II 

112TH CONGRESS 

2D SESSION S. 3493 

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. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 2, 2012 

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

the Committee on the Judiciary 

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. 

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 Press Act of 

5 2012’’. 


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1 SEC. 2. SPECIAL MOTION TO DISMISS. 

2 Part VI of title 28, United States Code, is amended 

3 by adding at the end the following: 

4 ‘‘CHAPTER 182—SPECIAL MOTION TO 

5 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. 

6 ‘‘§ 4201. Special motion to dismiss 

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

8 media (as defined in section 552(a)(4) of title 5) may file 

9 a special motion to dismiss any claim asserted against the 

10 representative of the news media in a civil action if the 

11 claim arises in whole or in part from an oral or written 

12 statement or other expression that is on a matter of public 

13 concern or that relates to a public official or figure. 

14 ‘‘(b) TIME LIMIT.—Unless the court grants an exten15 sion, a special motion to dismiss under this section shall 

16 be filed— 

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

18 service of the claim, if the claim is filed in Federal 

19 court; or 


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1 ‘‘(2) not later than 30 days after the date of re2 moval, if the claim is removed to Federal court 

3 under section 4206. 

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

5 is filed under this section as to a claim, the claim may 

6 not be amended or supplemented until a final and 

7 unappealable order is entered denying the special motion 

8 to dismiss. 

9 ‘‘(d) BURDENS OF PROOF.— 

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

11 news media filing a special motion to dismiss under 

12 this section as to a claim shall have the burden of 

13 making a prima facie showing that the claim is a 

14 claim described in subsection (a). 

15 ‘‘(2) NONMOVING PARTY.—If the movant meets 

16 the burden described in paragraph (1) for a claim, 

17 the party asserting the claim shall bear the burden 

18 of proving that the claim is— 

19 ‘‘(A) legally sufficient; and 

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

21 based on admissible evidence, of facts sufficient 

22 to sustain a favorable judgment. 

23 ‘‘(3) FAILURE TO MEET BURDEN.—If the non24 moving party fails to meet the burden required for 


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1 a claim under paragraph (2), the claim shall be dis2 missed with prejudice. 

3 ‘‘§ 4202. Stay of discovery 

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

5 (b), upon the filing of a special motion to dismiss under 

6 section 4201, discovery proceedings in the action shall be 

7 stayed until a final and unappealable order is entered on 

8 the special motion to dismiss. 

9 ‘‘(b) LIMITATION AND EXCEPTION.— 

10 ‘‘(1) LIMITATION.—A stay issued under sub11 section (a) based on the filing of a special motion to 

12 dismiss that only seeks dismissal of a third-party 

13 claim or a cross claim asserted by a defendant shall 

14 only stay discovery that— 

15 ‘‘(A) is requested by the party asserting 

16 the third-party claim or cross claim; or 

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

18 or cross claim. 

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

20 cause shown, a court may order that specified dis21 covery be conducted. 

22 ‘‘§ 4203. Exceptions for governmental litigation and 

23 commercial speech 

24 ‘‘A special motion to dismiss under section 4201 may 

25 not be filed as to a claim that— 


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1 ‘‘(1) is brought by the Federal Government or 

2 the attorney general of a State; or 

3 ‘‘(2) arises out of a statement offering or pro4 moting the sale of the goods or services of the per5 son making the statement. 

6 ‘‘§ 4204. Interlocutory appeal 

7 ‘‘An aggrieved party may take an immediate inter8 locutory appeal from an order granting or denying in 

9 whole or in part a special motion to dismiss under section 

10 4201. 

11 ‘‘§ 4205. Special motion to quash 

12 ‘‘(a) IN GENERAL.—A person whose personally iden13 tifying information is sought in connection with a claim 

14 that arises in whole or in part from an oral or written 

15 statement or other expression that is on a matter of public 

16 concern or that relates to a public official or figure, or 

17 a person from whom such information is sought in connec18 tion with such a claim, may file a special motion to quash 

19 the request or order to produce the information. 

20 ‘‘(b) BURDENS OF PROOF.— 

21 ‘‘(1) MOVING PARTY.—A person filing a special 

22 motion to quash a request or order under this sec23 tion shall have the burden of making a prima facie 

24 showing that the request or order is a request or 

25 order described in subsection (a). 


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1 ‘‘(2) NONMOVING PARTY.—If the movant meets 

2 the burden described in paragraph (1), the party 

3 who made the request or sought the order shall bear 

4 the burden of showing that the claim described in 

5 subsection (a) is— 

6 ‘‘(A) legally sufficient; and 

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

8 based on admissible evidence, of facts sufficient 

9 to sustain a favorable judgment. 

10 ‘‘(3) FAILURE TO MEET BURDEN.—If the non11 moving party fails to meet the burden required for 

12 a claim under paragraph (2), the request or order to 

13 produce the personally identifying information shall 

14 be quashed. 

15 ‘‘§ 4206. Removal 

16 ‘‘(a) SPECIAL MOTION TO DISMISS.— 

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), a civil action in a State court that raises 

19 a claim that colorably appears to be a claim de20 scribed in section 4201(a) may be removed to the 

21 district court of the United States for the district 

22 and division embracing the place where the civil ac23 tion is pending by a party who may file and who 

24 seeks to file a special motion to dismiss under secVerDate Mar 15 2010 02:39 Aug 10, 2012 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3493.IS S3493

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1 tion 4201 that asserts a colorable defense based on 

2 the Constitution or laws of the United States. 

3 ‘‘(2) EXCEPTION.—Removal may not be re4 quested under paragraph (1) on the basis of a third5 party claim or a cross claim asserted by a defendant. 

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

7 under paragraph (1), and a final and unappealable 

8 order is entered denying the special motion to dis9 miss filed under section 4201, the court may remand 

10 the remaining claims to the State court from which 

11 the civil action was removed. 

12 ‘‘(b) SPECIAL MOTION TO QUASH.— 

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

14 court in which a request or order that colorably ap15 pears to be a request or order described in section 

16 4205(a) is sought, issued, or sought to be enforced 

17 may be removed to the district court of the United 

18 States for the district and division embracing the 

19 place where the civil action is pending by a person 

20 who may file and who seeks to file a special motion 

21 to quash under section 4205 that asserts a colorable 

22 defense based on the Constitution or laws of the 

23 United States. 

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

25 under paragraph (1) for a proceeding in which a reVerDate Mar 15 2010 02:39 Aug 10, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3493.IS S3493

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1 quest or order described in section 4205(a) is 

2 sought, issued, or sought to be enforced, and there 

3 is no basis for removal of the remainder of the civil 

4 action in connection with which the proceeding is 

5 brought, or no party has requested removal of the 

6 remainder of the civil action, only the proceeding in 

7 which the request or order described is section 

8 4205(a) is sought, issued, or sought to be enforced 

9 may be removed. 

10 ‘‘§ 4207. Fees, costs, and sanctions 

11 ‘‘(a) ATTORNEY’S FEES AND COSTS.—Except as pro12 vided in subsection (c), a court shall award a person who 

13 files and prevails on a special motion to dismiss under sec14 tion 4201 or a special motion to quash under section 4205 

15 litigation costs, expert witness fees, and reasonable attor16 ney’s fees. 

17 ‘‘(b) FRIVOLOUS MOTIONS OR PETITIONS.—Except 

18 as provided in subsection (c)(1), if a court finds that a 

19 special motion to dismiss under section 4201, a special 

20 motion to quash under section 4205, or a notice of re21 moval under section 4206 is frivolous or is solely intended 

22 to cause unnecessary delay, the court may award litigation 

23 costs, expert witness fees, and reasonable attorney’s fees 

24 to the party that responded to the motion or notice. 

25 ‘‘(c) EXCEPTIONS.— 


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1 ‘‘(1) GOVERNMENTAL ENTITIES.—The Federal 

2 Government and the government of a State, or polit3 ical subdivision thereof, may not recover litigation 

4 costs, expert witness fees, or attorney’s fees under 

5 this section. 

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

7 not award litigation costs, expert witness fees, or at8 torney’s fees under subsection (a) if the grant of the 

9 special motion to dismiss under section 4201 or the 

10 special motion to quash under section 4205 de11 pended on the resolution of a novel or unsettled legal 

12 question in favor of the movant.’’. 

13 SEC. 3. RELATIONSHIP TO OTHER LAWS. 

14 Nothing in this Act or the amendments made by this 

15 Act shall preempt or supersede any Federal or State statu16 tory, constitutional, case, or common law that provides the 

17 equivalent or greater protection for persons engaging in 

18 activities protected by the First Amendment to the Con19 stitution of the United States. 

20 SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS. 

21 (a) TABLE OF CHAPTERS.—The table of chapters for 

22 part VI of title 28, United States Code, is amended by 

23 adding at the end the following: 

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

24 (b) INTERLOCUTORY APPEALS.—Section 1292(a) of 

25 title 28, United States Code, is amended— 


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

2 the end and inserting ‘‘; and’’; and 

3 (2) by adding at the end the following: 

4 ‘‘(4) Interlocutory orders granting or denying in 

5 whole or in part special motions to dismiss under 

6 section 4201.’’. 

7 (c) NONDISCHARGABILITY OF FEES AND COSTS.— 

8 Section 523(a) of title 11, United States Code, is amend9 ed— 

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

11 end; 

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

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

14 (3) by inserting after paragraph (19) the fol15 lowing: 

16 ‘‘(20) for litigation costs, expert witness fees, or 

17 reasonable attorney’s fees awarded by a court under 

18 chapter 182 of title 28 or under comparable State 

19 laws.’’. 

20 SEC. 5. EFFECTIVE DATE; APPLICABILITY. 

21 (a) EFFECTIVE DATE.—Except as provided in sub22 section (b), this Act and the amendments made by this 

23 Act shall— 

24 (1) take effect on the date of enactment of this 

25 Act; and 


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

2 of enactment of this Act. 

3 (b) CLAIMS FILED BEFORE ENACTMENT.—For a 

4 claim that was filed before and is pending on the date of 

5 enactment of this Act— 

6 (1) this Act and the amendments made by this 

7 Act shall apply to the claim if the court with original 

8 jurisdiction of the claim has not entered a judgment 

9 on the merits as to the claim as of the date of enact10 ment of this Act; and 

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

12 periods under sections 4201 and 1446 of title 28, 

13 United States Code, as amended by this Act, shall 

14 begin on the date of enactment of this Act. 

Æ 


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