II 118th CONGRESS 2d Session S. 5438 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. Short title This Act may be cited as the Free Speech Protection Act . 2. Measures to end strategic lawsuits against public participation (a) In general Part VI of title 28, United States Code, is amended by adding after chapter 181 the following new chapter: 182 Procedure to dismiss and deter strategic lawsuits 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. 4201. Definitions In this chapter: (1) Strategic lawsuit against public participation; SLAPP The term strategic lawsuit against public participation or SLAPP means the use of the court system to silence or intimidate a party who is engaged in the constitutional exercise of one or more of the acts described in section 4202(c)(2), by subjecting that party to meritless litigation. (2) Claim The term claim means any civil action, complaint, cause of action, counterclaim, or other court filing seeking damages, declaratory relief, or equitable relief, including any individual causes of action. (3) Matter of public concern The term matter of public concern means an issue that— (A) can be fairly considered as relating to any matter of political, social, health or safety, or other concern to the community; (B) is of legitimate news interest; or (C) is a subject of general interest and of value and concern to the public. (4) Government entity The term government entity means— (A) the Government of the United States; (B) a State or subdivision of a State, including a county or municipality; (C) a Federal or State government corporation, branch, department, or agency; (D) a public institution; or (E) a federally or State recognized Tribe. (5) State The term State means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States. 4202. Special motion to dismiss a strategic lawsuit against public participation (a) Special motion To dismiss (1) Notice of intent to file Not later than 5 days before the filing of a special motion to dismiss a claim alleged to be a strategic lawsuit against public participation under this chapter, the moving party shall provide written notice to the responding party of its intent to file such a special motion to dismiss with respect to a claim. The moving party may not file a special motion to dismiss until the day after the expiration of the 5-day period, before which the responding party may withdraw or amend the claim in accordance with applicable court rules. (2) Filing A special motion to dismiss pursuant to this chapter shall be filed not later than the date that is the later of— (A) 60 days after the date of service of the pleading that states the claim alleged to be a SLAPP; or (B) 60 days after the date of removal of the case to Federal court. (3) Good cause Upon motion by either party and for good cause, the court may extend the period described under paragraph (2). (b) Stay of proceedings (1) In general Except as provided under paragraph (2), upon the filing of a special motion to dismiss under this chapter, all other proceedings between the moving party and responding party that are related to the claim, including discovery proceedings and any pending hearing or motions, shall be stayed until notice of entry of an order disposing of the special motion to dismiss. (2) Stay involving another party On motion by the moving party, the court may stay a hearing or motion involving another party, or discovery by another party, if the hearing or motion would adjudicate, or the discovery would relate to, an issue material to the motion under this section. (3) Exceptions (A) Limited discovery Upon motion by either party, the court may allow limited discovery related to the motion if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under subsection (c) and the information is not reasonably available unless discovery is allowed. The court may not allow discovery of information about the confidential sources of a reporter or work product, or any other information that is privileged under State or Federal law. (B) Motion for remand Proceedings relating to a motion to remand filed pursuant to section 1447 may proceed pending consideration by the court of the special motion to dismiss. (c) Consideration of motion The court shall grant the special motion to dismiss and dismiss the claim with prejudice if— (1) the responding party fails to establish that an exception under section 4203 applies; (2) the moving party presents evidence establishing that the claim at issue is based on, or in response to, the party’s— (A) exercise of a constitutional right in a legislative, executive, judicial, administrative, or other governmental proceeding; (B) exercise of a constitutional right to communicate on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or (C) exercise of the constitutional right of freedom of speech or of the press, the right to assemble or petition, or the right of association, on a matter of public concern; and (3) (A) the responding party fails to present evidence establishing a prima facie case regarding each element of the claim; or (B) the moving party establishes that— (i) the responding party failed to state a claim upon which relief can be granted; or (ii) there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the claim. (d) No requirement for moving party To demonstrate intent The moving party does not need to demonstrate the responding party’s intent to silence or intimidate the moving party in order to prevail on the motion. (e) Expedited ruling The court shall rule on a special motion to dismiss not later than 90 days after the date on which the motion is filed, unless the court determines that docket conditions, any specified discovery, or other good cause requires a ruling at a later date. 4203. Exceptions (a) In general Except as provided under subsection (b), this chapter shall not apply to any claim that is brought— (1) against a person primarily engaged in the business of selling or leasing commercial goods or services if the claim arises out of the person’s sale, lease, or representation of commercial goods or services; (2) by a government official or entity acting in an official capacity or under color of law, or against a government official or entity sued in an official or individual capacity for acts or omissions conducted on behalf of a government entity or under color of law; (3) under the citizen suit provision of a Federal or state statute; (4) under the Securities and Exchange Act of 1934 ( 15 U.S.C. 78a et seq. ), the Securities Act of 1933 ( 15 U.S.C. 77a et seq. ), or a State securities law and based on filings or communications with government regulatory agencies; (5) for recovery for wrongful death, except for a claim arising solely out of a constitutional right of a moving party listed in section 4202(c)(2); (6) by an employee against that individual’s employer or former employer for an issue arising from the employment relationship; or (7) by a whistleblower under a Federal or State whistleblower statute, including any claim brought under the section 3729, 3730, 3731, 3732, or 3733 of title 31. (b) Limitations on exceptions This chapter shall apply to a claim asserted under paragraph (1), (2), (3), (4), or (5) of subsection (a) if the claim is brought against— (1) any publisher, editor, reporter, or other person who is or was connected with or employed by a radio station, television station, newspaper, magazine, internet-based publication, or other periodical publication, or by a press association or wire service, if the person against whom the claim was asserted was acting with respect to such connection or employment; or (2) any person or entity based on the person’s or entity’s creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, journalistic, or artistic work. 4204. Fees (a) Attorney’s fees and costs If the moving party prevails on the special motion to dismiss, there shall be a rebuttable presumption that the moving party is entitled to an award of reasonable attorneys’ fees and costs. Such a presumption may be rebutted by a showing that such an award would be unreasonable or that special circumstances exist that would make such an award unjust, as determined by the court. The moving party does not need to demonstrate the responding party’s intent to silence or intimidate the moving party or other speakers to be entitled to such an award. (b) Prevailing party For the purposes of subsection (a), the moving party is considered to have prevailed on the special motion to dismiss if the court grants the special motion to dismiss under section 4202(d) or the responding party voluntarily withdraws the claim after the motion is filed consistent with section 4202(a). (c) Bad faith filings If a court finds that a special motion to dismiss was filed in bad faith and solely intended to cause delay, there shall be a rebuttable presumption that the responding party is entitled to an award of reasonable attorneys’ fees and costs incurred in responding to the special motion to dismiss. Such a presumption may be rebutted by a showing that such an award would be unreasonable or that special circumstances exist that would make such an award unjust, as determined by the court. 4205. Preservation of rights (a) Savings clause “Except as provided for in this chapter, nothing in this chapter shall reduce or limit any substantive claim, remedy, or defense to a SLAPP under any other Federal law or under the laws of any State or locality. (b) Sanctions and award of expenses Nothing in this chapter shall preclude the parties from seeking sanctions or an award of expenses under rule 11 of the Federal Rules of Civil Procedure. . (b) Clerical amendment The table of chapters for title 28, United States Code, is amended by adding after chapter 181 the following: 182. Procedure to dismiss and deter strategic lawsuits against public participation 4201 . 3. Rule of construction This Act and the amendments made by this Act shall be broadly construed and applied to protect the exercise of rights under the U.S. Constitution. 4. Effective date; applicability This Act and the amendments made by this Act shall take effect on the date of enactment of this Act and shall apply to any application for dismissal of a SLAPP, as defined in section 4201 of title 28, United States Code, as added by section 2 of this Act, filed on or after the date of enactment of this Act.