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Statements on Introduced Bills and Joint Resolutions

Floor Speech

By: Jon Kyl
By: Jon Kyl
Date: Aug. 2, 2012
Location: Washington, DC
Issues: Judicial Branch


Mr. KYL. 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.

Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court.

At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation.

The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.''

This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as:

Such evidence as, in the judgment of the law, is sufficient to establish a given fact and which if not rebutted or contradicted, will remain sufficient. [Prima facie evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence.

In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated:

The established meaning in Virginia, then, of the term ``prima facie evidence'' appears to be perfectly orthodox: It is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. ``Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.'' 7B Michie's Jurisprudence of Virginia and West Virginia  32, 1998, (emphasis added).

Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part.

Other Federal courts continue to use this definition of ``prima facie evidence:''

``A prima facie showing simply means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose.'' Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167, 1176 n.13, 11th Cir. 2002.

``Under [the prima facie evidence] standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution. The prima facie showing must be based upon evidence of specific facts set forth in the record. To meet this requirement, the plaintiff must go beyond the pleadings and make affirmative proof. However, in evaluating whether the prima facie standard has been satisfied, the district court is not acting as a factfinder; rather, it accepts properly supported proffers of evidence by a plaintiff as true and makes its ruling as a matter of law. When the district court employs the prima facie standard appellate review is de novo.'' United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir. 2001, citations and quotations omitted.

``Prima facie evidence consists of specific factual information which, in the absence of rebuttal, is sufficient to show that a fairness doctrine violation exists. * * * * In general terms, prima facie evidence is evidence which is sufficient in law to sustain a finding in favor of a claim, but which may be contradicted.'' American Security Council Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24, D.C. Cir. 1979.

``A prima facie case is established by evidence adduced by the plaintiff in support of his case up to the time such evidence stands unexplained and uncontradicted. The words `prima facie,' when used to describe evidence, ex vi termini imply that such evidence may be rebutted by competent testimony. The term prima facie evidence' implies evidence which may be rebutted and overcome, and simply means that in the absence of explanatory or contradictory evidence the finding shall be in accordance with the proof establishing the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282, 289-90, 7th Cir. 1949, citations and quotations omitted.

``The term prima facie evidence means * * * * [e]vidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Prima facie evidence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence.''' Gibson v. Zant, 547 F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law Dictionary, 5th Edition.

`Prima facie evidence' is evidence which, if unrebutted or unexplained, is sufficient to establish the fact to which it is related. It proves the fact until other proof contradicts or overcomes the factual hypothesis initially set up by the presumption.'' DAL Int'l Trading Co. v. The SS Milton J. Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern.

The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that:

Some courts have developed criteria for determining whether the activities and products of corporations constitute matters of public interest. As previously indicated, matters of public interest include such essentials of life as food and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623 F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc., supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863. Widespread effects of a product are yet another indicator that statements about the product are in the public interest. Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th Cir.1971) (possible causes of cancer are a matter of public concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp. at 156, article on an arthritis cure is in public interest because significant portion of population is afflicted with arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90, 1974, flammability of 25,000 baby cribs held to be matter of public interest; Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86,Ð----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct. 65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter of public concern. Still another criterion is substantial government regulation of business activities and products.

The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers.

Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense.

Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C.  1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C.  205, which allows removal of disputes that appear to be covered by an international arbitration agreement.

Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.''

The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under  1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal-question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)).

In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that

``[t]he judicial power * * * * was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, in the same forum,'' and further noting that ``we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts.''

The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority.

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

There being no objection, the material was ordered to be printed in the Record