[Note. The proposed federal legislation was developed by a number of organizations who desire to enact federal legislative protections against SLAPPs. The introduction that follows was prepared by HALT, an organization of Americans for legal reform, which is part of the national effort. You may jump directly to the text of the proposed legislation.]

INTRODUCTION

SLAPP suits (Strategic Litigation Against Public Participation) are suits that chill, stifle and intimidate expressions by citizens attempting to participate in governmental activity and public policy. The typical SLAPP occurs when a citizen makes a statement intended to influence public policy and is sued for defamation, interference with contract or similar common-law tort. Such suits are expensive to defend, slow to resolve, and scare people from expressing views on public policy. As they are increasingly used by powerful groups to silence opponents, they undermine faith in the democratic process.

SLAPPs are an abuse of the courts and are often frivolous, using the court as an instrument in a political dispute. They shift the nature of the controversy from open public debate to narrow two-party litigation. Despite the result that more than three-quarters of such suits are ultimately lost, they can, if allowed to run their course, result in one side of a public policy issue being penalized for their participation in government.

The government has an interest in stopping SLAPPs because it needs input from citizens about policies, data, information and perspectives of the kind that free citizens can provide. But when the law supplies no protection from SLAPPs, citizens who want to give their views to their government are often fearful of doing so.

The purpose of anti-SLAPP legislation is to create a basis for immediate dismissal of suits which diminish public participation in policy decisions. Disputes over public policy should be decided in the forum in which they are raised -- the legislature, an administrative agency, a court or an election. Such public-policy debates should not be aborted by transforming them into traditional court-based litigation.

Two pillars of the SLAPP protection are:
• It is a compelling interest of the government to protect citizen input into governmental decisions;
• The forum in which a citizen raises a petition to government should be the forum in which disputes about the proposed policy are resolved.

The anti-SLAPP legislation carves out for protection an important area of public policy -- petitioning the government or the electorate. It leaves the general areas of First Amendment speech and association to their well-established protections.

The distinction between First Amendment rights and anti-SLAPP suit protections is important. A justification for anti-SLAPP legislation is that the forum chosen by the petitioner should be the forum where the dispute is decided. But non-petition speech and association lack an identifiable petition-forum where the dispute can be decided. If non-petition speech were to be immunized from common law suit, the alleged injury might not be heard in any forum.

Extending SLAPP protection to all speech and association could be viewed as diminishing common law defamation to the disappearing point. Such a sweeping change is not the aim of the proposed legislation.

The proposed anti-SLAPP legislation provides special protection only to those petition activities which contribute to the government's ability to make public policy, and which have a forum in which disagreements can be decided without resort to personal litigation attacks.

The legislation permits the victim of a SLAPP to move for immediate dismissal of the litigation. While the judge is deciding this motion, discovery is stayed. If the judge determines that the suit is an interference with the rights of a citizen to petition the government, dismissal follows and the debate left in the forum chosen by the citizen. The citizen may also claim punitive damages sufficient to deter such SLAPP suits.

Section 1. Short Title.

This Act may be cited as the "Citizen Participation in Government Act of 1995."

Section 2. Table of Contents.

The table of contents for this Act is as follows [Note to Web Reader: you may jump to individual sections.]

Section 1. Short Title
Section 2. Table of Contents
Section 3. Congressional Findings and Declaration of Purposes
Section 4. Immunity
Section 5. Applicability
Section 6. Required Procedures
Section 7. Definitions
Section 8. General Provisions

Section 3. Congressional Findings and Declaration of Purposes.

(a) FINDINGS.--The Congress finds and declares that --

(1) the framers of the American Constitution, recognizing citizen participation in the government as an inalienable right essential to the survival of democracy, secured its protection through the right to petition the government for redress of grievances in the First Amendment to the Constitution;

(2) the communications, information, opinions, reports, testimony, claims and arguments provided by citizens to their 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, regulation of commerce, the credibility and trust afforded government, and the continuation of America's republican form of government through representative democracy;

(3) civil lawsuits and counterclaims, often claiming millions of dollars, have been and are being filed against thousands of citizens, businesses, and organizations based on their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate;

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

(5) the number of SLAPPs has increased significantly over the past 30 years;

(6) SLAPPs are an abuse of the judicial process; they are used to censor, chill, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs, and controlling SLAPPs will make a major contribution to lawsuit reform;

(7) 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 affects government, commerce, and individual rights by significantly diminishing public participation in government, in public issues, and in voluntary service;

(8) while a number of federal and state courts have recognized and discouraged SLAPPs and some state legislatures have provided safeguards, protection of these important rights has not been uniform or comprehensive and a significant number of state laws and court procedures substantially discriminate against, impair, or defeat this federal right;

(9) while some citizen communications to government inevitably will be incorrect, unsound, self-interested, or not in good faith, it is essential in our democracy that the constitutional rights of citizens to participate fully in the process of government be uniformly, consistently and comprehensively protected and encouraged.

(1) to protect and encourage citizen participation in government to the maximum extent permitted by law;

(2) to create a more equitable balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to petition, speak out, associate, and otherwise participate in their governments;

(3) to support the operation of and assure the continuation of representative government in America, including the protection and regulation of commerce, by protecting public participation in government programs, public policy decisions, and other actions;

(4) to establish a balanced, uniform, comprehensive process for speedy adjudication of SLAPPs in both federal and state courts as a major contribution to lawsuit reform;

(5) to provide for attorney fees, costs, and damages for persons whose citizen participation rights have been violated by the filing of a SLAPP against them.

Acts in furtherance of the constitutional right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating in the processes of government, shall be immune from civil liability, regardless of intent or purpose, except where not aimed at procuring any governmental or electoral action, result, or outcome. This Act shall create substantive and procedural federal rights which shall be enforceable in federal and state courts.

Section 5. Applicability.

This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights as described in section 4.

Section 6. Required Procedures.

On the filing of any motion as described in Section 5 all federal and state courts shall, at a minimum, provide procedures and rights consistent with the following, to protect the federal right --

(a) The motion shall be treated as one for summary judgment:

(1) the trial court shall use a time period appropriate to preferred or expedited motions; and,

(2) the moving party shall have a right of expedited appeal from a trial court order denying such a motion or from a trial court failure to rule on such a motion in expedited fashion;

(c) The responding party shall have the burden of proof, of going forward with the evidence, and of persuasion on the motion;

(d) The court shall make its determination based upon the facts contained in the pleadings and affidavits filed;

(e) The court shall grant the motion and dismiss the judicial claim, unless the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability by section 4;

(f) Any government body to which the moving party's acts were directed or the Attorney General of the United States or of any state may intervene to defend or otherwise support the moving party in the SLAPP;

(g) The court shall award a moving party who is dismissed,without regard to any limits under state law:

(1) costs of litigation (including reasonable attorney and expert witness fees) incurred in connection with the motion; and,

(2) such additional sanctions upon the responding party, its attorneys, or law firms, as it determines will be sufficient to deter repetition of such conduct and comparable conduct by others similarly situated;

Section 7. Definitions.

As used in this Act --

(a) "Government" includes a branch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, or subdivision of a state or other public authority, including the electorate;

(b) "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

(c) "Person" includes any individual, corporation, association, organization, partnership, two or more persons having a joint or common interest, or other legal entity;

(d) "Judicial claim" or "claim" include any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing requesting relief;

(e) "Motion" includes any motion to dismiss, for summary judgment, for judgment on the pleadings to strike, demurrer, or any other judicial pleading filed to dispose of a judicial claim;

(f) "Moving party" means any person on whose behalf the motion described in section 5 is filed seeking dismissal to the judicial claim; and

(g) "Responding party" means any person against whom the motion described in section 5 is filed.

Section 8. General Provisions.

(a) RELATIONSHIP TO OTHER LAWS.--Nothing in this Act shall limit or preclude any rights the moving party may have under any other constitutional, statutory, case or common law, or rule provisions.

(b) RULE OF CONSTRUCTION.--This act shall be construed liberally to effectuate its purposes and intent fully.

(c) SEVERABILITY OF PROVISIONS.--If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the application of such provision to other persons or circumstances and the remainder of this Act shall not be affected thereby.

(d) PREEMPTION.--Nothing in this Act shall preempt or supersede any state law which provides the equivalent or greater protection for parties engaging in the act of petitioning their government.

(e) EFFECTIVE DATE.--This Act shall take effect immediately.

Note! To comment on the proposed legislation, you may send e-mail to HALT (haltfry@aol.com) or otherwise contact HALT at: