Eminent Domain Beneficiaries Sue to Silence Speech

George Will’s August 21, 2009 opinion in the Washington Post, “A Complex but Chill Wind on Free Speech,” spotlights the use of the court as a weapon by a Texas developer who benefited from an eminent domain deal – and doesn’t want anybody to know about it.

In November of 2008, Texas developer H. Walker Royall sued Carla Main, the author of a book about an eminent domain development agreement Royall had signed. But Royall did not stop at suing the author. He also named as defendants in the suit the book’s publisher, the writer of a review of the book, a newspaper that published the review, and Law Professor Richard Epstein, who wrote a short blurb about the book on the book’s dust jacket. Royall seeks monetary damages and a permanent injunction on further printing or distribution of the book.

In March 2009, the district court dismissed Professor Epstein for lack of jurisdiction. In June of 2009, the remaining defendants asked the court to dismiss the lawsuit. The Institute for Justice is defense counsel in the suit, which is actually the second suit brought by the developer in response to statements made about the development deal. In 2004, he sued the owners of two companies affected by the development deal who complained against his actions. That lawsuit settled in January of 2009, after nearly five years of litigation, under undisclosed conditions. See Royall v. Wright Gore, Jr., et. al., No. 29996 (2009); Royall v. Main, et. al., No. DC-08-13480-B (2009).

Having not read Main’s book, we don’t know if Royall’s suit has merit or not. But we do know that the lawsuit arose from speech about an issue of particular importance – the government’s power to take private property, and the potential consequences and abuses of that power. Such speech is the precisely the speech that should be encouraged, not stifled. But, there is no federal anti-SLAPP law, and, despite perennial attempts to secure it, Texas also has no anti-SLAPP law. This leaves those like Main, who speak on issues of public interest, vulnerable to meritless lawsuits designed to shut them up.

The Citizen Participation in Government & Society Act provides a uniform level of procedural protection for speech about issues of public interest. The law would allow any defendant to bring a special motion to dismiss a lawsuit that arises from protected speech or petition activity. Under the law, the plaintiff must then show that a suit arising from protected speech has a minimum level of merit. If the plaintiff fails to meet her burden, the lawsuit is dismissed, and in most cases, a defendant can recover the fees and costs incurred in defending against it.

For more examples of how SLAPPs can silence those who speak out on government abuse, see our fact sheet on the topic.

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