Sept 27 – Oct 3, 2010 Edition Texas Appeals Court Considers Proposed Book Ban

Dallas, Texas—On Tuesday, September 28, 2010, the author and publisher of the book Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land will ask a Texas appeals court to dismiss the defamation lawsuit filed against them by Dallas developer H. Walker Royall, a suit which seeks to ban further printing or distribution of the book and has sought to shut down publicity surrounding the work. The argument will be held at 11 a.m. (Central Time) in Dallas before a three-judge panel of the state Court of Appeals for the Fifth District of Texas, which is located at the George L. Allen, Sr. Courts Building at 600 Commerce Street, Suite 200, in Dallas.

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. Despite Royall’s inability to identify a single false and defamatory statement about him in the work, 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. When asked by Main and Encounter to identify specific passages in Bulldozed that defame him, Royall could point only to Main’s criticism of his involvement in the Freeport marina project and other random statements that fall far short of the legal standard of defamation.

In November 2009, a Dallas trial court issued a blanket denial of Main and Encounter’s claims that the book is protected by the First Amendment. The court also left in play whether Royall could recover damages.

Royall’s lawsuit is part of a national trend by real estate developers and the government officials they work with to use defamation lawsuits as a means silence their opponents. Similar suits have been filed in Tennessee, Missouri and Washington 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 published a review of the book, as well as the review’s author. Law Professor Richard Epstein, whom Royall also sued for merely writing a back-cover book blurb for Bulldozed, was dismissed from the lawsuit in March.

Main, Encounter Books and Epstein have all been represented in this lawsuit by the Virginia-based Institute for Justice, a public interest law firm that, among other issues, defends free speech and property rights.

“Protection for discussion about major public projects is a core First Amendment right,” said Matt Miller, executive director of the Institute for Justice’s Texas Chapter. “Mr. Royall agreed to have the city of Freeport take his neighbors’ land and give it to him so that he could build a luxury yacht marina. Carla Main enjoys the same right all Americans enjoy under the First Amendment to chronicle and condemn Mr. Royall’s behavior. We asked Mr. Royall to tell us how, exactly, Bulldozed defames him and he came up completely empty-handed. Carla wrote a fair, accurate and hard-hitting exposé of the events in Freeport and did not defame Mr. Royall.”

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.

“The book was a labor of love,” said Main. “I researched it meticulously and gave Mr. Royall multiple opportunities to be interviewed. His primary complaint about the book seems to be that I described him as participating in an economic development taking, which he did.”

“Eminent domain for private development is the subject of nationwide public debate,” said Institute for Justice Senior Attorney Dana Berliner, who was co-counsel in the Kelo v. New London Supreme Court case, which is addressed at length in Bulldozed. “If Walker Royall doesn’t want anyone to talk about him or his development deals, he shouldn’t enter into deals that involve a city condemning his neighbors’ property. Today we are asking the court of appeals to put an end to Mr. Royall’s lawsuit spree.”

If successful, the motion filed today will result in a complete dismissal of the lawsuit against Main and her publisher.

Founded in 1991, the Virginia-based Institute for Justice fought the landmark legal battle to protect property rights in the U.S. Supreme Court, arguing Kelo v. City of New London in 2005. The Institute has successfully defended eminent domain abuse activists sued for speaking out in St. Louis, Mo., and Clarksville, Tenn.