IJ Scores Texas-Sized Victory for Free Speech

October 11, 2011

By Matt Miller

IJ has a lot to say about eminent domain abuse. We write about it; we publish reports about it; we comment on specific plans to take people’s homes for private projects. Through the activism work of the Castle Coalition, we encourage others to write and protest against the use of eminent domain for private profit.

One Castle Coalition-trained activist, Wright Gore III, had an incredible story and, later, incredible success in defeating one such project. Working with IJ, he also helped to change eminent domain laws in Texas.

Wright’s story was so engaging that author and journalist Carla Main wrote a book about it—Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land. Published in 2007, Bulldozed chronicles events in Freeport, Texas, where developer H. Walker Royall signed a development agreement to have the city take land owned by Western Seafood, the Gore family’s generations-old shrimping business, and give that land to Royall’s development company for a luxury yacht marina.

The book was published by Encounter Books, and Main asked renowned law professor Richard Epstein to contribute a blurb for the back cover. And then Royall, the developer, sued them all for, among other things, calling the situation an example of “eminent domain abuse.”

To make sure that everyone nationwide could call out eminent domain abuse when they saw it, we knew we had to represent Main, Encounter and Epstein. It took a grueling three-year journey through the Texas legal system, but the case is finally almost over. In July, a Texas appeals court ruled that Royall failed to prove that one single page of Bulldozed defamed him. Royall argued that journalists who write about eminent domain abuse defame developers who are involved with those projects. He also argued that someone who willingly does business with the government—in this case to take private property and use it to build a yacht marina—is not a “public figure” when someone criticizes him for those dealings.

Royall didn’t just take issue with particular passages in Bulldozed; he took issue with the entire book. His lawsuit alleged that 91 statements, Prof. Epstein’s blurb and the “gist” of the book defamed him. The sheer volume, complexity and bizarre nature of Royall’s claims made for challenging briefing at the appeals court. We had to painstakingly go through each of the 91 statements and debunk Royall’s claim that he was defamed by it.

After oral argument, we were optimistic that this strategy would pay off. The presiding judge at argument—who eventually wrote the unanimous opinion—engaged IJ Senior Attorney Dana Berliner in great detail. More importantly, the judge engaged opposing counsel, who struggled to explain why his client’s claims were anything more than a smorgasbord of weak attempts to make Main’s book seem defamatory when it clearly was not.

In the end, our strategy worked. The court wrote an opinion that—like our brief—is highly technical. It found that Royall failed to introduce evidence that a single word of Bulldozed is capable of defaming him. The court also correctly rejected Royall’s claims that the First Amendment does not protect Bulldozed. Indeed, criticism of government projects and people—and companies that stand to benefit from them—is exactly the kind of speech the First Amendment is meant to protect. This seems obvious, but the road to this appellate victory was a long one.

So Carla and Encounter Books are nearly at the end of their involuntary journey through the Texas court system. (There is still some procedural work to complete back in the trial court.) Their victory will serve as a deterrent to others who would use frivolous defamation lawsuits to silence their critics. It reaffirms the enduring strength and importance of the First Amendment for anyone who dares to criticize powerful interests. And it means that when you see eminent domain abuse, you can feel free to say so.

Matt Miller is the IJ Texas Chapter executive director.

Also in this issue

Judicial Engagement Catching on in Courts Across the Nation

“My Streets! My Eats!” Campaign Champions Chicago’s Mobile Food Vendors

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