and fees and costs are awarded to the movant. 

Anti-SLAPP laws effectively make it 

impossible for frivolous or marginal 

libel lawsuits arising out of protected 

speech to advance beyond an initial 

stage of litigation. Such laws thereby 

protect journalists and bloggers from 

the financial impact of defending 

against such suits. Approximately 30 

States have anti-SLAPP laws, though 

their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties 

to remove some state SLAPP claims to 

Federal court. 

At the conclusion of my remarks 

today, I will submit for the record a 

section-by-section summary of the 

FPA. I will first, however, comment on 

several features of the bill, including 

the meaning of some of the language 

that is used, and Congress’ authority to 

enact such legislation. 

The FPA’s special motion to dismiss 

requires the plaintiff to present ‘‘prima 

facie evidence’’ supporting his cause of 

action. The standard definition of 

‘‘prima facie evidence,’’ which is employed by the FPA, is that given by 

Justice Story in his opinion for the 

court in Kelly v. Jackson, 31 U.S. 622, 

632, 1832: ‘‘What is prima facie evidence 

of a fact? It is such as, in judgment of 

law, is sufficient to establish a fact; 

and, if not rebutted, remains sufficient 

for that purpose.’’ For similar statements, see Bailey v. Alabama, 219 S.Ct. 

219, 234, 1911, quoting Kelly v. Jackson; 

and Neely v. United States, 150 F.2d 977, 

978, D.C. Cir. 1945, which notes ‘‘Justice 

Story’s often quoted definition of 

prima facie evidence.’’ 

This definition is also employed by 

Black’s Law Dictionary, which defines 

‘‘prima facie evidence’’ as: 

Such evidence as, in the judgment of the 

law, is sufficient to establish a given fact 

and which if not rebutted or contradicted, 

will remain sufficient. [Prima facie evidence], if unexplained or uncontradicted, is 

sufficient to sustain a judgment in favor of 

the issue which it supports, but [it] may be 

contradicted by other evidence. 

In a recent concurring and dissenting 

opinion, Justice Scalia went so far as 

to describe this definition of ‘‘prima 

facie evidence’’ as ‘‘canonical.’’ He also 

stated: 

The established meaning in Virginia, then, 

of the term ‘‘prima facie evidence’’ appears 

to be perfectly orthodox: It is evidence that 

suffices, on its own, to establish a particular 

fact. But it is hornbook law that this is true 

only to the extent that the evidence goes 

unrebutted. ‘‘Prima facie evidence of a fact 

is such evidence as, in judgment of law, is 

sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.’’ 

7B Michie’s Jurisprudence of Virginia and 

West Virginia § 32, 1998, (emphasis added). 

Virginia v. Black, 538 U.S. 343, 369–70, 

2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part. 

Other Federal courts continue to use 

this definition of ‘‘prima facie evidence:’’ 

‘‘A prima facie showing simply means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains 

sufficient for that purpose.’’ Cumulus Media, 

Inc. v. Clear Channel Communications, Inc., 304 

F.3d 1167, 1176 n.13, 11th Cir. 2002. 


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S5984 CONGRESSIONAL RECORD — SENATE August 2, 2012 

‘‘Under [the prima facie evidence] standard, it is plaintiff’s burden to demonstrate 

the existence of every fact required to satisfy both the forum’s long-arm statute and 

the Due Process Clause of the Constitution. 

The prima facie showing must be based upon 

evidence of specific facts set forth in the 

record. To meet this requirement, the plaintiff must go beyond the pleadings and make 

affirmative proof. However, in evaluating 

whether the prima facie standard has been 

satisfied, the district court is not acting as a 

factfinder; rather, it accepts properly supported proffers of evidence by a plaintiff as 

true and makes its ruling as a matter of law. 

When the district court employs the prima 

facie standard appellate review is de novo.’’ 

United States v. Swiss American Bank, Ltd., 274 

F.3d 610, 618–19, 1st Cir. 2001, citations and 

quotations omitted. 

‘‘Prima facie evidence consists of specific 

factual information which, in the absence of 

rebuttal, is sufficient to show that a fairness 

doctrine violation exists. * * * * In general 

terms, prima facie evidence is evidence 

which is sufficient in law to sustain a finding 

in favor of a claim, but which may be contradicted.’’ American Security Council Education 

Foundation v. F.C.C., 607 F.2d 438, 445–46 & 

n.24, D.C. Cir. 1979. 

‘‘A prima facie case is established by evidence adduced by the plaintiff in support of 

his case up to the time such evidence stands 

unexplained and uncontradicted. The words 

‘prima facie,’ when used to describe evidence, ex vi termini imply that such evidence 

may be rebutted by competent testimony. 

The term prima facie evidence’ implies evidence which may be rebutted and overcome, 

and simply means that in the absence of explanatory or contradictory evidence the finding shall be in accordance with the proof establishing the prima facie case.’’ In re Chicago Rys. Co, 175 F.2d 282, 289–90, 7th Cir. 1949, 

citations and quotations omitted. 

‘‘The term prima facie evidence means * * 

* * [e]vidence good and sufficient on its face; 

such evidence as, in the judgment of the law, 

is sufficient to establish a given fact, or the 

group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. 

Prima facie evidence is evidence which, if 

unexplained or uncontradicted, is sufficient 

to sustain a judgment in favor of the issue 

which it supports, but which may be contradicted by other evidence.’’’ Gibson v. Zant, 

547 F.Supp. 1270, 1276, M.D. Ga. 1982, quoting 

Black’s Law Dictionary, 5th Edition. 

‘Prima facie evidence’ is evidence which, if 

unrebutted or unexplained, is sufficient to 

establish the fact to which it is related. It 

proves the fact until other proof contradicts 

or overcomes the factual hypothesis initially 

set up by the presumption.’’ DAL Int’l Trading Co. v. The SS Milton J. Foreman, 171 

F.Supp. 794, 798, E.D.N.Y. 1959. 

The FPA makes its special motion to 

dismiss available in cases arising out of 

speech on matters of public concern. It 

bears emphasis that ‘‘matters of public 

concern’’ include commentary on consumer products. As the Pennsylvania 

intermediate court of appeals recently 

noted, in American Future Systems, Inc. 

v. Better Business Bureau of Eastern 

Pennsylvania, 872 A.2d 1202, 1211, Pa. 

Super. 2005, a ‘‘statement regarding the 

effectiveness of a consumer product addresses a matter of public concern.’’ 

Similarly, the U.S. Court of Appeals 

for the Ninth Circuit, in Unelko Corp. v. 

Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, 

concluded that ‘‘statements about 

product effectiveness’’ address matters 

of public concern. And the Second Circuit, in Flamm v. American Assoc. of 

University Women, 201 F.3d 144, 150, 2d 

Cir. 2000, has held that a negative evaluation of an attorney’s services, directed to potential customers, addresses a matter of public concern. 

The following quotation from a New 

Jersey Supreme Court opinion, citing 

other courts’ decisions, illustrates the 

breadth of support for the proposition 

that commentary on products or services offered to consumers is a matter of 

public concern. That court noted, in 

Dairy Stores, Inc. v. Sentinel Publishing 

Co., Inc., 104 N.J. 125, 144–45, 516 A.2d 

220, 230, 1986, that: 

Some courts have developed criteria for determining whether the activities and products of corporations constitute matters of 

public interest. As previously indicated, 

matters of public interest include such essentials of life as food and water. See Steaks 

Unlimited, Inc. v. Deaner, supra, 623 F.2d 264; 

All Diet Foods Distribs., Inc. v. Time, Inc., 

supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner 

v. American Medical Ass’n, supra, 12 

Wash.App. 215, 529 P.2d 863. Widespread effects of a product are yet another indicator 

that statements about the product are in the 

public interest. Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th Cir.1971) (possible causes of cancer are a matter of public 

concern); Lewis v. Reader’s Digest Ass’n, 

supra, 366 F.Supp. at 156, article on an arthritis cure is in public interest because significant portion of population is afflicted 

with arthritis; American Broadcasting Cos., 

Inc. v. Smith Cabinet Mfg. Co., Inc., 160 

Ind.App. 367,——, 312 N.E.2d 85, 90, 1974, flammability of 25,000 baby cribs held to be matter of public interest; Krebiozen Research 

Found. v. Beacon Press, Inc., 334 Mass. 86, 

——, 134 N.E.2d 1, 6–9, cert. denied, 352 U.S. 

848, 77 S.Ct. 65, 1 L.Ed.2d 58, 1956, possible 

cures for cancer are matter of public concern. Still another criterion is substantial 

government regulation of business activities 

and products. 

The FPA thus protects speech consisting of consumer commentary that 

focuses solely on the quality, reliability, or effectiveness of a consumer 

product, regardless of whether such 

commentary addresses broader social 

issues. The quality of goods and services offered to the public is itself a 

matter of public concern. The FPA protects the dissemination of any information about a product that would be of 

interest to potential consumers. 

Finally, the FPA allows removal to 

Federal court to be sought by a defendant. Although current law only allows 

removal when the Federal question appears on the face of a well-pleaded 

complaint, this rule is only statutory. 

Congress is well within its power to 

allow removal of cases that raise a 

colorable Federal defense. 

Two current Federal statutes clearly 

allow removal by defendants based 

only on the assertion of a Federal defense. One is 28 U.S.C. § 1442(a), which 

allows Federal officers, among others, 

to remove a state civil action or prosecution to federal court. The other is 9 

U.S.C. § 205, which allows removal of 

disputes that appear to be covered by 

an international arbitration agreement. 

Although such a limitation is not 

stated on the face of section 1442, the 

Supreme Court has long held that ‘‘federal officer removal must be predicated 

on the allegation of a colorable federal 

defense.’’ Mesa v. California, 489 U.S. 

121, 129, 1989. See also id. at 133–34, 

which notes that ‘‘an unbroken line of 

this Court’s decisions extending back 

nearly a century and a quarter have 

understood all the various incarnations 

of the federal officer removal statute 

to require the averment of a federal defense.’’ 

The most recent Supreme Court pronouncements confirm that ‘Article III 

‘arising under’ jurisdiction is broader 

than federal question jurisdiction 

under § 1331,’’ Verlinden B.V. v. Central 

Bank of Nigeria, 461 U.S. 480, 495 (1983), 

and note that Article III federal-question jurisdiction ‘‘has been construed 

as permitting Congress to extend federal jurisdiction to any case of which 

federal law potentially forms an ingredient,’’ Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 

8 n.8 (quoting Osborn v. Bank of the 

United States, 9 What. 738, 823 (1824)). 

In Martin v. Hunter’s Lessee, 1 Wheat. 

304, 348–49, 1816, the Supreme Court also 

noted that 

‘‘[t]he judicial power * * * * was not to be 

exercised exclusively for the benefit of parties who might be plaintiffs, and would elect 

the national forum, but also for the protection of defendants who might be entitled to 

try their rights, or assert their privileges, in 

the same forum,’’ and further noting that 

‘‘we are referred to the power which it is admitted congress possess to remove suits from 

state courts to the national courts.’’ 

The Federal-defense-based removal 

authorized by the FPA is thus well 

within Congress’s constitutional authority. 

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in 

the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD as follows: 

S. 3493 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Free Press 

Act of 2012’’. 

SEC. 2. SPECIAL MOTION TO DISMISS. 

Part VI of title 28, United States Code, is 

amended by adding at the end the following: 

‘‘CHAPTER 182—SPECIAL MOTION TO 

DISMISS 

‘‘Sec. 

‘‘4201. Special motion to dismiss. 

‘‘4202. Stay of discovery. 

‘‘4203. Exceptions for governmental litigation and commercial speech. 

‘‘4204. Interlocutory appeal. 

‘‘4205. Special motion to quash. 

‘‘4206. Removal. 

‘‘4207. Fees, costs, and sanctions. 

‘‘§ 4201. Special motion to dismiss 

‘‘(a) IN GENERAL.—A representative of the 

news media (as defined in section 552(a)(4) of 

title 5) may file a special motion to dismiss 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE S5985 

any claim asserted against the representative of the news media in a civil action if the 

claim arises in whole or in part from an oral 

or written statement or other expression 

that is on a matter of public concern or that 

relates to a public official or figure. 

‘‘(b) TIME LIMIT.—Unless the court grants 

an extension, a special motion to dismiss 

under this section shall be filed— 

‘‘(1) not later than 45 days after the date of 

service of the claim, if the claim is filed in 

Federal court; or 

‘‘(2) not later than 30 days after the date of 

removal, if the claim is removed to Federal 

court under section 4206. 

‘‘(c) AMENDMENTS.—If a special motion to 

dismiss is filed under this section as to a 

claim, the claim may not be amended or supplemented until a final and unappealable 

order is entered denying the special motion 

to dismiss. 

‘‘(d) BURDENS OF PROOF.— 

‘‘(1) MOVING PARTY.—A representative of 

the news media filing a special motion to 

dismiss under this section as to a claim shall 

have the burden of making a prima facie 

showing that the claim is a claim described 

in subsection (a). 

‘‘(2) NONMOVING PARTY.—If the movant 

meets the burden described in paragraph (1) 

for a claim, the party asserting the claim 

shall bear the burden of proving that the 

claim is— 

‘‘(A) legally sufficient; and 

‘‘(B) supported by a prima facie showing, 

based on admissible evidence, of facts sufficient to sustain a favorable judgment. 

‘‘(3) FAILURE TO MEET BURDEN.—If the nonmoving party fails to meet the burden required for a claim under paragraph (2), the 

claim shall be dismissed with prejudice. 

‘‘§ 4202. Stay of discovery 

‘‘(a) IN GENERAL.—Except as provided in 

subsection (b), upon the filing of a special 

motion to dismiss under section 4201, discovery proceedings in the action shall be 

stayed until a final and unappealable order is 

entered on the special motion to dismiss. 

‘‘(b) LIMITATION AND EXCEPTION.— 

‘‘(1) LIMITATION.—A stay issued under subsection (a) based on the filing of a special 

motion to dismiss that only seeks dismissal 

of a third-party claim or a cross claim asserted by a defendant shall only stay discovery that— 

‘‘(A) is requested by the party asserting 

the third-party claim or cross claim; or 

‘‘(B) relates solely to the third-party claim 

or cross claim. 

‘‘(2) EXCEPTION.—Upon motion and for good 

cause shown, a court may order that specified discovery be conducted. 

‘‘§ 4203. Exceptions for governmental litigation and commercial speech 

‘‘A special motion to dismiss under section 

4201 may not be filed as to a claim that— 

‘‘(1) is brought by the Federal Government 

or the attorney general of a State; or 

‘‘(2) arises out of a statement offering or 

promoting the sale of the goods or services of 

the person making the statement. 

‘‘§ 4204. Interlocutory appeal 

‘‘An aggrieved party may take an immediate interlocutory appeal from an order 

granting or denying in whole or in part a 

special motion to dismiss under section 4201. 

‘‘§ 4205. Special motion to quash 

‘‘(a) IN GENERAL.—A person whose personally identifying information is sought in 

connection with a claim that arises in whole 

or in part from an oral or written statement 

or other expression that is on a matter of 

public concern or that relates to a public official or figure, or a person from whom such 

information is sought in connection with 

such a claim, may file a special motion to 

quash the request or order to produce the information. 

‘‘(b) BURDENS OF PROOF.— 

‘‘(1) MOVING PARTY.—A person filing a special motion to quash a request or order 

under this section shall have the burden of 

making a prima facie showing that the request or order is a request or order described 

in subsection (a). 

‘‘(2) NONMOVING PARTY.—If the movant 

meets the burden described in paragraph (1), 

the party who made the request or sought 

the order shall bear the burden of showing 

that the claim described in subsection (a) 

is— 

‘‘(A) legally sufficient; and 

‘‘(B) supported by a prima facie showing, 

based on admissible evidence, of facts sufficient to sustain a favorable judgment. 

‘‘(3) FAILURE TO MEET BURDEN.—If the nonmoving party fails to meet the burden required for a claim under paragraph (2), the 

request or order to produce the personally 

identifying information shall be quashed. 

‘‘§ 4206. Removal 

‘‘(a) SPECIAL MOTION TO DISMISS.— 

‘‘(1) IN GENERAL.—Except as provided in 

paragraph (2), a civil action in a State court 

that raises a claim that colorably appears to 

be a claim described in section 4201(a) may 

be removed to the district court of the 

United States for the district and division 

embracing the place where the civil action is 

pending by a party who may file and who 

seeks to file a special motion to dismiss 

under section 4201 that asserts a colorable 

defense based on the Constitution or laws of 

the United States. 

‘‘(2) EXCEPTION.—Removal may not be requested under paragraph (1) on the basis of a 

third-party claim or a cross claim asserted 

by a defendant. 

‘‘(3) REMAND.—If a civil action is removed 

under paragraph (1), and a final and 

unappealable order is entered denying the 

special motion to dismiss filed under section 

4201, the court may remand the remaining 

claims to the State court from which the 

civil action was removed. 

‘‘(b) SPECIAL MOTION TO QUASH.— 

‘‘(1) IN GENERAL.—A proceeding in a State 

court in which a request or order that 

colorably appears to be a request or order described in section 4205(a) is sought, issued, or 

sought to be enforced may be removed to the 

district court of the United States for the 

district and division embracing the place 

where the civil action is pending by a person 

who may file and who seeks to file a special 

motion to quash under section 4205 that asserts a colorable defense based on the Constitution or laws of the United States. 

‘‘(2) LIMITATION.—If removal is requested 

under paragraph (1) for a proceeding in which 

a request or order described in section 4205(a) 

is sought, issued, or sought to be enforced, 

and there is no basis for removal of the remainder of the civil action in connection 

with which the proceeding is brought, or no 

party has requested removal of the remainder of the civil action, only the proceeding in 

which the request or order described is section 4205(a) is sought, issued, or sought to be 

enforced may be removed. 

‘‘§ 4207. Fees, costs, and sanctions 

‘‘(a) ATTORNEY’S FEES AND COSTS.—Except 

as provided in subsection (c), a court shall 

award a person who files and prevails on a 

special motion to dismiss under section 4201 

or a special motion to quash under section 

4205 litigation costs, expert witness fees, and 

reasonable attorney’s fees. 

‘‘(b) FRIVOLOUS MOTIONS OR PETITIONS.— 

Except as provided in subsection (c)(1), if a 

court finds that a special motion to dismiss 

under section 4201, a special motion to quash 

under section 4205, or a notice of removal 

under section 4206 is frivolous or is solely intended to cause unnecessary delay, the court 

may award litigation costs, expert witness 

fees, and reasonable attorney’s fees to the 

party that responded to the motion or notice. 

‘‘(c) EXCEPTIONS.— 

‘‘(1) GOVERNMENTAL ENTITIES.—The Federal 

Government and the government of a State, 

or political subdivision thereof, may not recover litigation costs, expert witness fees, or 

attorney’s fees under this section. 

‘‘(2) NOVEL LEGAL QUESTIONS.—A court may 

not award litigation costs, expert witness 

fees, or attorney’s fees under subsection (a) 

if the grant of the special motion to dismiss 

under section 4201 or the special motion to 

quash under section 4205 depended on the resolution of a novel or unsettled legal question 

in favor of the movant.’’. 

SEC. 3. RELATIONSHIP TO OTHER LAWS. 

Nothing in this Act or the amendments 

made by this Act shall preempt or supersede 

any Federal or State statutory, constitutional, case, or common law that provides 

the equivalent or greater protection for persons engaging in activities protected by the 

First Amendment to the Constitution of the 

United States. 

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS. 

(a) TABLE OF CHAPTERS.—The table of 

chapters for part VI of title 28, United States 

Code, is amended by adding at the end the 

following: 

‘‘182. Special motion to dismiss ......... 4201’’. 

(b) INTERLOCUTORY APPEALS.—Section 

1292(a) of title 28, United States Code, is 

amended— 

(1) in paragraph (3), by striking the period 

at the end and inserting ‘‘; and’’; and 

(2) by adding at the end the following: 

‘‘(4) Interlocutory orders granting or denying in whole or in part special motions to 

dismiss under section 4201.’’. 

(c) NONDISCHARGABILITY OF FEES AND

COSTS.—Section 523(a) of title 11, United 

States Code, is amended— 

(1) in paragraph (18), by striking ‘‘or’’ at 

the end; 

(2) in paragraph (19), by striking the period 

at the end and inserting ‘‘; or’’; and 

(3) by inserting after paragraph (19) the following: 

‘‘(20) for litigation costs, expert witness 

fees, or reasonable attorney’s fees awarded 

by a court under chapter 182 of title 28 or 

under comparable State laws.’’. 

SEC. 5. EFFECTIVE DATE; APPLICABILITY. 

(a) EFFECTIVE DATE.—Except as provided in 

subsection (b), this Act and the amendments 

made by this Act shall— 

(1) take effect on the date of enactment of 

this Act; and 

(2) apply to a claim filed on or after the 

date of enactment of this Act. 

(b) CLAIMS FILED BEFORE ENACTMENT.—For 

a claim that was filed before and is pending 

on the date of enactment of this Act— 

(1) this Act and the amendments made by 

this Act shall apply to the claim if the court 

with original jurisdiction of the claim has 

not entered a judgment on the merits as to 

the claim as of the date of enactment of this 

Act; and 

(2) for a claim described in paragraph (1), 

the periods under sections 4201 and 1446 of 

title 28, United States Code, as amended by 

this Act, shall begin on the date of enactment of this Act. 

FREE PRESS ACT: SECTION-BY-SECTION

SUMMARY

Section 4201. Special Motion to Dismiss. A 

‘‘representative of the news media’’ (as defined in FOIA) may file a special motion to 

dismiss a legal claim arising out of speech on 


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S5986 CONGRESSIONAL RECORD — SENATE August 2, 2012 

a matter of public concern or that relates a 

public official or figure. Once the motion is 

properly brought, the nonmovant must show 

that the lawsuit is supported by a prima 

facie showing of facts sufficient to sustain a 

favorable judgment. If the nonmovant fails 

to meet this burden, the lawsuit is dismissed 

with prejudice. 

Section 4202. Stay of Discovery. Upon filing of the special motion to dismiss, discovery is stayed absent good cause shown. If 

the motion is filed with respect to a cross 

claim or third-party claim, discovery is 

stayed only with respect to that claim. (This 

exception is made to prevent defendants 

from using the special motion to dismiss to 

affect litigation in which the complaint does 

not assert claims arising out of speech on 

public issues.) 

Section 4203. Governmental Litigation and 

Commercial Speech Exceptions. A special 

motion to dismiss may not be brought 

against a claim that is brought by the Federal government or a State Attorney General, or that arises out of speech offering or 

promoting the sale of the speaker’s goods or 

services. 

Section 4204. Interlocutory Appeal. Either 

side may bring an immediate appeal of the 

denial or grant of a special motion to dismiss. 

Section 4205. Special Motion to Quash. A 

party may move to quash a request to obtain 

the personally identifying information of a 

person that is made in relation to a legal 

claim arising out of speech on public issues. 

(E.g., a company seeks discovery from an 

ISP of the identity of persons posting unfavorable comments about the company’s 

goods or services on a blog.) If the motion to 

quash is properly brought, the nonmovant 

must show that the legal claim is supported 

by a prima facie showing of facts sufficient 

to sustain a favorable judgment. If the nonmovant fails to meet this burden, the request for personally identifying information 

is quashed. 

Section 4206. Removal. A state-court claim 

arising out of speech on public issues may be 

removed to federal court by a party that intends to file a special motion to dismiss the 

claim. Removal may not be requested on the 

basis of a cross claim or third-party claim. 

(This exception is made to prevent defendants from removing cases in which the complaint does not assert claims arising out of 

speech on public issues.) A proceeding to enforce discovery requesting personally identifying information may also be removed, but 

removal is limited to the discovery-enforcement proceeding. 

Section 4207. Fees, Costs, and Sanctions. A 

party that prevails on a special motion to 

dismiss or quash shall be entitled to reasonable attorneys fees and costs. Frivolous motions to dismiss or quash or remove shall be 

subject to sanctions. Fees may not be recovered by the government, or in cases that 

turn on the resolution of a novel legal question. 

By Mr. COCHRAN (for himself 

and Mr. WICKER): 

S. 3496. A bill to amend title XVIII of 

the Social Security Act to permit direct payment to pharmacies for certain 

compounded drugs that are prepared by 

the pharmacies for a specific beneficiary for use through an implanted 

infusion pump; to the Committee on 

Finance. 

Mr. COCHRAN. Mr. President, on 

May 13, 2011, the Centers for Medicare 

and Medicaid Services issued Change 

Request 7397 to stop compounding 

pharmacies that prepare medications 

used in implanted infusion pumps from 

billing Medicare directly for these 

services. This was an attempt to reverse a policy that has been permissible in several States for over 20 years. 

Since then, I have worked with Senator 

WICKER and other Members of Congress 

to delay the implementation of this 

change until its effects have been fully 

considered. 

This policy change has been met with 

opposition from pharmacies, physicians, and patients. In Mississippi, 

pharmacies are prohibited from selling 

infused pain medications to physicians, 

which would result in decreased access 

to effective treatments for chronic 

pain disorders. While this is a particular issue in my State, this policy 

change will have serious implications 

across the Nation. 

The Centers for Medicare and Medicaid Services has worked with us over 

the past year to delay this policy 

change and to propose a rule that is 

now receiving comments. However, 

CMS officials have continued to demonstrate a lack of understanding about 

the potential consequences of changing 

payment policy. We should protect 

practices that have been effective in 

treating patients and support those 

who supply drugs necessary for the 

well-being of patients. This bill would 

explicitly allow compounding pharmacies to bill Medicare directly for 

their services in the interest of helping 

patients continue to receive the quality care they deserve. 

By Mr. REID (for himself and Mr. 

MCCONNELL): 

S. 3510. A bill to prevent harm to the 

national security or endangering the 

military officers and civilian employees to whom internet publication of 

certain information applies, and for 

other purposes; considered and passed. 

Mr. REID. Mr. President, I ask unanimous consent that the text of the bill 

be printed in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD as follows: 

S. 3510 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. EFFECTIVE DATE DELAY. 

The STOCK Act (Public Law 112–105) is 

amended— 

(1) in section 8(a)(1), by striking ‘‘August 

31, 2012’’ and inserting ‘‘September 30, 2012’’; 

and 

(2) in section 11(a)(1), by striking ‘‘August 

31, 2012’’ and inserting ‘‘September 30, 2012’’. 

SEC. 2. IMPLEMENTATION OF PTR REQUIREMENTS UNDER STOCK ACT. 

Effective September 30, 2012, for purposes 

of implementing subsection (l) of section 103 

of the Ethics in Government Act of 1978 (as 

added by section 6 of the STOCK Act, Public 

Law 112–105) for reporting individuals whose 

reports under section 101 of such Act (5 

U.S.C. App. 101) are required to be filed with 

the Clerk of the House of Representatives, 

section 102(e) of such Act (5 U.S.C. App. 

102(e)) shall apply as if the report under such 

subsection (l) were a report under such section 101 but only with respect to the transaction information required under such subsection (l). 

By Mr. HOEVEN (for himself, Mr. 

CONRAD, Mr. BAUCUS, Mr. 

MCCONNELL, Mr. KOHL, Mr. 

PORTMAN, Ms. LANDRIEU, Mr. 

BOOZMAN, Mr. MANCHIN, Mr. 

BLUNT, Mr. WARNER, Mr. JOHNSON of Wisconsin, Mr. PRYOR, 

Mr. MORAN, Mrs. MCCASKILL, 

Mr. ALEXANDER, Mr. NELSON of 

Nebraska, Mr. TOOMEY, Mr. 

NELSON of Florida, Mr. GRAHAM, Mr. CASEY, Mr. THUNE, Mr. 

WEBB, and Mr. HATCH): 

S. 3512. A bill to amend subtitle D of 

the Solid Waste Disposal Act to facilitate recovery and beneficial use, and 

provide for the proper management and 

disposal, of materials generated by the 

combustion of coal and other fossil 

fuels; to the Committee on Environment and Public Works. 

Mr. HOEVEN. Mr. President, I rise 

today to introduce legislation on another matter, important energy legislation for our country. I am today introducing the Hoeven-Conrad-Baucus 

Coal Ash Recycling and Oversight Act 

of 2012. 

In my home State of North Dakota 

there is a large powerplant just north 

of the State capital in Bismarck. It is 

a coal creek power station. Now this 

power station generates 1,100 

megawatts of electricity every year. 

There are two 550 megawatt plants. It 

has the latest, greatest technology 

emission control and clean coal technology. They capture the steam that 

was formally exhausted from the plant. 

They capture that steam and use it to 

run an ethanol plant. They produce 

transportation fuel with steam, a byproduct of the electric generation process. 

One of the other things they do, instead of land filling the coal ash, fly 

ash, or coal residuals, they recycle. So, 

in essence, they take that coal ash— 

they work with a natural resource 

company, Headwaters, based out of 

Utah, and they turn the coal ash into a 

concrete product, FlexCrete. It is used 

to make roads, bridges, buildings, and 

also products like shingles. They make 

building materials. 

So whereas they used to take about 

600,000 tons a year of coal residuals and 

coal ash flash and landfill it, and it 

costs $6 a ton or so to landfill it, now 

they take that 600,000 tons a year of fly 

ash and residuals and turn it into 

building products. 

The difference instead of paying to 

dispose of something and now being 

paid to recycle something is about a 

$16 million a year revenue item for 

that plant. That means lower cost for 

electricity for businesses in States 

such as the great State of North Dakota and the great State of Minnesota 

and other States as well. It truly benefits our consumers, our families, and 

our economy. It benefits small businesses throughout the upper Midwest. 

So it is truly a great example of American ingenuity and innovation. 


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