Senator Kyl Proposes a Federal anti-SLAPP Statute

While we wait for the opening briefs in the Sherrod and Davis appeals, on August 2, Senator Jon Kyl (R-ARIZ), introduced the Free Press Act of 2012 which, if enacted, would create a federal anti-SLAPP statute.  As explained by the First Amendment Center, “[u]nder the measure, the media could file a motion to dismiss a lawsuit that ‘arises in whole or in part’ from reporting ‘on a matter of public concern or that relates to a public official or figure.’” 

Some commentators, including, most notably, the Electronic Frontier Foundation, have written that, while the bill is an encouraging positive step, its application only to a “representative of the news media” might mean that it does not apply to bloggers, citizen journalists or commentators on the Internet.  See similar commentary by the Public Participation Project here.

Interestingly, however, in introducing the legislation, Senator Kyl indicated that it had a much broader scope and would apply to bloggers.

Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.

And other commentators have reached the same conclusion, noting that the definition of “representative of the news media,” borrowed from 5 U.S.C. § 552(a)(4), is “quite broad” and includes “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”

It remains to be seen if, in this election year and a deeply divided Senate, the legislation stands any chance of being enacted.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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