I 

111TH CONGRESS 

1ST SESSION H. R. 4364 

To protect first amendment rights of petition and free speech by preventing 

States and the United States from allowing meritless lawsuits arising 

from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 16, 2009 

Mr. COHEN introduced the following bill; which was referred to the Committee 

on the Judiciary 

A BILL 

To protect first amendment rights of petition and free speech 

by preventing States and the United States from allowing 

meritless lawsuits arising from acts in furtherance of 

those rights, commonly called ‘‘SLAPPs’’, 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 ‘‘Citizen Participation 

5 Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds and declares that— 


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1 (1) the framers of our Constitution, recognizing 

2 participation in government and freedom of speech 

3 as inalienable rights essential to the survival of de4 mocracy, secured their protection through the First 

5 Amendment to the United States Constitution; 

6 (2) the communications, information, opinions, 

7 reports, testimony, claims and arguments that indi8 viduals, organizations and businesses provide to the 

9 government are essential to wise government deci10 sions and public policy, the public health, safety, and 

11 welfare, effective law enforcement, the efficient oper12 ation of government programs, the credibility and 

13 trust afforded government, and the continuation of 

14 America’s representative democracy; 

15 (3) civil lawsuits and counterclaims, often 

16 claiming millions of dollars in damages, have been 

17 and are being filed against thousands of individuals, 

18 organizations, and businesses based upon their valid 

19 exercise of the rights to petition or free speech, in20 cluding seeking relief, influencing action, informing, 

21 communicating, and otherwise participating with 

22 government, the electorate, or in matters of public 

23 interest; 

24 (4) such lawsuits, called Strategic Lawsuits 

25 Against Public Participation or SLAPPs, are often 


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1 ultimately dismissed as groundless or unconstitu2 tional, but not before the defendants are put to 

3 great expense, harassment, and interruption of their 

4 productive activities; 

5 (5) it is in the public interest for individuals, 

6 organizations and businesses to participate in mat7 ters of public concern and provide information to 

8 public entities and other citizens on public issues 

9 that affect them without fear of reprisal through 

10 abuse of the judicial process; 

11 (6) the threat of financial liability, litigation 

12 costs, destruction of one’s business, loss of one’s 

13 home, and other personal losses from groundless 

14 lawsuits seriously impacts government, interstate 

15 commerce, and individual rights by significantly 

16 chilling public participation in government, public 

17 issues, and in voluntary service; 

18 (7) SLAPPs are an abuse of the judicial proc19 ess that waste judicial resources and clog the al20 ready over-burdened court dockets; 

21 (8) while some courts and State legislatures 

22 have recognized and discouraged SLAPPs, protec23 tion against SLAPPs has not been uniform or com24 prehensive; and 


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1 (9) some SLAPP victims are deprived of the re2 lief to which they are entitled because the current 

3 bankruptcy law allows for the discharge of fees, 

4 costs and damages awarded against a party for 

5 maintaining a SLAPP. 

6 SEC. 3. IMMUNITY FOR PETITION ACTIVITY. 

7 (a) IMMUNITY.—Any act of petitioning the govern8 ment made without knowledge of falsity or reckless dis9 regard of falsity shall be immune from civil liability. 

10 (b) BURDEN AND STANDARD OF PROOF.—A plaintiff 

11 must prove knowledge of falsity or reckless disregard of 

12 falsity by clear and convincing evidence. 

13 SEC. 4. PROTECTION FOR PETITION AND SPEECH ACTIV14 ITY. 

15 Any act in furtherance of the constitutional right of 

16 petition or free speech shall be entitled to the procedural 

17 protections provided in this Act. 

18 SEC. 5. SPECIAL MOTION TO DISMISS. 

19 (a) IN GENERAL.—A party may file a special motion 

20 to dismiss any claim arising from an act or alleged act 

21 in furtherance of the constitutional right of petition or free 

22 speech within 45 days after service of the claim if the 

23 claim was filed in Federal court or, if the claim was re24 moved to Federal court pursuant to section 6 of this Act, 

25 within 15 days after removal. 


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1 (b) BURDENS OF THE PARTIES.—A party filing a 

2 special motion to dismiss under this Act has the initial 

3 burden of making a prima facie showing that the claim 

4 at issue arises from an act in furtherance of the constitu5 tional right of petition or free speech. If the moving party 

6 meets this burden, the burden shifts to the responding 

7 party to demonstrate that the claim is both legally suffi8 cient and supported by a sufficient prima facie showing 

9 of facts to sustain a favorable judgment. 

10 (c) STAY OF DISCOVERY.—Upon the filing of a spe11 cial motion to dismiss, discovery proceedings in the action 

12 shall be stayed until notice of entry of an order disposing 

13 of the motion, except that the court, on noticed motion 

14 and for good cause shown, may order that specified dis15 covery be conducted. 

16 (d) EXPEDITED HEARING.—The court shall hold an 

17 expedited hearing on the special motion to dismiss, and 

18 issue a ruling as soon as practicable after the hearing. The 

19 parties may submit the pleadings and affidavits stating 

20 the facts upon which the liability or defense is based. The 

21 court shall explain the reasons for its grant or denial of 

22 the motion in a statement for the record. If the special 

23 motion to dismiss is granted, dismissal shall be with preju24 dice. 


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1 (e) IMMEDIATE APPEAL.—The defendant shall have 

2 a right of immediate appeal from a district court order 

3 denying a special motion to dismiss in whole or in part. 

4 SEC. 6. FEDERAL REMOVAL JURISDICTION. 

5 (a) IN GENERAL.—A civil action commenced in a 

6 State court against any person who asserts as a defense 

7 the immunity provided for in section 3 of this Act, or as8 serts that the action arises from an act in furtherance of 

9 the constitutional right of petition or free speech, may be 

10 removed by the defendant to the district court of the 

11 United States for the district and division embracing the 

12 place wherein it is pending. 

13 (b) REMAND OF REMAINING CLAIMS.—A court exer14 cising jurisdiction under this section shall remand any 

15 claims against which the special motion to dismiss has 

16 been denied, as well as any remaining claims against 

17 which a special motion to dismiss was not brought, to the 

18 State court from which it was removed. 

19 (c) TIMING.—A court exercising jurisdiction under 

20 this section shall remand an action if a special motion to 

21 dismiss is not filed within 15 days after removal. 

22 SEC. 7. SPECIAL MOTION TO QUASH. 

23 (a) IN GENERAL.—A person whose personally identi24 fying information is sought in connection with an action 

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1 ance of the constitutional right of petition or free speech 

2 may make a special motion to quash the discovery order, 

3 request or subpoena. 

4 (b) BURDENS OF THE PARTIES.—The person bring5 ing a special motion to quash under this section must 

6 make a prima facie showing that the underlying claim 

7 arises from an act in furtherance of the constitutional 

8 right of petition or free speech. If this burden is met, the 

9 burden shifts to the plaintiff in the underlying action to 

10 demonstrate that the underlying claim is both legally suffi11 cient and supported by a sufficient prima facie showing 

12 of facts to sustain a favorable judgment. This standard 

13 shall apply only to a special motion to quash brought 

14 under this section. 

15 SEC. 8. FEES AND COSTS. 

16 (a) ATTORNEY’S FEES.—The court shall award a 

17 moving party who prevails on a special motion to dismiss 

18 or quash the costs of litigation, including a reasonable at19 torney’s fee. 

20 (b) FRIVOLOUS MOTIONS AND REMOVAL.—If the 

21 court finds that a special motion to dismiss, special motion 

22 to quash, or the removal of a claim under this Act is frivo23 lous or is solely intended to cause unnecessary delay, the 

24 court may award a reasonable attorney’s fees and costs 

25 to the responding party. 


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1 (c) GOVERNMENT ENTITIES.—A government entity 

2 may not recover fees pursuant to this section. 

3 SEC. 9. BANKRUPTCY NONDISCHARGABILITY OF FEES AND 

4 COSTS. 

5 Fees or costs awarded against a party by a court for 

6 the prosecution of any claim finally dismissed pursuant 

7 to this Act, or any subpoena or discovery order quashed 

8 pursuant to this Act, or any claim finally dismissed pursu9 ant to a State anti-SLAPP law, shall not be dischargeable 

10 in bankruptcy under section 1328 or section 523 of title 

11 11, United States Code. 

12 SEC. 10. EXEMPTIONS. 

13 (a) PUBLIC ENFORCEMENT.—Sections 4 through 8 

14 of this Act shall not be available in any action brought 

15 solely on behalf of the public or solely to enforce an impor16 tant right affecting the public interest. 

17 (b) COMMERCIAL SPEECH.—This Act shall not apply 

18 to any claim for relief brought against a person primarily 

19 engaged in the business of selling or leasing goods or serv20 ices, if the statement or conduct from which the claim 

21 arises is a representation of fact made for the purpose of 

22 promoting, securing or completing sales or leases of, or 

23 commercial transactions in, the person’s goods or services, 

24 and the intended audience is an actual or potential buyer 

25 or customer. 


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1 (c) ‘‘SLAPP-BACK’’ SUITS.—This Act shall not be 

2 available to dismiss any action or claim arising from a 

3 claim that has been dismissed pursuant to this Act or to 

4 a State anti-SLAPP law. 

5 SEC. 11. DEFINITIONS. 

6 In this Act: 

7 (1) ACT IN FURTHERANCE OF THE RIGHT OF

8 FREE SPEECH.—The term ‘‘act in furtherance of the 

9 right of free speech’’ includes but is not limited to— 

10 (A) any written or oral statement made in 

11 connection with an issue under consideration or 

12 review by a legislative, executive, or judicial 

13 body, or any other official proceeding author14 ized by law; 

15 (B) any written or oral statement made in 

16 a place open to the public or a public forum in 

17 connection with an issue of public interest; or 

18 (C) any other conduct in furtherance of 

19 the exercise of the constitutional right of peti20 tion or the constitutional right of free speech in 

21 connection with an issue of public interest. 

22 (2) ACT OF PETITIONING THE GOVERNMENT.— 

23 The term ‘‘act of petitioning the government’’ in24 cludes but is not limited to any written or oral state25 ment— 


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1 (A) made or submitted before a legislative, 

2 executive, or judicial body, or any other official 

3 proceeding authorized by law; or 

4 (B) any written or oral statement encour5 aging a statement before a legislative, executive, 

6 or judicial body, or any other official proceeding 

7 authorized by law. 

8 (3) CLAIM.—The term ‘‘claim’’ includes any 

9 civil lawsuit, claim, complaint, cause of action, cross10 claim, counterclaim, or other judicial pleading or fil11 ing requesting relief. 

12 (4) GOVERNMENT ENTITY.—The term ‘‘govern13 ment entity’’ includes the United States, a branch, 

14 department, agency, State, or subdivision of a State, 

15 or other public authority. 

16 (5) ISSUE OF PUBLIC INTEREST.—The term 

17 ‘‘issue of public interest’’ includes an issue related to 

18 health or safety; environmental, economic or commu19 nity well-being; the government; a public figure; or 

20 a good, product or service in the market place. 

21 ‘‘Issue of public interest’’ shall not be construed to 

22 include private interests, such as statements directed 

23 primarily toward protecting the speaker’s business 

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1 ing information about a matter of public signifi2 cance. 

3 (6) PERSONALLY IDENTIFYING INFORMA4 TION.—The term ‘‘personally identifying informa5 tion’’ means first and last name or last name only; 

6 home or other physical address including temporary 

7 shelter or housing and including a street name or 

8 ZIP Code; full date of birth; email address or other 

9 online contact information; telephone number; social 

10 security number; Internet protocol address or host 

11 name that identifies an individual, or any other in12 formation that would serve to identify an individual. 

13 (7) STATE.—The term ‘‘State’’ means each of 

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

15 commonwealth, territory, or possession of the United 

16 States. 

17 SEC. 12. CONSTRUCTION. 

18 This Act shall be liberally construed to effectuate its 

19 findings and purposes fully, except that the exemptions 

20 shall be construed narrowly. 

21 SEC. 13. RELATIONSHIP TO OTHER LAWS. 

22 Nothing in this Act shall preempt or supersede any 

23 Federal, State, constitutional, case or common law that 

24 provides the equivalent or greater protection for persons 


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1 engaging in activities in furtherance of the rights of peti2 tion or free speech. 

3 SEC. 14. SEVERABILITY. 

4 If any provision of this Act or the application of any 

5 provision of this Act to any person or circumstance is held 

6 invalid, the application of such provision to other persons 

7 or circumstances and the remainder of this Act shall not 

8 be affected thereby. 

9 SEC. 15. EFFECTIVE DATE. 

10 This Act shall become effective upon enactment. 

Æ 


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