In the wake of the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, ¹  which held that local governments may take a person’s property for private development, home and business owners across the country have had to rely on grassroots activism to defeat eminent domain abuse.  Especially in states that have not enacted strong post-Kelo protections against that abuse, the ability to keep one’s property depends largely on the right to speak freely.

Two men—Richard Swift, a member of the Clarksville, Tenn., City Council, and Wayne Wilkinson, a member of Clarksville’s Downtown District Partnership—are staging a direct assault on that right.  When the city council was considering a redevelopment plan that allowed for the use of eminent domain for private development, a group of home and business owners got together to form the Clarksville Property Rights Coalition.  Because the group dared to speak out against the project in an advertisement in a local newspaper, Swift and Wilkinson filed a frivolous libel lawsuit against the CPRC and demanded the group pay them $500,000. ²

The developers claim that this paragraph in the advertisement defamed them and harmed their “reputation and public standing”:

Hundreds of homeowners and property owners have voiced their opposition to this Plan, but our concerns are being ignored.  No one supports this Plan except a few in the development community, those who expect to benefit from it.  Mayor Piper has done everything possible to exclude opponents from process.  When a public hearing had to be scheduled, the public wasn’t even allowed to speak.  This Redevelopment Plan is of the developers, by the developers, and for the developers.  Mayor Johnny Piper, Councilman Richard Swift, and DDP Member Wayne Wilkerson [sic], are all developers.  They all own development property in the Plan area. ³

Political criticism like this occurs in this country every day—and indeed, has been a mainstay of debate on public issues since America’s founding.  And the ad’s criticism is rather tame:  It points out that the mayor, Swift and Wilkinson are all developers who own property in the redevelopment area. ⁴ It simply expresses an opinion that they are pushing for approval of the redevelopment plan because it will serve their personal interests.

In essence, Swift is suing the CPRC because they said he is doing a bad job as a public servant, and Wilkinson is suing the group because they said that his pursuit of the plan is motivated by a private interest rather than the public interest.  Their lawsuit is frivolous because the First Amendment clearly protects such political speech about important public issues.

No doubt every politician and developer—especially those involved in controversial redevelopment projects—wishes he could avoid criticism.  Most recognize that it is wrong to try to silence their critics with retaliatory litigation.  But some, like Swift and Wilkinson, decide to drag their critics into court.  Facing litigation is an intimidating and stressful experience, and defending even the most frivolous lawsuit takes lots of time and money.  Thus, even though such lawsuits typically fail in court, they often succeed in wearing down and silencing critics.

Unfortunately, Swift and Wilkinson’s lawsuit against the CPRC is just the latest outrageous example of politicians and developers who use litigation and other forms of petty censorship to suppress the speech of people who want to protect their neighborhoods from eminent domain abuse.

If politicians and developers could sue anyone who criticized them, everyone in America would need a lawyer.  But under the First Amendment, you shouldn’t need a lawyer to speak out about politics.  In order to vindicate this principle—and to make it clear to thin-skinned bullies like Swift and Wilkinson that suing people simply because they disagree with you is wrong—the Institute for Justice  stepped in to defend the CPRC from Swift and Wilkinson’s meritless lawsuit.  IJ, a non-profit, public interest law firm that defends property rights and First Amendment freedoms nationwide, filed a motion in the Circuit Court for Montgomery County, Tenn., on June 30, 2008, to dismiss their lawsuit.

The Clarksville Property Rights Coalition:  Using Free Speech to Protest Eminent Domain Abuse

When a small group of neighbors and business owners first heard about the city of Clarksville’s redevelopment plan, they were concerned that it allowed the city to use eminent domain to take hundreds of homes and businesses and transfer them to private developers.  In the wake of the Kelo decision, they knew that their best chance to stop the plan—which covers a large swath of the city, including its downtown—was to create a grassroots group that could educate the public about the plan’s negative impact on the community.  Thus, they formed the Clarksville Property Rights Coalition.

The group’s members include Debbie Hunt and her sister, Dr. Rebecca Slayden-McMahan (Becky).  Both are fourth-generation residents of Clarksville, and both are educators.  Debbie has been a teacher for over 30 years, and Becky, who is a professor of education at Austin Peay State University, has been at the university for 27 years.   Debbie’s home has been in the family since 1929; her parents and grandparents lived there.  Because that home is in the redevelopment area, she lives in constant fear that the city will one day use eminent domain to take it from her and give to someone else for private development.  Although Becky lives outside the redevelopment area, she was so concerned about the threat to all of the homes and businesses within the area, including Debbie’s, that she took on the responsibility of being the CPRC’s spokesperson.

Joyce Vanderbilt and Pam Vandeveer are also members of the CPRC.  For the past sixteen years, Joyce has owned Kelly’s Big Burger.  She got involved with the CPRC because her restaurant is in the redevelopment area, and she does not want to lose her business so that politically connected developers can use her property for private development.  Pam, a former tax preparer and bookkeeper, does not live in the redevelopment area, but she was so outraged by the Kelo decision that she felt she had no choice but to get involved and support her neighbors.  She serves as Treasurer of the group.  Because her name was on the ad, she was the first member of the CPRC to be named and served with a copy of the lawsuit.

The CPRC’s efforts resulted in changes to the plan, but those changes did not alleviate the concerns of the group and others in the community.  Because of their position and resources, the mayor, city councilmen who supported the plan, and other proponents of the plan were able to spread their arguments for its passage throughout the city.  By contrast, the CPRC, which is a small group with very limited resources, found it difficult to reach citizens of Clarksville who live outside the redevelopment area.  In an attempt to do so, they ran the ad that became the subject of Swift and Wilkinson’s lawsuit in the local newspaper, The Leaf-Chronicle, on May 3, 2008.

  The Chilling Effect of a Lawsuit

Swift and Wilkinson filed their lawsuit against the CPRC just six days after the ad ran and just one day after the city council voted for the ordinance that adopted the redevelopment plan.  They demanded the court make the CPRC’s members pay them $500,000 for alleged damage to their “reputation and public standing.”  The CPRC’s members were stunned:  They could not believe that they had been sued for simply speaking out and stating an opinion on an important public issue.

“One of the very people who should be a public servant who protects us is now going after us,” Becky said, referring to Councilmember Richard Swift.

Being the subject of a pending lawsuit—even though it was clearly frivolous—was intimidating.  Becky and the other members of the group became reluctant to speak out against the plan, and the prospect of having to hire a lawyer and devote all of their energy to fighting a lawsuit was frightening and the source of many sleepless nights.

Joyce knew that she and the rest of the group had done nothing wrong:  “We spoke the truth and expressed an opinion.  In America, you have a right to do that.”  But she still felt that, with a lawsuit hanging over the group’s head, they had to curtail their activities.  “I was concerned that we could get sued again for simply expressing our opinions.  A lawsuit is scary even when you know you’ve done nothing wrong.”

Over time, much of the group’s fear has turned into outrage.  “Politicians and developers have to learn that they cannot bully us and other activists into submission by filing frivolous lawsuits,” said Debbie.  “This lawsuit violates my right to speak out against the abuse of power.  We’re fighting not just for us, but for every home and business owner who find themselves in a similar situation.”

According to Pam, “Free speech isn’t free if a politician or developer can sue you just because you criticize them.  We’ve got to take a stand.”

Taking that stand is necessary in order to stem a growing trend of attempts by politicians and developers to silence free speech about controversial redevelopment projects.

An Ominous Trend:  The Assault on Free Speech Rights in Kelo’s Wake

In the wake of the Kelo decision, which gutted the protection that the Fifth Amendment’s “public use” clause was intended to give to home and business owners against takings for private development, grassroots activism against eminent domain abuse has assumed an even more important role.  Since Kelo, at least 23 projects have been defeated because citizens have banded together to save their homes and businesses, as well as those of their neighbors.  Public outrage about Kelo also fueled political change at the state level, as 42 states reformed their eminent domain laws to rein in condemnation for private development.

This activism necessarily includes speaking out about how it is wrong for the public power of eminent domain to be used to give property to private developers who will benefit from that abuse of power.  If the ability to speak out about such abuse is weakened, then home and business owners lose a vital tool in defending their properties.  Indeed, speaking out is an effective way of seeking political change—and apparently politicians and developers do not like that.

In Freeport, Texas, a developer filed a lawsuit against Wright Gore, III, who is fighting to save his family business from being condemned to make way for a private marina. The condemnation papers were filed literally hours after the Kelo decision was issued.  To fight back, Wright created a website, www.scandalinfreeport.com.  Among the statements on the site about which the developer complained are:  “Walker takes your property, you get the bill, you get the boot,” and “The Scandal in Freeport is a scheme invented by Mr. H. Walker Royall.” ⁵  Royall is asking a court to award him several million dollars in damages, as well as an injunction to shut down the website. ⁶

In Renton, Wash., eminent domain activist Inez Peterson led a fight against a blight designation—which enables the use of eminent domain—that the city was trying to place on the Renton Highlands neighborhood.  Prominent Renton developers Denny and Bernadene Dochnahl sued Inez for various statements she made about them. ⁷   For example, in an email, Inez called Ms. Dochnahl “a haughty and proud Pharisee.” ⁸   Inez also posted a letter on a website from an anonymous activist that commented on the sewage problem at a local bar that had recently been acquired by the Dochnahls.  The letter joked that “as well connected as the Dochnahls both are, maybe they can get [the sewage] to run uphill.” ⁹   The Dochnahls are asking for damages and attorneys fees. ¹⁰

In St. Louis, the city government itself is trying to shut down a protest of its abuse of eminent domain.  Jim Roos, who owns property slated to be taken by eminent domain due to its location in a redevelopment area, decided to fight back with free speech.  On the side of one of his buildings, he placed a mural that called for the city to “End Eminent Domain Abuse.”  Using the city’s restrictive sign code, St. Louis is now trying to force Jim to remove the mural. ¹¹  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 against the CPRC, signal the beginning of an ominous trend—the use of frivolous litigation and other forms of petty censorship to chill the speech of those who fight eminent domain abuse.  If these tactics are allowed to succeed, then other developers and politicians can and will use them in order 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, which 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.

Why Swift and Wilkinson’s Lawsuit is Frivolous

Swift and Wilkinson brought a libel lawsuit against the CPRC.  When most people think of libel, they think of tabloid stories that say that someone is guilty of adultery or committing a felony. ¹²  But expressing an opinion about a political issue is not libel.  Only statements that are both false and extraordinarily offensive can be libelous.  And in the case of public figures, the person making the statement would have to act with reckless disregard for the truth.

For example, accusing someone of murder when there is no evidence at all would be defamation.  But statements that are merely “annoying, offensive or embarrassing” ¹³  to someone are not libel.  Indeed,  criticisms of public officials and others in the public eye regarding their public activities simply cannot be libelous.

There is a reason for this:  the First Amendment.  In adding it 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. ¹⁴   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.” ¹⁵   The First Amendment secures that principle for all Americans:  “One of the prerogatives of American citizenship is the right to criticize public men and public measures.” ¹⁶

Of course, as everyone who has ever read a newspaper, watched political talk shows on cable news, or been to a city council meeting knows, discussion of public affairs “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” such as those by the CPRC against Richard Swift, an elected official. ¹⁷   Indeed, in political debate, accusations that a public official is “controlled by special interests” or has “betrayed” his constituents are routine.

The same is true for any public figure such as Wayne Wilkinson who has, in the words of the Supreme Court, “thrust [himself] to the forefront of particular public controversies in order to influence the resolution of the issues involved.” ¹⁸

While those in the public eye certainly do 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 breathing space to the freedoms protected by the First Amendment.” ¹⁹   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. ²⁰   America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” would become a quaint relic of a distant past. ²¹   To avoid that result, the Supreme Court and other courts routinely toss out defamation lawsuits in which individuals complain about criticism of their public actions. ²²

In short, under the First Amendment, the proper response to speech one does not like is more speech—not litigation designed to silence critics.

When reading Swift and Wilkinson’s lawsuit, it becomes clear that they do not really take issue with specific statements of fact that are in the ad.  They do not allege that specific statements of fact—for example, that they are developers—are false.  Instead, they are upset about the opinion the ad expresses about their public conduct.   But simply being upset about criticism is no reason to file a lawsuit, and the statements in the ad are fully protected by the First Amendment and Tennessee law.   Thus, the lawsuit is frivolous.  But as the experience of the CPRC demonstrates, even frivolous lawsuits can have the practical effect of chilling free speech.

Legal Strategy

The CPRC’s ad is core political speech and enjoys full protection under the First Amendment.  By defeating Swift and Wilkinson’s lawsuit, the Institute for Justice will vindicate the right to free and open debate on issues of public importance.  To remove the chilling effect that the lawsuit has had on the CPRC’s speech as soon as possible, the Institute on June 30, 2008, filed a motion with the Circuit Court for Montgomery County, Tenn., asking that the lawsuit be dismissed.  IJ’s goals are to stop Swift and Wilkinson from using litigation to harass the CPRC and to set an example that activists fighting eminent domain abuse will not be silenced by attempts at petty censorship.

Conclusion

Swift v. Clarksville Property Rights Coalition is a case about two thin-skinned bullies who are attempting to use litigation as a club against a group of ordinary citizens who dared to speak out against their public actions on a matter of public concern.  Their intimidation tactics cannot be allowed to succeed.  All citizens have a First Amendment right to speak out against government abuse—without getting sued for their speech by the very people whose actions they are protesting.

Litigation Team

The lead attorney in this case is Institute for Justice Senior Attorney Bert Gall, who litigates First Amendment, eminent domain and school choice cases nationwide.  Bert was part of the litigation team that successfully represented home and business owners in Norwood v. Horney, in which the Ohio Supreme Court rejected the Kelo decision and held that the use of eminent domain for private development violated the Ohio Constitution.  He is also a member of the litigation team that, in SpeechNow.org v. FEC, is challenging federal campaign finance laws that unconstitutionally prevent people from associating together to express their views of political candidates.

Prior to joining the Institute, Gall was an associate in the litigation department of Helms, Mulliss and Wicker in Charlotte, N.C.  He also served as a law clerk for Judge Karen Williams of the 4th U.S. Circuit Court of Appeals.

Ably assisting the Institute for Justice as local counsel is Jerry Martin of Barrett, Johnston & Parsley, which is based in Nashville.

For More Information Contact:

Lisa Knepper
Director of Communications Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA  22203
(703) 682-9320
[email protected]