Texas Eminent Domain Censorship

Royall v. Main
Vindicating the Right to Protest Eminent Domain Abuse:
Journalist, Prominent Law Professor Fight Frivolous Lawsuit.

Dallas developer H. Walker Royall has sued journalist Carla Main, pictured, Prof. Richard Epstein and Encounter Books (the publisher) for defamation over the contents of Bulldozed.


In perhaps the most striking example of a disturbing national trend, Dallas developer H. Walker Royall sued to silence anyone who dared to criticize his abuse of eminent domain. Similar suits have been filed in Tennessee, Missouri and elsewhere by developers and governments looking to silence critics of eminent domain for private gain.

When the victims of his eminent domain abuse in Freeport, Texas, complained, Royall sued them for defamation. When an investigative journalist wrote a book exposing the project, he sued her, as well as her publisher, for defamation. He even sued a prominent law professor who wrote a blurb for the book’s dust jacket. When someone reviewed the book, he sued him. When a newspaper ran that review, he sued the newspaper. Royall sought monetary damages and a permanent prohibition on further printing or distribution of the book.

The city of Freeport tried to force out a generations-old family shrimp and marine supply business to make way for a luxury marina development that was to be owned and operated by Royall’s private company. The shrimp and marine supply businesses are owned by the Gore family, which did not want to move or to shut down their business.

Journalist Carla Main wrote a book about what happened in Freeport. Her book, Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land tells the story of the Gores and how Royall and the city tried to force the family out of its business. Prominent law professor Richard Epstein (University of Chicago and New York University) contributed a blurb to the back cover of Bulldozed.

Royall sued Main, Epstein and Encounter Books (the publisher) for defamation over the contents of Bulldozed. He also sued two newspaper companies and a journalist who published a review of Bulldozed.

Eminent domain abuse is a matter of public concern—that’s why journalists like Carla Main write books about it. That’s why the First Amendment protects the right of people to engage in a vigorous and, at times, heated public debate about important issues. The American public is outraged by eminent domain abuse. The Freeport case was part of the reason Texas became the second state to reform its eminent domain laws after the infamous Kelo v. New London eminent domain case was decided by the U.S. Supreme Court. The First Amendment protects every American’s right to speak out against cities and developers who abuse eminent domain by taking private property from one person only to hand it over to another private party in the name of economic development.

To vindicate that right to free speech and to stop developers like Royall from using defamation lawsuits to intimidate their critics, the Institute for Justice Texas Chapter (IJ-TX) defended Main, Encounter, and Epstein against Royall’s lawsuit

In an important victory for the First Amendment, a unanimous Texas Fifth Court of Appeals handed a major defeat to Royall. On July 25, 2011, 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.

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.

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.

 

Essential Background

Images

Backgrounder: Dangerous Trend: Bulldozing Free Speech; Texas Developer Seeks to Silence the Press through Lawsuits

Client Photos

Client Video - none available

Latest Release: Appeals Court Rejects Dallas Developer’s Claim That Book About Eminent Domain Defamed Him (July 26, 2011)

Legal Briefs and Decisions

Download: Order Dismissing Epstein

Launch Release: Texas Developer Files Lawsuits To Bulldoze Freedom of the Press (December 10, 2008) Download: Opinion

 

Case Timeline

Lawsuit Filed:

 

October 23, 2008

IJ Filed Notice of Appearance:

December 10, 2008

Court Filed:

 

Dallas County District Court

Decision(s):

 

Defendant Richard Epstein dismissed for lack of personal jurisdiction

Defendants' motion for summary judgment denied.

Current Court:

 

Dallas Court of Appeals

Status:

 

Complete: Victory at Dallas Court of Appeals

Next Key Date:

 

Release of appeals court decision (date unknown)

Additional Releases

Maps, Charts and Facts

Release: Texas Legislature Passes Free Speech Legislation Targeting Frivolous Defamation Lawsuits (May 19, 2011)

none available

Release: Journalist’s Story Demonstrates Need For Texas Law Protecting Citizen Speech (March 28, 2011) Op-eds, News Articles and Links
Article: The Litigious Legacy of Kelo WSJ, (September 28, 2010)
Release: Texas Appeals Court Considers Proposed Book Ban (September 22, 2010) Article: Prof. Richard Epstein Dismissed from Book-Blurb Libel Case, on Jurisdictional Grounds, The Volokh Conspiracy, (March 3, 2009)
Release: Author and Publisher Ask Court to Dismiss Eminent Domain Defamation Lawsuit (June 5, 2009) Article: Bulldozed: Texas Developer Seeks to Bulldoze Property Rights & Free Speech; Liberty & Law (February 2009)
Release: Judge Dismisses Law Professor Richard Epstein From Defamation Lawsuit Over Book Blurb (March 3, 2009) Article: Critics slam Dallas developer's libel lawsuit, First Amendment Center, (February 15, 2009)
Article: Develop This!, Wall Street Journal, (February 13, 2009)

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