House Constitution Subcommittee Hearing Laudatory on Speak Free Act

House Judiciary Committee Chairman Bob Goodlatte, R-Va., remained neutral during the hearing on HR-2304, even as he criticized SLAPPs. “The internet provides a nearly unlimited, low-cost forum for all kinds of constitutionally protected communication,” Goodlatte said. “But within the context of [SLAPPs], the cost of internet expression protected by the First Amendment is on the rise.” HR-2304 is one of two House bills getting Capitol Hill attention this week that would curb business practices aimed at discouraging consumers from writing negative online reviews. The House Commerce Committee was set to begin a markup after our deadline Wednesday and running into Thursday that would include the Consumer Review Fairness Act. HR-5111 would prohibit companies from using gag clauses in their terms of service to prevent consumers from posting negative online reviews of products and services.

Rep. Blake Farenthold, R-Texas, HR-2304's lead sponsor, guided much of the questioning during the House Constitution and Civil Justice Subcommittee hearing to frame the bill as being narrowly tailored to “make it easier for those who are victimized” by anti-SLAPP lawsuits to end them at an early stage. HR-2304 is an “important piece of legislation” for protecting First Amendment free speech rights, Farenthold said. He said the bill wouldn't endanger the prospects for meritorious suits. “Nothing in [HR-2304] prevents a meritorious claim from going forward” in federal court, said Public Participation Project board member Laura Prather, a Haynes and Boone intellectual property and privacy lawyer. Plaintiffs simply need to “get over the initial hurdle” of establishing that you have evidence that would make it likely for them to “be able to succeed on the merits,” she said.

Franks focused on how individual provisions in HR-2304 would improve upon state-level anti-SLAPP statutes. Yelp Senior Director-Litigation Aaron Schur endorsed HR-2304 as having all of the “main components” of a “strong" anti-SLAPP law, including coverage for a “sufficiently broad scope of protected speech that would encompass all types of SLAPP-related claims. HR-2304 also includes a needed fee-shifting provision and allows interlocutory appeals of SLAPP cases to federal appeals courts, Schur said. HR-2304's interlocutory appeals provision is particularly “essential to the architecture” of an anti-SLAPP statute, said Reporters Committee for Freedom of the Press Executive Director Bruce Brown.

Gohmert said he's reserving judgment on HR-2304 amid further review of the bill's provisions. He said he continues to be concerned about the possibility the bill could be “usurping” state governments' authority by pre-empting their anti-SLAPP laws. Prather said “there is a patchwork here and there are holes that need to be filled.” Congress “is the only vehicle that can close the loopholes that exist” via states that don't already have anti-SLAPP laws or have weaker versions of such laws, she said.

Gohmert countered HR-2304 supporter concerns that lack of a federal anti-SLAPP law could lead to forum-shopping of SLAPP suits to states without their own laws: “If the forum fits, is there anything wrong with choosing the best forum for your lawsuit?” The principle of concurrent jurisdiction should allow states to “experiment with substantive laws that they think are best,” Reinert said. He said HR-2304 could be considered unconstitutional because it expands the authority of federal courts at the expense of state courts. “We count on state courts, we trust state courts,” Reinert said.