Appeals Court Rejects Dallas Developer’s Claim That Book About Eminent Domain Defamed Him

J. Justin Wilson
J. Justin Wilson · July 26, 2011

Dallas, Texas—In an important victory for the First Amendment, a unanimous Texas Fifth Court of Appeals has handed a major defeat to Dallas developer H. Walker Royall in his defamation lawsuit against the author and publisher of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land. In November 2009, a Dallas trial court issued a blanket denial of Carla Main and Encounter Books’ claims that the book is protected by the First Amendment, prompting the appeal.

Late yesterday, the Dallas appellate court reversed the trial court’s judgment and held that Royall failed to produce evidence that anything in Bulldozed defames him in any way. The opinion reaffirms that criticism of public projects is protected by the First Amendment, and that developers who are involved in those projects cannot hide behind defamation law to escape criticism over their role.

“Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” said Dana Berliner, senior attorney at the Institute for Justice, the nonprofit public interest law firm that is defending Main and her publisher. “The appeals court has exposed the frivolity of Royall’s lawsuit, holding that Royall failed to prove that a single word of Bulldozed defames him.”

Published in 2007, Bulldozed chronicles events in Freeport, Texas, where Royall signed a development agreement to have the city take land owned by Western Seafood—a generations-old shrimping business—and give that land to Royall’s development company for a luxury yacht marina. Royall sued the book’s author, Carla Main, and its publisher, Encounter Books, in October 2008, seeking monetary damages and a permanent prohibition on further printing or distribution of the book.

Like many works of non-fiction, Bulldozed chronicles the events in Freeport in dramatic fashion, but Royall was unable to identify a single false and defamatory statement about him in the entire book. The Court found that Royall was not defamed on any page of the book, nor by the gist of the book. It found that Main’s description of his role in the project and eminent domain was not defamatory; nor was describing the contract between Freeport and Royall as a “sweetheart deal.” The opinion also found that descriptions of the book on Main’s and Encounter’s websites and in a book review were entirely non-defamatory.

Main is a veteran journalist who was an associate editor of The National Law Journal, where she edited the opinion page and wrote a column on law and society. She wrote for The Wall Street Journal, Policy Review,

National Review, The American Lawyer and The New York Sun, among other publications. Before becoming a journalist, Main practiced as an attorney in New York City for ten years. Bulldozed was reviewed in many newspapers, including The Wall Street Journal, was considered for the Texas Historical Commission’s annual T.R. Fehrenbach Book Award and won a highly competitive independent press award for political science writing.

“This is a great day for the First Amendment and obviously, a great day in my life,” said Main. “I am deeply grateful to my outstanding lawyers at the Institute for Justice, who never wavered in their passion about this case. And I am equally proud of my editor and publisher, who have stood by me and shown unfailing kindness, loyalty and integrity. No author could ask for more.”

“In dismissing this preposterous assault on the First Amendment, the Court has affirmed the sacrosanct principle that a free society requires a free press,” said Roger Kimball, publisher of Encounter Books. “This decision is thus important not only for the several defendants, it is equally important for anyone who believes that free speech is the prerogative of all citizens, not just the wealthy and well connected.”

Royall’s lawsuit is part of a national trend of developers and government officials using defamation lawsuits to silence their opponents. Similar suits have been filed in Tennessee, Missouri, Washington and elsewhere by developers and government officials looking to silence critics of eminent domain for private gain. Earlier, when the Gore family—owners of Western Seafood and the original victims of Royall’s eminent domain abuse effort in Freeport—complained against Royall’s actions, he sued them for defamation. In the present lawsuit, Royall has also sued the Galveston newspaper that reviewed the book, along with the book reviewer. Law Professor Richard Epstein, whom Royall also sued, was dismissed from the lawsuit in March 2009.

“Books that criticize the government are the very essence of protected speech,” said Matt Miller, executive director of the Institute for Justice Texas Chapter. “This decision upholds the right of everyone to discuss and criticize public projects, and the people—like Royall— who are involved with them.”

The ruling also establishes that book publishers are entitled to speedy access to appellate courts when their First Amendment claims are rejected by a trial court. Royall tried to argue that book publishers are not members of the “print media” under the relevant statute, an argument the appeals court squarely rejected.

Since Royall filed his suit in 2008, the Texas legislature has enacted additional safeguards to protect people who speak about public affairs. This past session, Texas passed a law (known as “anti-SLAPP” which stands for “strategic lawsuits against public participation”) that allows defamation defendants to quickly get rid of suits, like Royall’s, that are brought to silence critics of public projects. Defendants can also recover attorney’s fees and costs when the suit is dismissed. That law becomes effective September 1. Main’s testimony helped pass the anti-SLAPP law after she testified about her experience during the past legislative session.

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