Journalist’s Story Demonstrates Need For Texas Law Protecting Citizen Speech

John Kramer
John Kramer · March 28, 2011

Austin, Texas—The Texas Legislature is considering legislation that would protect citizens and journalists from frivolous defamation lawsuits. On Monday, March 28, at 2 p.m., the Texas House Judiciary and Civil Jurisprudence Committee will consider H.B. 2973, introduced by Rep. Todd Hunter (R-Corpus Christi), known as the Citizen Participation Act.

PH.B. 2973 (and its Senate counterpart S.B. 1565) would allow defamation defendants to file a motion to dismiss within 60 days of the filing lawsuit’s filing, thus limiting costs and fees. The court must then dismiss the suit immediately if a preponderance of the evidence shows that the suit was filed to in response to an exercise of free speech, the right of free association, or the right to petition the government. Significantly, SLAPP target would recover attorney’s fees and court costs if the suit is ultimately dismissed. Some form of anti-SLAPP legislation has been adopted by 27 states across the country.

Journalist Carla Main, who has practiced her craft at the highest level, has been invited to testify at the hearing after she was sued for defamation by Dallas developer Walker Royall over her book, “Bulldozed: Kelo, Eminent Domain, and the American Lust for Land,” which chronicles eminent domain abuse in Freeport, Texas. Royall was the lead developer on the project.

Such lawsuits are commonly known as “SLAPP” suits, which stands for “strategic lawsuits against public participation.” SLAPP suits target individuals exercising their First Amendment right to petition the government or write a book or news article involving a matter of public concern. The mere threat of hundreds of thousands of dollars in legal fees—which can be incurred defending even the most frivolous of defamation suits—is often enough to silence citizens who have been speaking out in opposition to a project. That makes these lawsuits attractive to developers who don’t like public criticism.

Royall’s lawsuit against Main is currently awaiting a decision from the Dallas court of appeals. The appeal has been pending since September 2010. Royall’s lawsuit against Main and her publisher, Encounter Books, has been winding through the Texas courts for two-and-a-half years.

“Like many citizens and many journalists, Carla Main had serious concerns about what she saw transpiring in Freeport and so she decided to inform the public through her book about what was taking place,” said Matt Miller, executive director of the Institute for Justice Texas Chapter and Main’s lead attorney on the case. “She wrote a book about that abuse of eminent domain and Walker Royall sued her for it. An author’s speech goes to the very heart of the First Amendment and is entitled to the utmost protection. Unfortunately, it has historically been difficult to get rid of even the most frivolous defamation case in Texas. That’s why the Citizen Participation Act is so important.”

“I wanted to come back to Texas and support this bill because I have felt—and am still feeling—the effects of a baseless defamation lawsuit filed by someone involved in a project that I wrote about,” said Main, who is coming from her home in New Jersey to testify. “I didn’t do anything but tell the truth and express my opinion about the deal between Walker Royall and the city of Freeport. Every citizen and journalist has a First Amendment right to criticize these kinds of projects.”

“The proposed Texas law is quite robust,” said Miller. “It would help make Texas a bastion of free speech for citizens and journalists—rather than a destination for defamation plaintiffs shopping for an attractive forum.”

“Because of the nature of litigation in the United States, the power to sue can mean the power to destroy, which means those with money can silence those without it,” added Main. “This legislation will help to protect people who want to speak truth to power, which is an essential element of life in a constitutional democracy. Journalists and citizens should not be silenced for the sake of the vanity and ego of those they write about.”



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