Citizen Participation Act of 2020

the framers of our Constitution, recognizing participation in government and freedom of speech as inalienable rights essential to the survival of democracy, secured their protection through the First Amendment to the United States Constitution;

the communications, information, opinions, reports, testimony, claims and arguments that individuals, organizations and businesses provide to the government are essential to wise government decisions and public policy, the public health, safety, and welfare, effective law enforcement, the efficient operation of government programs, the credibility and trust afforded government, and the continuation of America’s representative democracy;

civil lawsuits and counterclaims, often claiming millions of dollars in damages, have been and are being filed against thousands of individuals, organizations, and businesses based upon their valid exercise of the rights to petition or free speech, including seeking relief, influencing action, informing, communicating, and otherwise participating with government, the electorate, or in matters of public interest;

such lawsuits, called Strategic Lawsuits Against Public Participation or SLAPPs, are often ultimately dismissed as groundless or unconstitutional, but not before the defendants are put to great expense, harassment, and interruption of their productive activities;

it is in the public interest for individuals, organizations and businesses to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process;

the threat of financial liability, litigation costs, destruction of one’s business, loss of one’s home, and other personal losses from groundless lawsuits seriously impacts government, interstate commerce, and individual rights by significantly chilling public participation in government, public issues, and in voluntary service;

SLAPPs are an abuse of the judicial process that waste judicial resources and clog the already over-burdened court dockets;

while some courts and State legislatures have recognized and discouraged SLAPPs, protection against SLAPPs has not been uniform or comprehensive; and

some SLAPP victims are deprived of the relief to which they are entitled because the current bankruptcy law allows for the discharge of fees, costs and damages awarded against a party for maintaining a SLAPP.

Immunity— Any act of petitioning the government made without knowledge of falsity or reckless disregard of falsity shall be immune from civil liability.

Burden and standard of proof— A plaintiff must prove knowledge of falsity or reckless disregard of falsity by clear and convincing evidence.

In general— A party may file a special motion to dismiss any claim arising from an act or alleged act in furtherance of the constitutional right of petition or free speech within 45 days after service of the claim if the claim was filed in Federal court or, if the claim was removed to Federal court pursuant to section 6 of this Act, within 15 days after removal.

Burdens of the parties— A party filing a special motion to dismiss under this Act has the initial burden of making a prima facie showing that the claim at issue arises from an act in furtherance of the constitutional right of petition or free speech. If the moving party meets this burden, the burden shifts to the responding party to demonstrate that the claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.

Stay of discovery— Upon the filing of a special motion to dismiss, discovery proceedings in the action shall be stayed until notice of entry of an order disposing of the motion, except that the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

Expedited hearing— The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. The parties may submit the pleadings and affidavits stating the facts upon which the liability or defense is based. The court shall explain the reasons for its grant or denial of the motion in a statement for the record. If the special motion to dismiss is granted, dismissal shall be with prejudice.

Immediate appeal— The defendant shall have a right of immediate appeal from a district court order denying a special motion to dismiss in whole or in part.

In general— A civil action commenced in a State court against any person who asserts as a defense the immunity provided for in section 3 of this Act, or asserts that the action arises from an act in furtherance of the constitutional right of petition or free speech, may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.

Remand of remaining claims— A court exercising jurisdiction under this section shall remand any claims against which the special motion to dismiss has been denied, as well as any remaining claims against which a special motion to dismiss was not brought, to the State court from which it was removed.

Timing— A court exercising jurisdiction under this section shall remand an action if a special motion to dismiss is not filed within 15 days after removal.

In general— A person whose personally identifying information is sought in connection with an action pending in Federal court arising from an act in furtherance of the constitutional right of petition or free speech may make a special motion to quash the discovery order, request or subpoena.

Burdens of the parties— The person bringing a special motion to quash under this section must make a prima facie showing that the underlying claim arises from an act in furtherance of the constitutional right of petition or free speech. If this burden is met, the burden shifts to the plaintiff in the underlying action to demonstrate that the underlying claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. This standard shall apply only to a special motion to quash brought under this section.

Attorney’s fees— The court shall award a moving party who prevails on a special motion to dismiss or quash the costs of litigation, including a reasonable attorney’s fee.

Frivolous motions and removal— If the court finds that a special motion to dismiss, special motion to quash, or the removal of a claim under this Act is frivolous or is solely intended to cause unnecessary delay, the court may award a reasonable attorney’s fees and costs to the responding party.

Government entities— A government entity may not recover fees pursuant to this section.

Public enforcement— Sections 4 through 8 of this Act shall not be available in any action brought solely on behalf of the public or solely to enforce an important right affecting the public interest.

Commercial speech— This Act shall not apply to any claim for relief brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is a representation of fact made for the purpose of promoting, securing or completing sales or leases of, or commercial transactions in, the person’s goods or services, and the intended audience is an actual or potential buyer or customer.

“SLAPP-Back” suits— This Act shall not be available to dismiss any action or claim arising from a claim that has been dismissed pursuant to this Act or to a State anti-SLAPP law.

Act in furtherance of the right of free speech— The term “act in furtherance of the right of free speech” includes but is not limited to—

Act of petitioning the government— The term “act of petitioning the government” includes but is not limited to any written or oral statement—

Claim— The term “claim” includes any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.

Government entity— The term “government entity” includes the United States, a branch, department, agency, State, or subdivision of a State, or other public authority.

Issue of public interest— The term “issue of public interest” includes an issue related to health or safety; environmental, economic or community well-being; the government; a public figure; or a good, product or service in the market place. “Issue of public interest” shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s business interests rather than toward commenting on or sharing information about a matter of public significance.

Personally identifying information— The term “personally identifying information” means first and last name or last name only; home or other physical address including temporary shelter or housing and including a street name or ZIP Code; full date of birth; email address or other online contact information; telephone number; social security number; internet protocol address or host name that identifies an individual, or any other information that would serve to identify an individual.

State— The term “State” means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.