To protect first amendment rights of petition and free speech

Summary of the Citizen Participation Act, H.R. 4364

The goal of H.R. 4364 is to protect the constitutional rights of petition and free speech by creating immunity from, and procedures to, dismiss, remedy and deter Strategic Lawsuits Against Public Participation (SLAPPs). The proposed legislation contains the following provisions:

A. IMMUNITY FOR PETITION ACTIVITY. The proposed Act creates qualified immunity from civil liability for petition activity by protecting all petition activity made without knowledge or reckless disregard of falsity. Petition activity includes any statement made before or submitted to a government body, or activity encouraging others to make or submit such statements.

B. PROTECTIONS FOR PETITION AND SPEECH ACTIVITY. The Citizen Participation Act protects both petition activity and speech or conduct in connection with an issue of public interest with a set of procedural mechanisms. An “issue of public interest” includes any information or opinion related to health or safety; environmental, economic or community well-being; the government; a public figure; or a good, product or service in the marketplace.

The proposed Act allows a defendant to bring a special motion to dismiss the lawsuit at an early stage in the proceedings. The defendant must show that the lawsuit against him arose from his protected speech or petitioning activity. The plaintiff must then demonstrate that her claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. If the plaintiff fails to meet this burden, the lawsuit is dismissed.

The hearing and the ruling on the motion are expedited, and discovery proceedings are stayed until the motion is resolved. A defendant who loses the motion to dismiss has the right to an immediate appeal, and a claim dismissed on the motion must be dismissed with prejudice.

C. FEDERAL REMOVAL JURISDICTION. Because about half of the states lack anti-SLAPP protections, the bill also provides for federal removal jurisdiction. A defendant who asserts as a defense the immunity provided for in the Act, or that the action arises from an act in furtherance of the right of petition or free speech, may remove the claim to federal district court. This provision does not alter existing state anti-SLAPP laws.

D. SPECIAL MOTION TO QUASH. Anonymous speech is protected. If an anonymous speaker's personally identifying information is sought through a subpoena or discovery order on the basis of petitioning or speech about a public issue, a party or the speaker may make a special motion to quash the discovery order or subpoena. If the plaintiff in the underlying case cannot show that the underlying case has merit, the subpoena must be quashed.

E. FEES AND COSTS. A party who prevails on a special motion to dismiss or quash may recover the costs of litigation, including reasonable attorney’s fees.

F. BANKRUPTCY NON-DISCHARGABILITY OF SLAPP AND SLAPPBACK AWARDS. To ensure that a SLAPP defendant receives the court-ordered relief to which they are entitled, this provision makes fees awarded under the statute non-dischargeable in bankruptcy. Some states allow a SLAPP defendant to recover damages incurred in defending against a SLAPP, and this provision also makes these damages non-dischargeable.

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G. EXEMPTIONS. To protect against abuse of the statute, the bill may not be used to dismiss any claim brought solely in the public interest or arising from advertising speech, as defined in the Act.