Right to Protest Eminent Domain Abuse Vindicated in Tennessee

June 22, 2009

The right to protest eminent domain abuse is alive and well in Tennessee.

That is the result of one of our recent First Amendment victories. In a decision issued in March 2009, Judge C.L. “Buck” Rogers of the Circuit Court for Sumner County, Tenn., dismissed the defamation lawsuit brought by Richard Swift, a developer who is a former member of the Clarksville City Council, and Wayne Wilkinson, another developer, against the Clarksville Property Rights Coalition (CPRC).

The CPRC is a group of home and business owners who came together to protest Clarksville’s controversial redevelopment plan, which authorizes the use of eminent domain for private development. Swift and Wilkinson sued the group for defamation because it criticized them for using their political clout to advance a plan that served their self-interests. Specifically, the CPRC noted in a newspaper ad that both Swift and Wilkinson are developers and said, “This Redevelopment Plan is of the developers, by the developers, and for the developers.”

Just six days after the ad ran, Swift and Wilkinson filed their lawsuit, in which they asked the court for “damages” in the amount of $1 million. Their defamation claim was clearly frivolous: Examples of defamation include accusing, without evidence, someone of committing a murder or having an affair—not engaging in criticism of individuals’ public political activities. But even though it was meritless, the lawsuit would have drained the CPRC members’ limited resources by forcing them to hire a lawyer and spend tens of thousands of dollars in legal fees. We immediately recognized the lawsuit for what it was: an attempt to silence the redevelopment plan’s opponents through frivolous, retaliatory and costly litigation rather than respond to legitimate—and constitutionally protected—criticism in public debate. To protect the CPRC’s First Amendment right to protest eminent domain abuse, IJ quickly stepped in to defend the CPRC and filed a motion to dismiss the case.

Judge Rogers granted our motion and tossed the case out of court. He noted, “[d]ebate on public issues shall be uninhibited [and] wide open . . .,” and then ruled that “[a]ccusing a public official or public figure of using their political influence to obtain a benefit for others or themselves or favoring their supporters is not defamation.”

The court’s decision dismissing the lawsuit is significant for several reasons. First, it removed the chilling effect that the lawsuit had on the CPRC’s speech. No longer does the threat of a million-dollar judgment lurk in the background each and every day for our clients.

Second, in the wake of the infamous Kelo decision, which gutted the protection that the Fifth Amendment’s “Public Use” clause was intended to give to home and business owners, grassroots activism against eminent domain abuse has become property owners’ best defense against that abuse. Much of that activism has been successful. However, politicians and developers who abuse eminent domain have reacted by filing frivolous defamation lawsuits—in places like Clarksville; Renton, Wash.; and Freeport, Texas—to suppress the speech of citizens who oppose the abuse of eminent domain. The outcome of this case—dismissal at the earliest possible stage of the litigation—makes this intimidation tactic much less attractive.

Third, the decision sets forth an important rule of law that other home and business owners in Tennessee and the rest of the country can use as a defense to frivolous defamation lawsuits: Criticizing the abusers of eminent domain for acting in their self-interest is not defamation, and politicians and developers who claim otherwise should have their lawsuits immediately dismissed. This rule of law is already helping others, as we are invoking it in our battle to defeat a similar lawsuit filed by Dallas developer Walker Royall against Carla Main and Roger Kimball, the author and publisher, respectively, of Bulldozed, a book that criticized Royall for abusing eminent domain in Freeport. (For more on that case, see the cover story of our February issue of Liberty & Law.)

The U.S. Supreme Court has long recognized that, under the First Amendment, “[o]ne of the prerogatives of American citizenship is to criticize public men and measures.” Just as we did in Clarksville, we will continue to protect this prerogative. After all, it gains increased importance for home and business owners when the public men are politicians and developers, and the public measure is a law authorizing the abuse of eminent domain.

Bert Gall is an Institute senior attorney.

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