[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]










              EXAMINING H.R. 2304, THE ``SPEAK FREE ACT''

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 2304

                               __________

                             JUNE 22, 2016

                               __________

                           Serial No. 114-82

                               __________

         Printed for the use of the Committee on the Judiciary


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      Available via the World Wide Web: http://judiciary.house.gov
      
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                  RON DeSANTIS, Florida, Vice-Chairman

STEVE KING, Iowa                     STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
JIM JORDAN, Ohio                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel
                    James J. Park, Minority Counsel
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                            C O N T E N T S

                              ----------                              

                             JUNE 22, 2016

                                                                   Page

                                THE BILL

H.R. 2304, the ``SPEAK FREE Act of 2015''........................     3

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary    17
The Honorable Blake Farenthold, a Representative in Congress from 
  the State of Texas, and Member, Committee on the Judiciary.....    17

                               WITNESSES

Aaron Schur, Senior Director of Litigation, Yelp Inc.
  Oral Testimony.................................................    33
  Prepared Statement.............................................    35
Bruce D. Brown, Executive Director, The Reporters Committee for 
  Freedom of the Press
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43
Alexander A. Reinert, Professor of Law, Benjamin N. Cardozo 
  School of Law
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49
Laura Lee Prather, Partner, Haynes and Boone, LLP
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Subcommittee on the Constitution and Civil Justice.............    19
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    26

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy 
  LLP............................................................    88
Prepared Statement of the Motion Picture Association of America, 
  Inc............................................................    99
Response to Questions for the Record from Aaron Schur, Senior 
  Director of Litigation, Yelp Inc...............................   104
Response to Questions for the Record from Bruce D. Brown, 
  Executive Director, The Reporters Committee for Freedom of the 
  Press..........................................................   109
Response to Questions for the Record from Alexander A. Reinert, 
  Professor of Law, Benjamin N. Cardozo School of Law............   116
                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Material submitted by the Honorable Trent Franks, a Representative in 
    Congress from the State of Arizona, and Chairman, Subcommittee on 
    the Constitution and Civil Justice. This material is available at 
    the Subcommittee and can also be accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105106

Material submitted by the Honorable Steve Cohen, a Representative in 
    Congress from the State of Tennessee, and Ranking Member, 
    Subcommittee on the Constitution and Civil Justice. This material 
    is available at the Subcommittee and can also be accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105106

Response to Question for the Record from Laura Lee Prather, Partner, 
    Haynes and Boone, LLP. This material is available at the 
    Subcommittee and can also be accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105106
 
              EXAMINING H.R. 2304, THE ``SPEAK FREE ACT''

                              ----------                              


                        WEDNESDAY, JUNE 22, 2016

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 1 p.m., in Room 
210, Cannon House Office Building, the Honorable Trent Franks 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, DeSantis, Goodlatte, 
Gohmert, and Farenthold.
    Staff Present: (Majority) John Coleman, Counsel; Tricia 
White, Clerk; (Minority) James J. Park, Chief Counsel; Matthew 
Morgan, Professional Staff Member; and Veronica Eligan, 
Professional Staff Member.
    Mr. Franks. The Subcommittee on the Constitution and Civil 
Justice will come to order, and without objection, the Chair is 
authorized to declare recesses of the Committee at any time.
    So good afternoon to all of you. The Subcommittee today 
will examine H.R. 2304, the ``SPEAK FREE Act of 2015,'' a 
bipartisan bill designed to protect Americans from meritless 
lawsuits that target their right to free speech, and their 
right to petition their government.
    The First Amendment states that, ``Congress shall make no 
law respecting an establishment of a religion, or prohibiting 
the free exercise thereof, or abridging the freedom of speech, 
or of the press, or of the right of the people to peaceably 
assemble, and to petition the government for redress of 
grievances.''
    Those sacred rights, endowed by our Creator, and recognized 
by our Founding Fathers, place clear limitations on our Federal 
Government, and guarantee freedom of religion, speech, 
peaceable assembly, and the right of Americans to participate 
in their own government.
    History makes clear that when these rights are robustly 
defended, Americans are afforded the opportunity to pursue 
truth, and scientific advancement, to create a culture of 
innovation within our Nation, and to hold American government 
accountable. Without such protections, all other rights are at 
grave risk.
    George Washington recognized this risk when he proclaimed 
to the officers of the Army in 1783 that, ``If men are to be 
precluded from offering their sentiments on a matter which may 
involve the most serious and alarming consequences that can 
invite the consideration of mankind, reason is of no use to us. 
The freedom of speech may be taken away, and dumb and silent, 
we may be led like sheep to the slaughter.''
    Americans today still believe that free speech is 
foundational to freedom itself. According to a 2015 poll 
conducted by the Pew Research Center, 95 percent of Americans 
believe that people should be able to make statements that 
publicly criticize government's policies. A majority of 
Americans, roughly 7 in 10, also considered it very important 
for people to be able to use the Internet without government 
censorship on matters of free speech.
    Despite the fundamental nature of these freedoms, and their 
importance in American life, Americans' ability to exercise 
their First Amendment rights has been threatened by lawsuits 
called strategic lawsuits against public participation, or 
SLAPPs.
    These lawsuits, often brought by private parties, are filed 
against persons in retaliation for speaking out on a public 
issue or controversy. These kinds of lawsuits are solely 
intended to censor and intimidate critics by burdening them 
with expensive litigation in our court system.
    In response, 28 States, the District of Columbia, and one 
U.S. territory have enacted anti-SLAPP laws, with varying 
degrees of protection. One key feature found in most of these 
laws, however, is a special motion to dismiss a claim if it is 
based on an action related to protected speech, or the right to 
petition.
    For example, California, which enacted its anti-SLAPP law 
in 1992, provides a special motion to strike a complaint that 
is filed against a person based on ``an act of furtherance of a 
person's right of petition or free speech under the United 
States or California Constitution, in connection with a public 
issue.''
    With decades of precedent at the State level, this hearing 
is intended to examine what similar protections are needed at 
the Federal level. Mr. Farenthold, of Texas, who is a Member of 
the House Judiciary Committee, introduced H.R. 2304, the 
``SPEAK FREE Act of 2015,'' on June 1, 2015.
    This legislation, which currently enjoys broad bipartisan 
support, addresses SLAPPs by amending lawsuit rules to allow a 
person against whom a lawsuit is asserted to file a special 
motion to dismiss claims that ``arise from an oral or written 
statement, or other expression, or conduct in furtherance of 
such expression, by the defendant in connection with an 
official proceeding, or about a matter of public concern.''
    Ladies and gentlemen, free speech is a vital component of 
government accountability, public enlightenment, and the 
collective pursuit of truth itself. My hope is that today's 
hearing will shed light on the kinds of SLAPPs filed, as well 
as how this bill would address the problem.
    And I would like to thank our witnesses for being here, and 
I look forward to their testimony. And I would now yield to the 
distinguished gentleman from Virginia, the Chairman of the full 
Committee, Mr. Goodlatte.
    [The bill, H.R. 2304, follows:]
    
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    Mr. Goodlatte. Well, thank you very much, Mr. Chairman. I 
have a brief opening statement, then I would like to yield to 
the gentleman from Texas, Mr. Farenthold, for an opening 
statement on his part. He is a Member of the full Judiciary 
Committee, but not the Subcommittee, and he has been integrally 
involved in this issue.
    It is clear that our Founders believed that the free 
expression of ideas are integral to the wellbeing of our 
Nation. John Adams, in his writing on the importance of the 
press, for example, states: ``Care has been taken that the art 
of printing should be encouraged, and that it should be easy 
and cheap and safe for any person to communicate his thoughts 
to the public.
    ``And you, Messieurs printers, whatever the tyrants of the 
earth may say of your paper, have done important service to 
your country by your readiness and freedom in publishing the 
speculations of the curious.
    ``The stale, impudent insinuations of slander and sedition 
are so much the more to your honor, for the jaws of power are 
always opened to devour, and her arm is always stretched out, 
if possible, to destroy the freedom of thinking, speaking, and 
writing.''
    In the digital age, we continue to witness our world 
impacted by what one Federal district court judge has called 
``the most participatory marketplace of mass speech ever 
seen.'' Indeed, the Internet provides a nearly unlimited 
lowcost forum for all kinds of constitutionally-protected 
communication.
    But within the context of lawsuits referred to as strategic 
lawsuits against public participation, or SLAPPs, the cost of 
Internet expression protected by the First Amendment is on the 
rise. Today's hearing, I hope, will examine the most common 
kinds of SLAPPs heard in Federal court, as well as their impact 
on the right to free expression, and the right to petition the 
government.
    I look forward to today's discussion of the ``SPEAK FREE 
Act of 2015,'' and I would like to thank all the witnesses for 
their testimony. And it is now my pleasure to yield to the 
gentleman from Texas, Mr. Farenthold.
    Mr. Farenthold. Thank you, Chairman Goodlatte, and I will 
be brief as well. I think you hit on the most important part 
now. Pretty much everybody with a computer who can make it to a 
Starbucks is a publisher now, and we have the greatest 
marketplace of ideas in the world on the Internet.
    We have got a sharing economy, and an economy based on 
people making decisions about what to purchase online, where to 
visit, where to go to dinner, where to go to lunch, all driven 
by reviews written by folks just like you and me. And we have 
got a group of folks out there who are abusing the legal system 
by saying, ``Look, if they post something bad about us, let's 
sue them, and cost them tens of thousands of dollars to get 
that suit down.''
    It is no good having a site with reviews on it if all the 
reviews are positive, and the people posting negative reviews 
are silenced.
    What this bill does, what the SPEAK FREE Act does, is make 
it easier for those who are victimized by abusive lawsuits to 
silence their voices to end this early on in the litigation 
proceeding, before they rack up thousands or tens of thousands 
of dollars in legal fees.
    I think this is an important piece of legislation to 
protect the First Amendment rights, and carry forth the vision 
of our Founding Fathers that everybody have a voice, and 
everybody be heard with their truthful, honest, good-faith 
reviews. And again, thank you for yielding, and I look forward 
to hearing the testimony. I yield back.
    Mr. Franks. And I thank the gentleman. Without objection, 
other Members' opening statements will be made part of the 
record.
    [The prepared statement of Mr. Cohen follows:]
    
    
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   [The prepared statement of Mr. Conyers follows:]


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                               __________
                               
                               
                               
                               
    Mr. Franks. Now before I introduce the witnesses, I would 
like to submit several items into the record.
    The first submission includes a letter, a statement, and an 
L.A. Times editorial from the Public Participation Project in 
support of H.R. 2304; a second is a letter from law professors 
in support of the bill.
    Third is a joint letter in support of the bill from several 
Internet-based companies and related businesses.
    Fourth is the written testimony of George Freeman, 
executive director of the Media Law Research Cente.
    Fifth is a statement of David Diesenfeld, who is an 
attorney in California, in support of the bill.
    Sixth is a written statement from Tom O'Brian, Deputy 
General Counsel of Glassdoor Incorporated, in support of the 
bill.
    Seventh is a letter in support of the bill from the 
Internet Association.
    Eighth is a statement from Tracy Rosenberg, executive 
director of the Media Alliance, in support of the bill.
    The ninth and last is a statement from Daniel O'Connor, 
vice president of Public Policy at the Computer and 
Communications Association's support of the bill.
    And without objections, these statements will be entered 
into the record.*
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    *Note: The submitted material is not printed in this hearing record 
but is on file with the Subcommittee, and can also be accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105106
    So now let me introduce our witnesses. Out first witness is 
Aaron Schur. Mr. Schur is the senior director of litigation at 
Yelp Incorporated.
    Our second witness is Bruce D. Brown. Mr. Brown is the 
executive director of the Reporters Committee for Freedom of 
the Press.
    Our third witness is Alexander Reinert. Mr. Reinert is a 
professor of law at the Benjamin N. Cardozo School of Law in 
New York City.
    Our fourth and final witness is Laura Prather. Ms. Prather 
is a partner in the litigation practice group in the Austin 
office of Haynes and Boone, LLP.
    Each of the witnesses' written statements will be entered 
into the record in its entirety, and I would ask that each 
witness summarize his or her testimony in 5 minutes or less; 
and to help you stay within that time, there is a timing light 
in front of you. The light will switch from green to yellow, 
indicating that you have 1 minute to conclude your testimony. 
When the light turns red, it indicates that the witness' 5 
minutes have expired.
    So before I recognize the witness, it is the tradition of 
the Subcommittee that they be sworn, so if you would please all 
stand to be sworn.
    Do you solemnly swear that the testimony that you are about 
to give will be the truth, the whole truth, and nothing but the 
truth, so help you God? You may be seated. Let the record 
reflect that the witnesses answered in the affirmative.
    And I will now recognize our first witness, Mr. Schur. And, 
Mr. Schur, if you would make sure you turn that microphone on 
before speaking, sir.

 TESTIMONY OF AARON SCHUR, SENIOR DIRECTOR OF LITIGATION, YELP 
                              INC.

    Mr. Schur. Thank you very much, and good afternoon, 
Chairman Franks, and Members of the Subcommittee. Thank you for 
the opportunity to appear before you to discuss the ``SPEAK 
FREE Act of 2015.'' My name is Aaron Schur, and I am the senior 
director for litigation at Yelp, an online platform dedicated 
to connecting people with great local places. In this role, I 
am responsible for Yelp's litigation defense, which in many 
cases involves Yelp being sued solely for its role in allowing 
consumers to speak out about local businesses online, including 
cases where users themselves are named as our codefendants.
    I am also responsible for making sure Yelp appropriately 
evaluates and makes proper objections to subpoenas we receive 
each month from plaintiffs seeking Yelp's users' personal 
information in order to press legal claims, often without 
substance. Additionally, I help our user support team respond 
to users who have been sued, and aid them in finding counsel to 
take up their cases. This is particularly difficult, and 
sometimes impossible, when a defendant has limited or even 
average means.
    People frequently share their opinions and experiences, 
including about local businesses, with their friends and 
family. For an offline example, imagine the following scenario: 
a new restaurant opens up in your neighborhood, and you are 
first in line to try it. After dinner, you leave the restaurant 
happy and full. Your food was great, the staff was responsive, 
and the atmosphere was lively.
    A week later, when your friends ask you where you should go 
to dinner, you tell them about your experience at this 
restaurant, and you recommend that they should go, too. Online, 
this type of feedback is amplified. Your review of a restaurant 
or any number of services or products can now be read by 
hundreds, or even thousands or millions of others.
    Just because users have access to a larger audience online, 
which sites like Yelp enable, it does not mean they lose their 
right to free speech. Yet some businesses use strategic 
lawsuits against public participation, the meritless lawsuits 
that we call SLAPPs, to silence their critics, diminishing 
their ability to exercise their First Amendment rights.
    The SPEAK FREE Act seeks to prevent this, ensuring that 
honest speakers have a way to quickly and economically end 
meritless lawsuits targeting them for what they have said, 
regardless of where they live, or whether the claims at issue 
are considered under Federal or State law.
    More than 100 million reviews have been posted to Yelp, and 
with people writing and reading reviews at an increasing rate, 
about half of these were written over the last 2 years. On 
Yelp, businesses also have the opportunity to publicly or 
directly respond to their customers, analyze consumer feedback, 
and share their own experiences and stories.
    The interaction between business and consumer is a 
laboratory of speech in response to speech, exactly what the 
First Amendment is supposed to protect. But in recent years, 
Yelp has observed an increase in the number of businesses using 
SLAPPs to silence their critics. We also regularly hear from 
users Nationwide who have been targeted for their honest 
opinions about industries across the spectrum, including pet 
sitters, flooring companies, and dentists.
    Here is an example of a threat a user from New York 
reported to us less than a week ago: ``I wrote a review on a 
dentist's page. He sued me for that review for $100,000. 
Although what I wrote was true, I agreed to take that review 
out because I cannot afford the lawsuit fee. The dentist said 
he would stop the lawsuit if I removed the review.''
    While statements of honest opinions and truthful 
experiences are not bases for liability in this country, 
unfortunately we have seen that even the simple threat of a 
lawsuit is a highly effective tool to get users to remove their 
reviews from consumer advocacy sites like Yelp. The specter of 
lopsided litigation against an opponent with better financial 
resources is simply more than the average person is willing to 
take on, especially as winning provides no mechanism to recoup 
legal expenses.
    It is simply easier for the average person to take down his 
or her review, a fact some businesses and their lawyers know 
full well. These businesses face very little risk in bringing 
meritless lawsuits with solely the goal of removing information 
from public view.
    Such actions have a chilling effect on the targeted 
consumer, who is less likely to share his or her experiences in 
the future, and may also ward off other consumers who think 
that the potential cost of speaking their mind is too great. By 
discouraging public discourse, these businesses artificially 
inflate their reputation, leading to a skewed and unbalanced 
marketplace.
    Those people able and willing to defend their cases must 
still bear the burden of substantial legal fees before their 
words are vindicated in court. And there is seldom a mechanism 
to recover those fees, leaving them doubly harmed, first by the 
original poor service received from the business, and second, 
by the financial drain of a lawsuit.
    Thus the fee-shifting component of the SPEAK FREE Act is of 
critical importance, as it deters meritless cases in the first 
instance, incentivizes attorneys to take cases on behalf of 
those who could not otherwise afford a defense, and enables 
those who have the means to defend themselves, an opportunity 
to be made whole when they prevail in court.
    When a business uses a SLAPP to threaten or intimidate a 
consumer, it discourages public discourse and harms the online 
information ecosystem. The benefit of transparency, which is 
what online review platforms provide, is having a more perfect 
feedback loop. Consumers share their experiences with 
businesses, and businesses engage with their consumers in 
efforts to understand what they are doing right, or should 
consider improving.
    In conclusion, Mr. Chairman, Yelp is dedicated to 
protecting free speech rights online. We strongly support the 
SPEAK FREE Act, because it strengthens those protections, and 
look forward to working with you and other Members of this 
Committee as this legislation moves forward. I welcome your 
questions on this important topic.
    [The prepared statement of Mr. Schur follows:]
    
    
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                                __________
                                
                                
    Mr. Franks. Well, thank you, Mr. Schur. And I now recognize 
our second witness, Mr. Brown. And sir, you would also turn on 
that microphone.

TESTIMONY OF BRUCE D. BROWN, EXECUTIVE DIRECTOR, THE REPORTERS 
               COMMITTEE FOR FREEDOM OF THE PRESS

    Mr. Brown. Thank you, Mr. Chairman, and Members of this 
Committee. I am Bruce Brown, executive director of the 
Reporters Committee for Freedom of the Press. The Reporters 
Committee has been, since 1970, defending the First Amendment 
rights of journalists and news organizations. We typically get 
involved in SLAPP cases when we do pro bono friend of court or 
amicus briefs in different cases around the country where SLAPP 
statutes are at issue, and I have detailed in my written 
statement some of those cases in recent years.
    I was last before the Judiciary Committee in 2009, 
testifying in support of legislation to counter the threat from 
libel tourism that became known as the SPEECH Act. And I would 
suggest that the SPEECH Act is a good model for what Congress 
can do in the anti-SLAPP area.
    In the libel tourism area, there were concerns that libel 
litigation in foreign courts was being used strategically to 
deter the exercise of First Amendment rights. Congress then 
initiated and enacted a series of reforms to make libel tourism 
less attractive to plaintiffs who are taking advantage of an 
end-run around the First Amendment and due process. It provides 
defendants with a mechanism to seek to declare those judgments 
unenforceable in the United States. It provides for attorneys' 
fees to a defendant who is successful in doing so. And it 
contains a removal provision for enforcement actions brought in 
State court.
    The point was not that every foreign lawsuit arising out of 
SPEECH Activity is inherently meritless, and must be stopped. 
Rather, the SPEECH Act contains provisions to allow the 
plaintiff who has a legitimate case to prevail. And the law did 
not, in its final form, authorize counter-suits, as some had 
initially suggested.
    Rather, by establishing some modest new rights, Congress 
tilted the scales slightly more in the direction of protecting 
speech. And generally speaking, with this new deterrence in 
place, we are hearing a lot less about libel tourism today.
    Congress should take similar action through H.R. 2304, an 
anti-SLAPP legislation, in order to make plaintiffs think twice 
before filing a meritless suit attacking speech on a matter of 
public concern. By creating new substantive rights to protect 
expression, Congress would be doing with domestic cases what it 
did with foreign cases in the SPEECH Act.
    As I noted in my written submission, the availability of 
anti-SLAPP remedies in Federal court diversity cases, along 
with interlocutory review, are two key provisions that would 
strengthen the ability of all speakers, from the kinds of 
publishers and journalists we might work with at the Reporters 
Committee, to all Internet bloggers, community activists, and 
other speakers, to fend off meritless cases while at the same 
time ensuring that cases with merit are not unreasonably 
blocked from moving forward.
    Before coming to the Reporters Committee, I defended a city 
paper reporter sued by Washington Redskins owner Dan Snyder for 
libel. Along with counsel representing the newspaper, we 
believe the newly-enacted, the then-newly-enacted D.C. anti-
SLAPP bill, and our motion under the new law, led to Mr. 
Snyder's rather abrupt, excuse me, decision to withdraw his 
suit before his allegations could be tested in court and 
subject to the SLAPP back. The deterrent effect of these laws 
can be very significant, even to Mr. Snyder.
    Thank you again for the opportunity to testify, and I look 
forward to answering your questions here, or by supplementing 
the record after the hearing. Thank you.
    [The prepared statement of Mr. Brown follows:]
    
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                               __________
                               
                               
                               
    Mr. Franks. Thank you, sir. And I would now recognize our 
third witness, Mr. Reinert. And, sir, make sure that microphone 
is on.

 TESTIMONY OF ALEXANDER A. REINERT, PROFESSOR OF LAW, BENJAMIN 
                    N. CARDOZO SCHOOL OF LAW

    Mr. Reinert. It is. Thank you, Chairman Franks, Members of 
the Subcommittee. Good afternoon. I am Alex Reinert; I am a law 
professor at the Benjamin N. Cardozo School of Law. Thank you 
for inviting me to testify here today regarding H.R. 2304, the 
``SPEAK FREE Act of 2015.''
    Mr. Chairman, I like Yelp; I use it. I am sure James 
Madison would have liked it, too. I cannot imagine he would 
have liked it so much that he would have been willing to throw 
overboard Article III, the Seventh Amendment, and State 
sovereignty on the basis of a potential problem that has been 
supported only by anecdotes, and neither should this 
Subcommittee. And respectfully, the Constitution does not 
permit you to do so.
    So I want to start with the constitutional problems with 
this Act. First, the legislation runs afoul of the Constitution 
on jurisdictional grounds. Section 4206(a) authorizes removal 
from State to Federal court of purely State law claims in the 
absence of diversity of citizenship between the parties.
    There is no beating around the bush with respect to this 
provision. Congress cannot expand district court jurisdiction 
beyond the bounds of Article III, section 2; and Section 
4206(a) does just that.
    Removal of Federal question or diversity claims would be 
permissible, but that is already covered by 28 USC, Section 
1441. So to the extent that 4206(a) expands removal power to 
State law claims between non-diverse parties, it is 
unconstitutional, flatly.
    Section 4206(b) is just as problematic, if not more, 
because it appears to give non-parties the power to remove a 
case from State court to Federal court if that non-party's 
personal identifying information is sought by one of the 
parties.
    Aside from the intrusion on litigant autonomy, let's recall 
that if I am a defendant, and I want to remove a case from 
State court to Federal court, I cannot do it by myself, I need 
the other defendants to agree. That is because we care about 
litigant autonomy.
    So first of all, aside from the intrusion on litigant 
autonomy occasioned by a non-party removing the case, there is 
simply no basis for Federal jurisdiction extending to a non-
party's objection to particular discovery being sought in State 
court.
    The constitutional difficulties are not just 
jurisdictional, they are substantive as well. The special 
motion to dismiss, in Section 4202(a), contemplates dismissal 
with prejudice, pre-discovery, if the plaintiff cannot meet the 
burden of showing ``that the claim is likely to succeed on the 
merits.''
    I am aware of no other instance in which a plaintiff has 
been asked to demonstrate a likelihood of success on the merits 
in order to survive a motion to dismiss. That is because it is 
unconstitutional. The standard at summary judgment after 
discovery, the well-worn standard on summary judgment after 
discovery, is that a plaintiff need only show that a reasonable 
jury could find for her. Not that a reasonable jury is more 
likely than not to find for her.
    And so the reason that the proposed standard has never been 
used in Federal court to filter a claim at the pre-discovery 
stage is because it is inconsistent with the Seventh Amendment, 
as the District of Minnesota has said recently, and as State 
courts have agreed with respect to State anti-SLAPP laws with 
respect to their own State protections of the right to jury 
trial.
    There also are several difficult constitutional questions 
about whether Congress has the authority to accomplish the 
substantial displacement of State law and authority that would 
accompany H.R. 2304. I have covered these in detail in my 
prepared written remarks, and I will not linger too much on 
them.
    But I will say, in Mr. Brown's written statement, he has 
testified that he supports H.R. 2304 because he thinks that the 
substantive laws of the States that have anti-SLAPP laws should 
be accorded respect in Federal court. That is the opposite of 
what H.R. 2304 does. It does not accord respect to any State 
law. It displaces all State law regarding SLAPPs.
    So let us assume that the constitutional objections can be 
overcome somehow, which I think is doubtful, but possible. 
Still, one must ask whether this displacement of State law 
inherent in H.R. 2304 is appropriate or necessary from a policy 
perspective.
    And I will say, the stated rationale of its proponents is 
that this is merely taking anti-SLAPP laws and putting them at 
the Federal level. This is not a traditional State anti-SLAPP 
law; it covers grounds that are far beyond the original 
definition of a SLAPP suit; and the proponents base their 
support for the legislation on mere anecdotes.
    So with respect, a statute that unconstitutionally expands 
the jurisdiction of the Federal courts, significantly burdens 
and imperils important civil rights and allied litigation, 
imposes new and unprecedented procedures in Federal court, and 
displaces State sovereignty, should not advance based on 
anecdotes alone.
    Once again, I thank you for the opportunity to testify here 
today, and I look forward to your questions.
    [The prepared statement of Mr. Reinert follows:]
    
    
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    Mr. Franks. Thank you, sir. And I will now recognize our 
fourth and final witness, Ms. Prather. And, Ms. Prather, if you 
would turn your microphone on.

           TESTIMONY OF LAURA LEE PRATHER, PARTNER, 
                     HAYNES AND BOONE, LLP

    Ms. Prather. Mr. Chairman, Members of the Subcommittee, my 
name is Laura Prather. I am a partner with the law firm of 
Haynes and Boone in Austin, Texas, and a board member of the 
Public Participation Project, a nonprofit organization devoted 
to educating the public about SLAPP suits, and advocating for 
the passage of anti-SLAPP laws.
    I am testifying here on behalf of the Public Participation 
Project today, and I thank you for the opportunity to testify 
in support of H.R. 2304, the ``SPEAK FREE Act of 2015.'' I have 
been practicing law for 25 years, and the vast majority of my 
career has been devoted to defending First Amendment rights at 
the courthouse and at the legislature.
    In recent years, I have spent a significant portion of my 
time defending SLAPP victims. Seeing the frequency with which 
SLAPP suits were filed, I also took part in the passage of the 
Texas Citizens Participation Act, their version of an anti-
SLAPP statute.
    This month marks the fifth anniversary since that passage. 
The Texas experience demonstrates, and consistent with 
congressional experience here, that anti-SLAPP laws are good 
public policy. They help one who may not have means to fight 
meritless lawsuits have a system in place to do so. They 
promote judicial economy by getting rid of meritless claims 
that currently clog up the legal system, and they promote free 
speech rights, civic engagement and public discourse.
    First Amendment rights should not depend on where one 
resides, or the type of claim that is filed against them. There 
are three primary reasons for the need for passage of a Federal 
anti-SLAPP law.
    The first is, the patchwork for State protection that 
currently exist invites forum shopping.
    The second is the fact that there is a circuit split right 
now on whether Federal courts will apply State anti-SLAPP laws 
in diversity cases; and the third is the fact that current 
State anti-SLAPP laws simply do not apply to meritless Federal 
claims. The passage of the Federal anti-SLAPP law would provide 
consistency and predictability in the protection of First 
Amendment rights.
    Let's start with the patchwork. Members of this Committee 
are from a number of different states. Some states have narrow 
anti-SLAPP laws, some have none, some have broad anti-SLAPP 
laws. What happens in those scenarios? It encourages people to 
forum shop, like the Dan Snyder example that Mr. Brown pointed 
out. He filed a lawsuit in New York, against a hedge fund that 
owned the Washington City Paper, after admitting that he had 
never even read the article at issue in the lawsuit. That 
lawsuit was filed in New York to avoid D.C.'s anti-SLAPP law.
    Ultimately, he had to refile in D.C., and then he dismissed 
without there ever being a decision on the application of the 
D.C. law. There are countless examples of cases like that where 
people specifically choose a State in which there is no anti-
SLAPP law, or a weak anti-SLAPP law, in which to file their 
claims.
    Second, there is now a circuit split with regard to whether 
State anti-SLAPP laws apply in Federal diversity cases. Up 
until recently, every circuit that had decided the issue 
decided that anti-SLAPP laws were substantive, and they should 
be applied to State law claims in diversity cases. The D.C. 
Circuit decided differently. The U.S. Supreme Court earlier 
this year in the Mebo case, denied the petition to review on 
that issue, leaving it uncertain, and leaving us with more 
inconsistency and questions about the application of First 
Amendment rights for our citizens.
    Third issue is the issue of Federal claims. There is 
currently no protection for those creative SLAPP claims that 
come in the form of a Federal cause of action. By definition, 
there is no particular cause of action. It is not limited by 
anything other than the fertile minds of the lawyers and the 
parties to who bring the claims. So what we are seeing now is, 
instead of filing a State law defamation claim, or an invasion 
of privacy claim, what we are seeing is people using very 
creative intellectual property claims in Federal forums so as 
to avoid anti-SLAPP statutes.
    In addition, like SLAPP claims that are not in any one 
particular form or fashion, SLAPP victims also are not any one 
form or fashion as well. You have SLAPP victims that are 
individuals, homeowners that are getting sued by their 
homeowner's associations.
    You have SLAPP victims that are businesses. Better Business 
Bureau gets sued regularly for their reliability reports. 
Politicians get sued for their campaign literature. The media 
gets sued for investigative reporting that they have done where 
they have uncovered significant amounts of Medicaid fraud.
    Whistleblowers get sued very, very frequently; they get 
sued for shining the light on things like--in Texas we had a 
case where a lobbyist-turned-whistleblower shone the light on a 
$110 million in no-bid contracts that were being offered by a 
State official. That led to an FBI investigation, a Public 
Integrity Unit investigation, and a State Auditor's Office 
investigation.
    What ended up happening? The whistleblower got sued for $90 
million by the company that was receiving the no-bid contracts. 
The anti-SLAPP law protected that whistleblower.
    In addition, trial lawyers. Trial lawyers get sued, often 
for statements that they make to the media, or for complaints 
that they file on behalf of their clients. Trial lawyers use 
anti-SLAPP laws to defend against those cases. We had a case in 
Texas involving a media report on Medicaid fraud. Not only was 
the media sued, but the individual plaintiff's lawyer who was 
seeking class-action plaintiffs was sued. Both parties used the 
anti-SLAPP statute to get rid of the lawsuit.
    This is a real problem; it is not anecdotal; it is a real 
problem. This happens on a daily basis. This is a nonpartisan 
issue, it is a both-sides-of-the-aisle issue, and it is one 
that the American Bar Association, academics, domestic violence 
groups, and organizations from the right and the left side of 
the aisle have come forward to support.
    I applaud this Committee for hearing this important matter, 
and I am happy to answer any questions the Committee has.
    [The prepared statement of Ms. Prather follows:]**
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    **Note: This witness statement is not printed in its entirety. The 
complete statement is available at the Subcommittee and can also be 
accessed at:

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    Mr. Franks. I thank all the witnesses for their testimony. 
We will now proceed under the 5 minute rule with questions, and 
I will begin by recognizing myself for 5 minutes.
    And Ms. Prather, I would like to begin with you. You 
mentioned that State laws, State anti-SLAPP laws, do not 
protect against Federal claims. I think, to paraphrase your 
testimony, you said it is limited only to the imagination and 
the fertile minds of the lawyers, which is a pretty broad 
spectrum.
    Can you give us examples of SLAPP claims being filed in 
Federal courts? It is that something that is a ubiquitous 
practice, or is it something that is beginning now, or how is 
that proceeding?
    Ms. Prather. Thank you, Mr. Chairman. It is something that 
is an increasing problem, to tell you the truth. And most of 
the time, not all the time, but most of the time you are 
looking at intellectual property claims.
    Like Lanham Act claims, where people are saying, ``This is 
a false designation of origin, or an unfair competition claim, 
when in reality it is a defamation claim dressed up like Lanham 
Act claim.
    So you have things like, you know, doctors whose theories 
have been debunked, and are suing other doctors for debunking 
those theories, and then suing them under the Lanham Act to 
avoid State anti-SLAPP laws. You have situations like the City 
of Inglewood, where a politician is not terribly enamored by 
the way in which his image has been depicted on YouTube, based 
on video that was from open meetings.
    And because there is, you know, really no claim for 
defamation for accurately portraying videos of an open meeting, 
instead, the claim becomes a copyright claim, an infringement 
claim, because the city owns the copyright to the video of the 
open meeting.
    Similar situations where you have individuals who are of 
substantial means, who may not like still photos that have been 
posted online about them. We have got a case, the Katz v. 
Chevaldina case, in which a Miami Heat minority investor and 
commercial real estate tycoon sued a disgruntled former tenant 
who had put some photos online that had been taken from a news 
article, and he made some comments about the ill treatment that 
they had received.
    Instead of suing that individual for defamation, Katz went 
and purchased the rights to the photos, and then sued for 
copyright infringement instead. This happens fairly frequently. 
Civil RICO is another area in which there has been a 
significant amount of Federal claim to avoid to anti-SLAPP law 
protections.
    Mr. Franks. Well, thank you. Your testimony is a strong 
indication of how fertile sometimes those minds really are. Mr. 
Schur, in your experience, what elements of State anti-SLAPP 
laws act as to deterrents to claims filed primarily to 
intimidate? I mean, I know Yelp users essentially sometimes are 
intimidated related to their reviews. Can you speak to the 
SPEAK FREE Act? Would it have a deterrent effect?
    Mr. Schur. Excuse me, I believe so. I think that any strong 
anti-SLAPP law has essentially four main components, which are 
all present in the SPEAK FREE Act. A sufficiently broad scope 
of protected speech to encompass all the types of claims, which 
is really, as has been mentioned, only limited to the fertile 
mind of the lawyers bringing them. Requirement that the 
plaintiff have facts before they enter the courtroom, to prove 
up the merit of their claims.
    An attorneys' fees provision, so that the person who 
prevails on their anti-SLAPP motion can be made whole following 
those initial proceedings, As well as an interlocutory appeal 
process to make sure that a detrimental decision can be 
corrected on appeal so that the speech is not chilled by the 
continuation of a lawsuit that is meritlessly challenging free 
speech.
    Mr. Franks. Well, thank you. And Mr. Brown, speaking of the 
interlocutory appeal provision in the SPEAK FREE Act, can you 
express your opinion on the importance of that, or the 
significance of it one way or the other?
    Mr. Brown. Sure, of course. Sorry, thank you. Of course. 
The interlocutory appeal provision is crucial for a couple of 
reasons.
    One, as Professor Reinert noted--you know, to me and to 
those of us supporting this legislation--it is very important 
to conceive of the rights that anti-SLAPP laws create as being 
substantive in nature, that they are akin to the immunities 
that are accorded to government officials when they are sued, 
for example, under Section 1983, and those officials have the 
right to take an interlocutory review.
    And the whole point of the interlocutory review provision 
is because these rights are akin to an immunity from suit, 
unless you have the chance to get in front of an appellate 
court prior to trial. Then the right is effectively denied. And 
so the interlocutory provision is essential to the overall 
architecture of the substantive rights.
    And in this area of First Amendment law, there is an 
additional reason why interlocutory review is very crucial. And 
I know this Committee has a submission from George Freeman, who 
is the executive director of the Media Law Research Center. And 
they have for years done a lot of empirical work on what 
happens when adverse decisions from a trial court go up to an 
appeals court for review. And those numbers are rather 
astonishing in this area of First Amendment law.
    The Committee will see that through the decades, close to 
70 percent of these adverse decisions from below get reviewed 
or overturned one way or another on appeal. And so in the First 
Amendment area, there is this additional reason why 
interlocutory appeal is so important, because of the role that 
Federal--excuse me, that appellate court judges have played in 
making sure that First Amendment rights are protected at the 
trial court stage. Thank you.
    Mr. Franks. Well, thank you all very much, and I will now 
yield to the gentleman from Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman, and I thank each of 
the witnesses for being here. I know you are not here for the 
pay but--I continue to have concerns anytime it may appear that 
we are usurping State government authority. I think we have got 
diversity, that we have got clear interest.
    But someone that has been very involved in this legislation 
is my friend from Texas, Mr. Farenthold. And I will continue to 
study the bill, and seek out answers to my concern, but I would 
like to yield the rest of my time to Mr. Farenthold.
    Mr. Farenthold. Thank you, Mr. Gohmert, and I want to thank 
our witnesses for being here as well. And Ms. Prather, you are 
a fellow Texan. Can you tell me a little bit about how the law 
has worked in Texas? I mean, what was the timeframe and expense 
involved in defending a lawsuit before and after the anti-SLAPP 
statute was enacted in Texas?
    Ms. Prather. Thank you, Congressman Farenthold. The 
statistics say that an average defamation-type lawsuit in Texas 
would last about 6 years, prior to the passage of anti-SLAPP. 
Now, we are looking at months, rather than years. It is a 
significant difference when you are dealing with a meritless 
claim. Obviously, if there is a meritorious claim, that claim 
goes forward. But if it is a meritless claim, it unburdens the 
judicial system by getting rid of the meritless claims in a 
swift manner.
    Mr. Farenthold. Let's talk about that for a second. Some of 
the critics of this say, ``All right, what do you do when 
somebody has actually come after you with something that is 
untrue?'' Let's say this whole Congress thing does not work out 
for me, and I decide to open Blake's Bistro.
    To me, it is pretty clear that if I sued somebody for 
saying, ``Your restaurant sucks,'' that would be their opinion, 
and it would be protected speech, and that would be a meritless 
lawsuit. But if somebody would come up and say, ``Oh,'' you 
know, ``Blake's served me a chicken-fried steak with a roach 
right in the middle of the cream gravy,'' that is a statement 
of fact; and if it is not true, I still want to have a way to 
deal with that through litigation.
    Can you assure me that this legislation would still protect 
me from my roach liar?
    Ms. Prather. Absolutely. I mean, there is nothing in this 
law, or in this bill, that prevents a meritorious claim from 
going forward. I think a number of the examples that have been 
given on the other side are hypothetical examples. There has 
not been cited a single meritorious case that was not allowed 
to go forward as a result of any sort of an anti-SLAPP law. You 
simply have to get over the initial hurdle, which you should 
have done before you filed the lawsuit, of being able to 
establish the facts that you are likely to be able to succeed 
on the merits.
    Mr. Farenthold. And so let me go back and talk of practical 
application. Because a lot of this is really amplified by the 
online community, and most online services that do reviews--I 
mean, Yelp comes to mind as a leader in that, as does 
Glassdoor, Trip Advisor, even the reviews on Amazon--to me, it 
seems a common feature among those that the opportunity for a 
business that feels like they have been lied about, or has a 
different opinion about a review, to post something themselves 
providing an alternative way for them to be heard as well, 
without going through a lawsuit.
    Yet, you have got big companies that say, ``We do not want 
anything,'' or even small businesses saying, ``We do not want 
anything about us. We are going to go after him.'' Can you talk 
a little bit about what other avenues besides a lawsuit are 
available to somebody who feels like his or her business has 
been abused online?
    Mr. Schur. Sure. I mean, as the Supreme Court said almost 
90 years ago, if there is speech that you do not like, the 
remedy for that is more speech, not enforced silence. At Yelp, 
we are firm believers in that, which is why we allow 
businesses, free of charge, to respond to any review, and that 
appears directly adjacent to the original review.
    We certainly never recommend litigation as a substitute for 
customer service. If you have one or two reviews, probably 
nobody is focusing on it as much as you, the business owner. If 
you have multiple critical reviews, more than that, then maybe 
you need to take a hard look at your business, and see if maybe 
somebody is pointing something out to you. In the case where 
someone does really feel the need to press litigation, 
certainly that is their right, but the case should have merit. 
Any case should have merit before you walk through the 
courtroom door, and the SPEAK FREE Act does nothing to prevent 
cases of merit from moving forward.
    Mr. Farenthold. All right. And finally, Mr. Reinert, I 
didn't want to--oh, I am sorry, I am out of time. If we get a 
second round, I will come back to you; I apologize. And I see I 
am out of time, and I yield back.
    Mr. Franks. I thank the gentleman that is giving the 
Chairman a hint that he would like a second round. And so with 
that, I think we will go ahead and do that. And, Mr. Gohmert, 
did you have questions? I will yield to the gentleman from 
Texas first.
    Mr.Gohmert. Thank you. I would just like to ask one 
question before I yield. You know, I have seen the concern that 
without anti-SLAPP laws in Federal court, it could lead to 
forum shopping. But if forum fits, I mean, is there is anything 
wrong with choosing the best forum for your lawsuit?
    Mr. Reinert. If I could answer that, Mr. Gohmert.
    Mr. Gohmert. Sure.
    Mr. Reinert. Right, that is the principle of federalism; 
that is the principle of concurrent jurisdiction; and that is 
the idea, which is that States get to experiment with the 
substantive laws that they think are best.
    And so when I hear both Ms. Prather and Mr. Brown say that 
this is about Erie--remember, Erie doctrine is about the Rules 
of Decision Act, and what does the Rules of Decision Act say? 
The Rules of Decision Act says State substantive law should 
govern. That is not what this statute does. So, if that is the 
argument, I am confused. I mean, normally when there is a 
circuit split about an Erie question, the Supreme Court 
resolves it.
    Mr. Gohmert. I want to yield the rest of my time to Mr. 
Farenthold. Thank you.
    Mr. Farenthold. Thank you, and I do not want to seem like I 
am ignoring your concerns that you raised, about third parties, 
for instance being able to jump in. But, you know, let's 
suppose I have posted on a semi-anonymous site like, you know, 
Glassdoor. I do not know if you are familiar with this, an 
employee can post reviews of employers anonymously to the 
public, but Glassdoor knows who they are. So if a plaintiff 
were to sue Glassdoor to try to get my personal information, 
should I not have a right to go in there and try to stop that 
from being disclosed? I guess my jumping in immediately 
discloses who I am----
    Mr. Reinert. No, no. Well, thank you, Representative 
Farenthold. I mean, I think that the answer is yes. The 
question is, does Federal court have a jurisdiction over that 
proceeding? And the answer to that question is no.
    I mean, Ms. Prather talked about the ABA supporting 
litigation like this. If you look at the legislation--if you 
look at the legislation the ABA has supported, it had no 
provision that allowed people to remove a case to Federal court 
because their personal identifying information was sought. So--
--
    Mr. Farenthold. But part of the thought behind this is to 
promote free speech, the First Amendment being actually a 
purely Federal creation. Should I not have access to Federal 
courts to defend my First Amendment right to speech, and is 
this not just a way of granting that access at a potentially 
lower cost, lower threshold?
    Mr. Reinert. Representative Farenthold, whether you should 
or should not, I do not know if it is a question that I am 
equipped to answer. I can say the Constitution does not permit 
jurisdiction over that. The issue can be raised in State court. 
State courts are bound to follow the Federal Constitution.
    If State courts are not respecting the Federal 
Constitution, that is a problem to be resolved through 
traditional means of review. So it is not that you do not have 
a claim; it is the question ``Does the Federal court have 
jurisdiction over it?'' And the answer, flatly, is no.
    Mr. Farenthold. Well, I think I am going to disagree with 
you on that as, you know, a defender of the First Amendment. 
But I certainly will agree to disagree with you. I know better 
than to get into an argument with a law professor. I remember 
quite a few of those from many years ago in law school; you 
never tended to win those, especially when you are a recovering 
attorney now sitting in Congress.
    Ms. Prather, did you want to talk a little bit more about 
why you do think it is appropriate for these to be available in 
Federal court? I will let you argue with the law professor.
    Ms. Prather. And I would like to bring up two points on 
this, and perhaps Mr. Schur can speak to the issue of 
statements being made by Yelp customers that obviously 
transcend State lines. And you know, the fact of the matter is, 
it goes back to First Amendment rights should be equal to all 
citizens, no matter where they live, and no matter what claims 
are filed against them.
    With regard to the ABA's statement as well, I want to also 
address that point that the professor brought up. The ABA 
statement is attached to my written testimony; it speaks for 
itself. The characterization was not correct with regard to the 
ABA's statement.
    But generally speaking, we have got a problem, and you all 
are the only ones that can fix that problem. And the problem 
is, is that you have got people out there that are going around 
and abusing people's First Amendment rights, and doing so in a 
creative fashion by using the Federal court system to avoid 
First Amendment protection.
    Mr. Farenthold. Thank you very much, and I do look forward 
to this legislation moving forward to stop this type of cyber-
bullying. And I yield back.
    Mr. Franks. Well, I am going to direct my question to Mr. 
Schur, and ask you to elaborate a little bit related to some of 
the constitutional questions. You know, this is the 
Constitution Subcommittee, and sometimes we avail ourselves of 
either trying to read it or defend it. And if you could give us 
your perspective on it, and why you believe that this is 
certainly something that would be constitutionally allowed, and 
beyond that, if it would be appropriate.
    Mr. Schur. Thank you very much, Chairman Franks, for the 
question. Fortunately, we live in a country where the First 
Amendment applies with equal force in every State. 
Unfortunately, we live in a country where SLAPPs can be filed 
in every State.
    Now, in the example that I gave earlier, with a Yelp 
reviewer writing a review of a restaurant or anything, really, 
it is not simply people in that State, or in that community 
that are reading those reviews. I looked up reviews from 
California to find out where I was going to stay here in D.C., 
where I am going to go to dinner. This is literally interstate 
commerce, if anything else is. So I would be shocked if there 
was no basis for Congress to regulate this particular subject 
matter.
    Mr. Reinert. Mr. Chairman, I hate to breach etiquette, and 
if it is, please forgive me. Can I make an observation?
    Mr. Franks. Sure.
    Mr. Reinert. There are two separate questions here. There 
is the question of Article III jurisdiction, and there is the 
question of Congress's authority. I happen to agree with Mr. 
Schur, that with respect to some of these issues with respect 
to Yelp user reviews, they would fall within interstate 
commerce, and therefore would be within the Congress' ability 
to regulate, but that is separate from Article III. Under 
Article III, Congress cannot expand the jurisdiction of the 
Federal courts. Yes, the First Amendment applies throughout the 
land, and we rely on State courts to apply it and Federal 
courts to apply it. That is the principle of concurrent 
jurisdiction, so.
    Mr. Gohmert. You do not think under Article III, section 2, 
Congress can limit the jurisdiction of Federal courts?
    Mr. Reinert. Congress can certainly limit the jurisdiction 
of Federal courts. They cannot expand it beyond the bounds of 
Article III, section 2, which is what you do when you allow 
removal, either based on the motion to quash, or over non-
diverse State claims.
    Could you add a provision like the Federal officer defense 
provision, in which you have removal when a Federal officer 
raises a Federal defense? Yeah, maybe you could do that. But 
that is not what this legislation does.
    And there are lots of issues that come up in State court in 
which defendants are raising constitutional issues. We count on 
State courts, we trust State courts--there is a long principle 
in this country of trusting State courts to adjudicate those. 
And the question is ``Why should it be any different here?''
    Mr. Franks. Well, I am going to take Mr. Farenthold's 
advice, and try to demur from debating law professors, and 
refer if I could to Mr. Schur. Would you have any response to 
Mr. Reinert?
    Mr. Schur. Thank you very much, Chairman Franks. Again, we 
are here to talk about free speech, which is guaranteed by the 
Constitution. It is certainly a Federal issue, in that people 
be allowed to speak their views online, and that not be subject 
to meritless cases. So I fully believe that Congress has a 
right, and in fact should be regulating in this area.
    Mr. Franks. Finally, Ms. Prather, your name was taken in 
vain a few times. Did you have sufficient opportunity to 
respond?
    Ms. Prather. I do believe that I have, Mr. Chairman. The 
one thing that I would encourage you all to do is look at the 
fact that there is a patchwork here, and there are holes that 
need to be filled, and Congress is the only vehicle that can 
close the loopholes that exist. And I applaud you all again for 
considering this legislation. Thank you.
    Mr. Franks. Well, on that note, I want to thank you all for 
your very compelling testimony, and this concludes today's 
hearing. And I certainly thank the audience and the witnesses 
for attending.
    And without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses, 
or additional materials for the record. And I would thank the 
witnesses and thank the Members, and again, the audience, and 
this hearing is adjourned.
    [Whereupon, at 2 p.m., the Subcommittee was adjourned 
subject to the call of the Chair.]

                            A P P E N D I X

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               Material Submitted for the Hearing Record

   Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy LLP
   
   
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 Prepared Statement of the Motion Picture Association of America, Inc.


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        Response to Questions for the Record from Aaron Schur, 
                Senior Director of Litigation, Yelp Inc.
                
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  Response to Questions for the Record from Bruce D. Brown, Executive 
       Director, The Reporters Committee for Freedom of the Press
       
       
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    Response to Questions for the Record from Alexander A. Reinert, 
          Professor of Law, Benjamin N. Cardozo School of Law
          
          
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