The PETITION Act

Summary of Proposed Federal Anti-SLAPP Legislation

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

A. PROTECTIONS FOR PETITION AND SPEECH ACTIVITY

The proposed federal anti-SLAPP legislation protects petition activity, and speech or conduct, in connection with a matter of public concern, with a set of procedural mechanisms.  A “matter of public concern” includes an issue of 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 federal legislation 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/her arose from his/her protected speech or petitioning activity. The plaintiff must then demonstrate that his/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.  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.

Discovery proceedings are stayed until the motion is resolved.  However, upon the filing of a motion by the plaintiff where good cause is shown, a court may allow for limited discovery.

B. 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 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.

C. SPECIAL MOTION TO QUASH

An anonymous speaker whose personally identifying information is sought in a subpoena or discovery order because he/she has petitioned the government or spoken out on a public issue, may make a special motion to quash that discovery order or subpoena. In addition, the individual, or entity, from which such information is sought may also file a motion to quash.  If the plaintiff in the underlying case cannot show that the underlying case has merit, the subpoena must be quashed.

D. FEES AND COSTS

A party who prevails on a special motion to dismiss or quash may recover the costs of litigation, including reasonable attorneys fees.

E. BANKRUPTCY NON-DISCHARGABILITY OF SLAPP AND SLAPPBACK AWARDS

To ensure that a SLAPP defendant receives the court-ordered relief to which he/she is 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.  This provision also makes these damages non-dischargeable.

F. EXEMPTIONS
To protect against abuse of the statute, the bill may not be used to dismiss any claim brought by the Federal Government.  In addition, any government entity may not recover costs and fees under the proposed law.

Please, help us fight for anti-SLAPP legislation.  For more information, please contact Evan Mascagni, Legislative Assistant, at emascagni@anti-slapp.org or (202) 664-3796.