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IJ Stops Developer from Bulldozing Author’s Free Speech

A flurry of urgent calls and emails soon followed.  Somewhere in the mix, a friend contacted IJ Senior Attorney Dana Berliner and told her what happened.  I will never forget the relief I later felt when Dana told me that IJ would represent Prof. Epstein, Encounter and me in the case.  The situation—and my stress level—went from Code Red down to Code Yellow in an instant.

As a journalist I had followed Dana’s career and had immense respect for her, but I didn’t know her well personally.  I would soon learn that I always felt better after talking to her, and not only because she is compassionate and brilliant (though I was glad of that!).  I found her comforting because I knew she cared deeply about the case and the First Amendment principles at stake.

So began a three-year litigation slugfest during which IJ represented me in Texas courtrooms, a court-ordered mediation, discovery, motions and an appeal.

Does it make a difference that IJ represented me, instead of other lawyers?

Yes.

My IJ lawyers were propelled by the idea of personal liberty and constitutional principles.  That informed how they approached the case, educated the public and kept me involved.

IJ asked me to be there—literally.  They flew me from my home in New Jersey out to Dallas to attend court hearings.  I got dressed up and sat in the courtroom gallery, bracing myself, expecting to see the guy who sued me walk in the door since he lived in that city.  Funny thing was, he didn’t show.  Who’s a chicken now, I wondered?

IJ involved the press and brought in friend-of-the-court briefs on the appeal.  They showed me the case was about something bigger than just me or my book:  It was about the freedom to criticize government and write about public policy.  And when I read those briefs and the op-eds about my case, I understood we had allies who cared about the Constitution and the rights of other writers who would come in the years after me, and that gave me courage.

IJ always made the suit about Bulldozed and the First Amendment, and never about things like litigation budgets or cost-containing settlements that drive so many cases among private law firms.  This meant I would not have to enter into a settlement that could have cast a shadow over my name.

IJ has esprit de corps—and boy, did I need that.  IJ attorneys Dana, Matt Miller and Wesley Hottot, and IJ VP for Communications John Kramer, through the ups and downs of the case, maintained their sunny dispositions and unshakable optimism.  To my amazement, it started rubbing off on me.

After years of fighting, IJ won the case.  In a 28-page decision, the court said in meticulous detail that I did not defame the plaintiff.  Bulldozed—all 300 pages of it—contained nothing defamatory.  The case was dismissed in September 2011.

While much has been said about the Bulldozed case, a silent moment in Dallas said it all for me.  In 2009, I met Dana and Wesley in a hotel lobby as they were preparing for a court appearance.  Wesley had a big box of documents strapped to a small, wheeled dolly.  As we stood there, I watched Wesley thumb through the thick row of briefs and exhibits, making sure he and Dana had everything they needed.  Those papers, I knew, were the product of long hours of research, writing and consideration, and all that work was funded by good people who believed in liberty, the First Amendment and standing up to bullies.  At that moment, as we stood in a little circle around the dolly, I knew that everything was going to be all right.  Nothing the plaintiff could throw at us could be stronger than what that plain, paper-stuffed box represented:  intellect, conviction, friendship, community and fierce devotion to the Constitution.

Carla T. Main was an Institute for Justice client.

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