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Trying to Bulldoze Free Speech

Trying to Bulldoze Free Speech

By Carla Main and Roger Kimball - January 28, 2009

In the late 18th century, Edmund Burke referred to the newspaper reporters seated in the press gallery of the House of Commons as the "Fourth Estate." It was a remarkable acknowledgment of the importance of the press in a society still bound by the feudal orders of clergy, nobles and peasantry.

Journalists have been scribbling away in press galleries ever since, fulfilling their primary role of informing public debate and broadcasting evidence of government incursions upon liberty and the commonweal. Without a nobility, they've seldom had reason to fear direct interference from the rich and powerful. Until now, that is.

Late last year, we--publisher and author--were named in a defamation suit brought in a state court in Dallas by H. Walker Royall. Royall is a wealthy man who, having volunteered to be the developer in a municipal construction project that involved eminent domain, does not care to have his actions scrutinized by the Fourth Estate.

Royall is one of many people who figure in the book, Bulldozed: "Kelo," Eminent Domain and the American Lust for Land, published by Encounter Books in October 2007. In addition to us, he is suing the University of Chicago's eminent legal scholar Richard Epstein, who endorsed the book with an admiring cover blurb, a freelance writer who reviewed Bulldozed favorably, and the owner of the Galveston County Daily News, the local Texas newspaper that published the review.

Eminent domain--the taking of private property by the state for public use--has always been a contentious subject. It was recently thrust into the spotlight in the aftermath of Kelo v. New London, when the Supreme Court ruled, 5-4, that the Constitution allows the government to take private property from one person to give to another private person when doing so may improve the local economy, raise tax revenue, or have some other hypothetical public "benefit."

This sent a shiver down the collective spine of the republic. If raising tax revenue could justify the application of eminent domain, whose property was safe? And who was likely to benefit from this new partnership of state power and private initiative? As Justice Sandra Day O'Connor noted in her Kelo dissent, "beneficiaries [of the decision] are likely to be those citizens with disproportionate influence and power in the political process."

Bulldozed explores an economic development "taking" in the small city of Freeport, Texas. It follows the struggle of a family named Gore to save the shrimp processing business founded by their grandfather from being destroyed. A plan to build a commercial marina in Freeport would seize critical waterfront property from the Gores, making it impossible for their business to survive.

By deciding to fight, the Gores embarked on a years-long odyssey that cost them nearly half a million dollars in legal fees and took them to federal court, state court, the state legislature in Austin, and finally to the streets of Freeport in a grassroots effort to organize citizen ballots to stop the marina from being built. When they set up a website that talked about Royall, he sued them for libel. In fighting all of these battles, they experienced the slow-moving, complex mechanism of the American judicial system.

In chronicling their story, Bulldozed looks at how the marina plan developed. Though Royall declined to be interviewed, much of the story is a matter of public record.

A significant chunk of land along the river was owned by Royall's family; it happened to be next door to the Gores' land. The Royall family was approached by the head of Freeport's economic development corporation. Would Royall develop the marina? He would.

The project was never put up for competitive bidding. The city did not consider taking Royall's family property in eminent domain. At a hearing in federal district court in Galveston, Texas in April, 2004, a lawyer for the City of Freeport told the judge he was concerned about too much time passing. "[T]his particular developer is important to us," he told the judge. "If he's not part of the deal, we'll be out trying to condemn his property to make the deal go." The judge said, "I'm sure Mr. Gore's response would be, 'What's good for the goose is good for the gander.' Under the terms of the deal, if the marina were successful, all of the private commercial marina property would be owned and controlled by Mr. Royall's development partnership--including his family land.

Beyond telling the Gores' story, Bulldozed also steps back to relate the history of eminent domain in the United States, from the Founding Founders to Kelo. The book was widely reviewed. It won an independent press award for political science writing. The Texas Historical Commission placed it in its collection. Teachers started using it in classrooms.

The legal battle between Royall and the Gores recently settled with no details being released to the public. The marina, six years in the making, is still not complete; cost overruns threaten to make it far more expensive than originally promised. This is often how things turn out in eminent domain cases when government goes into the development business--just as Bulldozed examined. According to a local Freeport news report, Royall has now accused the head of the Freeport Economic Development Corporation of defaming him during an open meeting with citizens at which cost overruns were discussed. One can only wonder who will be next.

As we see it, Royall's case against us is not an ordinary libel suit. It is a suit aimed at suppressing the process of investigative journalism and the free circulation of ideas. In his complaint, Royall does not identify a single word of Bulldozed that libels him. He says only that "the gist" of the book defames him.

The concern Justice O'Connor voiced in her Kelo dissent is taking a twist she may not have anticipated. What happens if those with disproportionate power and influence come to use it not only to engage in economic development takings, but also to silence those who question how they wield that power? In two other cases--one in Clarksville, Tenn., and one in Renton, Wash.--real estate developers and even public officials have sued citizens for libel when they protested eminent domain actions in their communities.

Royall has picked on the most vulnerable people he could find--writers, a scholar, a nonprofit publisher and a community newspaper. He didn't sue more powerful venues, such as The Wall Street Journal, which favorably reviewed "Bulldozed," or the Cato Institute's Regulation magazine, which have the resources and the lawyers to defend themselves.

In the schoolyard, someone who acts like Royall is called a bully. We are grateful for friends, including the public interest advocacy organization the Institute for Justice, who have rallied to our side to represent us. In this latest misadventure unleashed by Kelo, what is at stake are not only property rights, but intellectual freedom and the First Amendment. It's a battle worth fighting.

Carla Main is the author of "Bulldozed." Roger Kimball is the president and publisher of Encounter Books.

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