Vindicating the Right to Protest Eminent Domain Abuse

October 1, 2008

In the wake of the U.S. Supreme Court’s infamous Kelo v. City of New London decision, which held that local governments may take a person’s property for private development, home and business owners nationwide have relied on grassroots activism to defeat eminent domain abuse.

Grasssroots activism is political speech, and, like all political speech, rests on the First Amendment.

In Clarksville, Tenn., two men—Richard Swift, a member of the Clarksville city council, and Wayne Wilkinson, a member of Clarksville’s Downtown District Partnership—are staging a direct assault on the right of free speech. When the city council considered a redevelopment plan that allowed the use of eminent domain for private development, a group of home and business owners formed the Clarksville Property Rights Coalition (CPRC). The group took out an advertisement in a local newspaper stating “[t]his Redevelopment Plan is of the developers, by the developers, and for the developers.” It identified Swift and Wilkinson as developers who own property in the redevelopment area, and stated that “[o]ur City government is controlled by developers.”

No sooner had the ad speaking out against the project appeared than Swift and Wilkinson filed a frivolous libel lawsuit against the property owners and demanded the group pay them $500,000.

Political criticism like that which appeared in this ad occurs every day in America—and, indeed, has been a mainstay of debate on public issues since our nation’s founding. No doubt every politician and developer involved in controversial redevelopment projects wishes he could silence his critics. But most recognize that it is wrong to try to silence opposition through retaliatory litigation. Some, however, like Swift and Wilkinson, employ litigation as a tool of intimidation. Unable to make their case in the court of public opinion, they drag their critics into court because defending even the most frivolous lawsuit takes lots of time, money and energy. Thus, even though such lawsuits typically fail in court, they often succeed in wearing down and silencing opponents.

To prevent that from happening to the CPRC, the Institute for Justice is defending the group from Swift and Wilkinson’s frivolous lawsuit. In doing so, IJ intends to stop a dangerous and emerging national trend of such lawsuits filed by politicians and developers against opponents of eminent domain for private gain. If politicians could sue anyone who criticized them, everyone in America would need a lawyer. But under the First Amendment, you do not need a lawyer to speak out about public policy, and IJ intends to keep it that way.

The CPRC’s members understand that 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. As CPRC member Debbie Hunt put it, “Politicians and developers have to learn that they cannot bully us and other activists into submission by filing frivolous lawsuits. We’re fighting not just for us, but for home and business owners everywhere who find themselves in a similar situation.”
Bert Gall is an Institute senior attorney.

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