More on Texas developer’s attempt to Bulldoze free speech concerning eminent domain abuse

Yesterday, the Fifth District Court of Appeals in Dallas, Texas heard oral argument in the defamation suit brought by developer H. Walker Royall against author Carla Main and the non-profit publisher, Encounter For Culture and Education, Inc. (“Encounter Books”), for writing and publishing the book Bulldozed: “Kelo,” Eminent Domain and the American Lust for Land. Dana Berliner, Institute for Justice Senior Attorney, argued on behalf of Main and Encounter Books in support of their first amendment rights to freedom of speech and in opposition to developer H. Walk Royall’s request for monetary damages and that the Court prohibit further printing or distribution of the book. (Disclosure: Dana Berliner, IJ Senior Attorney, is a Member of the Owners’ Counsel of America.)

While we could not be in the Dallas courtroom to observe the oral arguments for both sides yesterday, reporters for the Dallas Observer had front row seats. In his post yesterday, reporter Patrick Michels, recounts the arguments for both sides. In her arguments before the tree-judge panel, Ms. Berliner, stated that the developer may disagree with the book, but “the gist of Bulldozed is political and social criticism” and such criticism is a form of speech protected under the First Amendment. Ms. Berliner argued that neither the developer nor his attorneys have proven that the facts set forth in the book are untrue. Royall does not dispute the facts at all, rather, “what Mr. Royall really disagrees with are Ms. Main’s conclusions from these uncontested facts.”

Royall’s lawyer, Patrick Zummo, focused on the jurisdictional argument of whether a book qualifies as “print media.” Michels writes in his blog post: “Zummo said it’s enough for the court to decide if the gist of the book is defamatory: ‘Because the book is about him, it was clear that the statements about the controversy in Freeport concern Walker Royall.'” Mr. Zummo responded to Defendants Main & Encounter’s argument that Royall as a developer working with the City of Freeport on a controversial project is a “limited-purpose public figure” by point out that at the time he signed the development agreement with the public entity there was no publicity about him.

From our position, Ms. Berliner lays out the case rather clearly in the written arguments submitted to the appeals court. Specifically, in Main & Encounter’s “Appellants Reply Brief,” she writes:

Notwithstanding Royall’s numerous allegations, the situation facing this Court is simple: Appellants published a book about a controversial redevelopment project in which Royall had a leading role. Royall filed a lawsuit claiming that Appellants’ political opinions defamed him, but steadfastly has refused to demonstrate how anything Appellants published meets the legal definition of defamation, instead showing that he disagrees with Appellants’ political speech and that his feelings were hurt by their comments. But the courts do not exist to protect hurt feelings, and they certainly do not exist to allow participants in controversial public projects to squelch critical political speech.
Appellants’ Reply Brief, pp. 1-2.

Links to the written arguments submitted by both sides follow below.

05-09-01503-CV (Main v. Royall) Appellants’ Reply Brief

H. Walker Royall’s Response

Main v. Royall Second Amended Brief

While Bulldozed focused upon the struggle of one family to save its private property and business from an economic development taking in Freeport, Texas, it also discussed other infamous cases of eminent domain abuse in our recent history, Kelo included. Beyond the obvious connections between the two stories of Susette Kelo and the Gore Family of Freeport, there is another interesting similarity. The planned marina project in Freeport for which the City wished to take the Gore’s private property has not brought the economic development, prosperity, new business and new jobs that was promised by the City leaders who entered into the deal with Royall 7 years ago. Unlike New London where the Fort Trumbull neighborhood remains a barren wasteland of weeds years after the homes were razed, some progress has been made in Freeport. But, as the video below shows, the progress has been slow and results not nearly as prosperous as originally suggested.

Houston, TX-based Channel 2 Investigative Reporter Robert Arnold looks into the City of Freeport’s unsuccessful attempts to build a marina with taxpayer dollars for the benefit of Dallas real estate investor H. Walker Royall. Originally aired July 12, 2010 as a follow up to previous segments related to this project.

For more on yesterday’s oral arguments and background on this story see these additional resources:

• Tomorrow, Attorneys to Square Off Over Eminent Domain Book That Got Everyone Sued Dallas Observer Blog (9/27/2010)

• The Litigious Legacy of Kelo, The Wall Street Journal (9/28/2010)

• Bulldozing Free Speech on Eminent Domain Abuse (9/28/2010)

• 5th Court of Appeals to hear arguments in defamation suit over book, Tex Parte Blog of Texas Lawyer Magazine (9/28/2010)

UPDATE: More about this case is also available at the following links:

• Texas Appeals Court Hears Landmark Defamation Case, Publishers Weekly (9/29/10)
• Are Books Media or Is There no Freedom of Speech, National Eminent Domain Blog (10/4/10)
• Lawsuits that kill books, Salon.com (10/6/10)

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