After the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, 1
which ruled that governments may take a person’s property for private economic development, eminent domain became a household term. In response to an unprecedented public backlash, state legislatures and local municipalities changed their laws. 2
The President of the United States issued an executive order. 3
Journalists found the combination of personal drama, public outrage and political uproar to be fertile soil and wrote extensively on the subject.
Victims of eminent domain abuse and members of their communities spoke loudly against projects involving eminent domain for private gain. Because developers and city officials often cannot stand up to public scrutiny of their abuse of eminent domain for private gain, project after project was defeated merely by telling the public about what was happening. 4
In short, in the wake of the Kelo decision, eminent domain became a major topic of debate and discussion all across the country.
Journalist Carla Main found the topic of eminent domain fascinating. A former attorney, Main wanted to do an in-depth investigation, telling the story of a single project and how that story fit into the national drama. The events that unfolded in Freeport, Texas, had all the elements of a great story. The city of Freeport worked with Dallas developer H. Walker Royall to attempt to take a generations-old family-owned local business, Western Seafood Company (and its affiliate Western Shellfish Corporation) and give the properties to Royall for use in a luxury marina development project.
Freeport filed condemnation papers against the Gores, 5
instructing their attorneys to redouble their efforts just hours after Kelo came down. 6
The Gores brought their own lawsuit in federal court to defend their property, 7
and Royall sued the Gores and another eminent domain activist, claiming Wright Gore, III’s website opposing the project was defamatory. 8
When the Gores won their condemnation actions, the city appealed, so that the threat of condemnation continues to hang over the Gores. 9
It had all the elements of a compelling narrative: interesting characters, lots of drama, and important public and political issues.
Main’s book, Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, 10
published by Encounter Books, was a success. It was reviewed in many newspapers, including The Wall Street Journal. 11
It was nominated for the Texas Historical Commission’s annual T.R. Fehrenbach Book Award and it won a highly competitive independent press award for political science writing. 12
When Main was getting ready to publish Bulldozed, she reached out to nationally renowned scholar and law professor Richard Epstein to take a look at her work. Epstein is especially respected for his scholarship in the area of property rights. He teaches at the University of Chicago Law School 13
and at New York University School of Law, 14
and has published extensively on constitutional law, eminent domain and the Fifth Amendment. After reading a draft of the book, Epstein offered to provide a blurb for the back cover.
About one year after Bulldozed was released, Royall filed a second defamation lawsuit, this time against Main, Epstein and Encounter Books, the publisher of Bulldozed. 15
Royall also sued two newspaper companies and a journalist who published a review of Carla’s book. Royall’s claim is that, by engaging in a public discussion of Royall’s role in the eminent domain abuse that occurred in Freeport, the defendants have damaged his reputation. Royall has asked the court to order Encounter to shut down its printing press and not release any additional copies of Bulldozed.
The Institute for Justice Texas Chapter (IJ-TX), which litigates free speech and property rights cases nationwide, is representing Main, Epstein and Encounter Books in their defense against Royall’s lawsuit. 16
Before becoming an author and journalist, Carla Main practiced as an attorney in New York City for ten years. She worked in the areas of real estate, First Amendment and civil rights. Until 2005, Main was an associate editor of The National Law Journal, where she edited the opinion page of the paper and wrote a column on law and society. She has written for The Wall Street Journal, Policy Review, National Review, The American Lawyer and The New York Sun, among other publications.
Her book, Bulldozed, in addition to examining the history of eminent domain in America from the time of the Founders, is a sober, journalistic account of the events that occurred in Freeport, Texas. Royall featured prominently in those events, and so he features prominently in the book. The statements made about Royall in the book are factual, derived almost entirely from legal papers and third-party interviews. Main tried more than once to interview Royall for the book, but he refused to meet with her.
The book documents an important episode in Texas history. The events in Freeport spurred Texas to become the second state in America to reform eminent domain laws after Kelo and to remove the eminent domain power Freeport used against the Gores. Indeed, a member of the Gore family testified before the Texas legislature the summer after Kelo, a fact chronicled in Bulldozed. Royall, of course, is part of this history.
Richard Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School, where he has taught since 1972. He is also a visiting professor at the New York University School of Law and is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. Epstein has published 14 books. His Torts and Cases and Materials on Torts textbooks are widely used in law schools across the nation. 17
He has written numerous articles on a wide range of legal and interdisciplinary subjects. In 1985, Epstein published Takings: Private Property and Eminent Domain, a book about the Fifth Amendment and the limits of the government’s power to use eminent domain to take private property. 18
The book has been cited four times by the U.S. Supreme Court. 19
Takings has been called an “instant classic” and a “must read” in the debate about eminent domain and property rights in America. 20
Epstein was sued by Royall over a small blurb on the back cover of Bulldozed. It reads, in its entirety:
Like a Greek tragedy unfolding, Carla Main’s book chronicles the eminent domain struggles in Freeport, Texas, which pitted the Gore family, with its longtime shrimp business, against the machinations of an unholy alliance between city politicians and avaricious developers. If you have ever shared the Supreme Court’s unquestioned deference to the public planning process that shaped its ill-fated Kelo decision, you’ll surely change your mind as you follow this sordid saga to its bitter end. You’ll never look at eminent domain in the same way again. 21
Encounter Books is an imprint of Encounter for Culture and Education, a tax-exempt, non-profit organization. Encounter Books has more than 100 titles in its current catalog on topics including religion, military affairs, Greek civilization and current events. 22
Roger Kimball, president and publisher of Encounter Books, also publishes The New Criterion magazine. He writes as an art critic for the London Spectator and National Review. He is the author of several books on art and art criticism. His writings have appeared in The Times Literary Supplement, Modern Painters, Literary Review, The Wall Street Journal, The Public Interest, Commentary, The Spectator, The New York Times Book Review, The Sunday Telegraph, The American Spectator, The Weekly Standard, First Things, American Outlook, Crisis, National Review and The National Interest. 23
Silencing Critics—and Journalists—Through Litigation
In the wake of the Kelo decision, which gutted constitutional protections afforded to property owners under the Fifth Amendment, grassroots activists against eminent domain abuse began fighting back and assumed an important role in public debate. By spotlighting the actions of tax-hungry cities and land-hungry developers, opponents of eminent domain force those who would abuse this awesome power of government for private gain to back down as the result of widespread public outcry against what is happening.
Such a backlash rose up against deep-pocketed developer H. Walker Royall’s luxury marina project in Freeport, Texas. But rather than responding to his many critics through reasoned argument, he attempted to silence them by harassing them with costly defamation lawsuits. These suits were designed to distract his critics from questioning his actions and to drain them financially. Unfortunately for men like Royall, the First Amendment protects people’s right to speak freely about important public issues. That speech is at the heart of the First Amendment’s protection. Certainly government officials and private developers do not like it when people criticize their projects; they would rather their opponents live in fear of litigation and keep their mouths shut, which is why people like Royall file suit.
Journalism is at the center of public debate and discussion about important issues like eminent domain abuse. Indeed, without the voluminous reporting by journalists nationwide about Kelo and its aftermath, eminent domain would not be the well-understood and questioned term that it is today. Journalists like Carla Main bring crucial focus and clarity to tales of eminent domain abuse through their independent investigations into the circumstances and ramifications of each story. If private and politically influential developers like Royall are able to stop journalists from writing about eminent domain abuse, both the First Amendment rights of journalists and the Fifth Amendment rights of property owners will suffer.
A Disturbing National Trend
Unfortunately, the bullying tactics of people who would abuse eminent domain for private benefit do not end with a disdain for property rights. These people also try to destroy basic First Amendment rights. In a disturbing national trend, more and more eminent domain abusers are also employing harassing lawsuits designed to force anyone who speaks out against them into silence.
In Clarksville, Tenn., when the city council considered a redevelopment plan that allowed the use of eminent domain for private development, a group of home and business owners formed the Clarksville Property Rights Coalition (CPRC). Because the group dared to speak out against the project in an advertisement in a local newspaper, a member of the Clarksville city council and a member of the city’s Downtown District Partnership filed a frivolous libel lawsuit against the CPRC and demanded the group pay them $500,000. 24
The Institute for Justice is defending the CPRC in this suit.
In Renton, Wash., eminent domain activist Inez Peterson led a successful fight against a blight designation—which would have enabled the use of eminent domain—that the city sought to place on the Renton Highlands neighborhood. Prominent Renton developers Denny and Bernadene Dochnahl sued Peterson for various statements she made about them, 25
such as when Peterson in an email called Ms. Dochnahl “a haughty and proud Pharisee.” 26
In St. Louis, the city government itself is trying to shut down a protest of its abuse of eminent domain. Jim Roos owns well-maintained property that, as a public service, houses the urban poor. The government has slated the property to be taken by eminent domain because of its location in a redevelopment area. Roos decided to fight back with free speech. On the side of one of his buildings, he placed a five-story-high mural that called for the city to “End Eminent Domain Abuse.” Employing the city’s restrictive sign code, St. Louis is now trying to force Jim to remove the mural. 27
The Institute for Justice is fighting to save the mural in litigation in federal court.
All of these cases, as well as the lawsuit filed here, signal the continuation of an ominous trend—the use of litigation and other forms of petty censorship to chill the speech of those who fight eminent domain abuse, or, as in this case, even talk about it. If these tactics are allowed to succeed, then other developers and politicians can and will use them to harass, distract and drain the pocketbooks of activists who take a public stand against their redevelopment projects.
Even if defamation lawsuits fail in court—and they should—the large expenditure of time and money associated with defending them all too often accomplishes the goal of silencing those who stand up for their rights. That is why the Institute for Justice is representing so many of these individuals: to stop this insidious trend.
Investigation and Criticism of Eminent Domain Abuse Is Protected Under the First Amendment
“An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.” 28
—U.S. Supreme Court Justice Hugo Black
Expressing an opinion—even a strong one—about a political issue is not defamatory. Only statements that are both false and extraordinarily offensive can be libelous. And in the case of public figures, the person making the statements must act with reckless disregard for the truth. 29
The First Amendment allows people to criticize those who have, in the words of the U.S. Supreme Court, “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” 30
By adding the First Amendment to the Constitution, the Framers “eschewed silence coerced by law—the argument of force in its worst form[,]” as former U.S. Supreme Court Justice Louis Brandeis explained. 31
Indeed, the Supreme Court has long recognized that “[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” 32
The First Amendment secures this principle for all Americans: “One of the prerogatives of American citizenship is the right to criticize public men and public measures[.]” 33
While those in the public eye certainly may not enjoy being criticized, the First Amendment requires that they tolerate that criticism: “[I]n public debate our citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment.’” 34
Without that breathing space—in a world where that space is instead filled with the constant threat of litigation by prickly and petty public figures—free speech would be severely chilled. People would hesitate to speak out on public issues out of fear of being sued. 35
America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” 36
would become a quaint relic of a distant past. To avoid that result, the U.S. Supreme Court and other courts routinely toss out defamation lawsuits in which individuals complain about criticism of their public actions. 37
In short, under the First Amendment, the proper response to speech one does not like is more speech—not litigation designed to silence critics. If Royall doesn’t like Bulldozed, he should engage his critics in public rather than asking the court to silence them for him.
Bulldozed represents quintessential political speech that is fully protected under the First Amendment. Eminent domain abuse is an issue of public concern, and those who participate in public projects open themselves up to public scrutiny and criticism. By defeating Royall’s baseless and obnoxious lawsuit, the Institute for Justice will vindicate the right to free and open debate on issues of public importance generally and eminent domain in particular.
Developers cannot bully their critics through defamation lawsuits. As this tactic becomes ever more popular among those who seek to abuse government’s awesome power of eminent domain for their private gain, it becomes imperative to reaffirm the First Amendment’s protection of those who speak out against them. Everyone must be free to engage in vigorous and open public debate about matters of public importance—like whether government should be able to take one person’s property and give it to someone else.
Developers who choose to partner with governments that use eminent domain to acquire private property for a project become—through that partnership—public figures. When governments use eminent domain on their behalf, those developers should expect that the public will talk and write and protest. People who face losing their property can and should complain; members of the public will discuss and debate; and journalists will report on the controversy. That’s life in America. A developer cannot expect to take advantage of government’s power to seize someone else’s land and then prevent anyone from criticizing or exposing this behavior. The First Amendment does not allow the courts to be used as a weapon against honest critics of government action.
The lead attorney on the case is Matt Miller, executive director of the Institute for Justice Texas Chapter, in Austin. Assisting him are IJ-TX Staff Attorney Wesley Hottot and Institute for Justice Senior Attorney Dana Berliner. Berliner was co-counsel in the landmark U.S. Supreme Court Kelo case, and earned a unanimous Ohio Supreme Court decision in City of Norwood v. Horney, 38
which greatly restricted eminent domain abuse in that state.
For More Information Contact:
John E. Kramer
Vice President for Communications
Institute for Justice
901 N. Glebe Rd., Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 205