Hours after Kelo v. City of New London was decided in June 2005, the city of Freeport, Texas, instructed its attorneys to redouble their efforts to use eminent domain for private redevelopment. The Gore family did not want to sell their land to the city for a private marina project, so Freeport attempted to take it by eminent domain. Developer H. Walker Royall would have been one of the primary beneficiaries of the city’s plot to abuse eminent domain. When the Gores started complaining publicly about the city’s attempt to take their land—and Royall’s involvement—Royall sued them for defamation.
Carla Main, a journalist and author, wrote Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, a book about the Gore family and what happened to them in Freeport. Encounter Books published Bulldozed in 2007. University of Chicago Law School Professor Richard Epstein provided a blurb for the book. Royall has now sued Main, Encounter and Professor Epstein for defamation. He has also sued a journalist who reviewed Bulldozed and the newspaper that published the review.
The Institute for Justice Texas Chapter (IJ-TX) is defending Main, Encounter and Professor Epstein in the lawsuit. Suing critics of eminent domain abuse for defamation has become an increasingly common tactic of developers and local government officials who dislike public scrutiny of their activities. This is not the first time IJ has leapt to the defense of those who speak out about eminent domain abuse and find themselves in a legal bind.
In Clarksville, Tenn., IJ is defending a community group that was sued for speaking out by two developers—one a city councilman—who would benefit from a redevelopment plan involving eminent domain abuse. IJ has also come to the aid of individuals in similar scrapes in Missouri and Washington.
The First Amendment protects people’s right to speak passionately about issues of public concern—issues like eminent domain abuse. Kelo incited a nationwide backlash against eminent domain abuse, causing 43 state legislatures to amend their laws to protect property owners. “Kelo” has become a household term, and grassroots groups have successfully beaten back projects across the country by making their voices heard.
Journalists like Carla Main play a critical role in shining light on abuse and helping victims fight for their property rights. They should not live in fear of frivolous defamation lawsuits for doing nothing more than chronicling abuse wherever they discover it.
“I find the lawsuit deeply troubling because I take it as an assault on intellectual life,” said Main.
Her publisher, Encounter Books, is part of Encounter for Culture and Education, a tax-exempt, nonprofit organization. Encounter’s president and publisher, Roger Kimball, said, “The First Amendment is very much at stake in this case. So is the issue of public education.”
Professor Richard Epstein needs little introduction to readers of Liberty & Law. An esteemed law professor at the University of Chicago and New York University and author of 14 books, including Takings: Private Property and Eminent Domain, he has long been a friend and source of inspiration to those who are confronted with eminent domain abuse.
“There are few times in my professional career when I’ve been flabbergasted and this is definitely one of them,” he said. “The idea that I can be sued for writing a sympathetic and accurate blurb is really surprising to me.”
IJ-TX will defend the First Amendment rights of Main, Encounter and Professor Epstein to continue chronicling and criticizing eminent domain abuse. When developers work with cities to take other people’s land for private development projects, they should expect to have that involvement made public by journalists and others. As U.S. Supreme Court Justice Hugo Black once said, “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.”