Critics slam Dallas developer’s libel lawsuit

Monday, December 15, 2008

When public figures are criticized in the press or in books, they may object or respond, but otherwise they usually take their lumps.

But not Dallas developer H. Walker Royall. He was the subject of a 2007 book criticizing his efforts to get Freeport, Texas, to use eminent-domain laws to enable him to build a marina where a shrimp business has existed for generations. The book by Carla Main is titled Bulldozed: “Kelo,” Eminent Domain and the American Lust for Land.

Royall responded by suing the author and publisher of the book for libel, along with the author of a blurb on the book-jacket cover, and a local book reviewer who wrote a favorable commentary on the book in a Galveston newspaper. The blurb writer is the noted University of Chicago law professor Richard Epstein, whose legal response to the suit was to invoke the First Amendment and add, “The alleged libelous statements are true,” and “even if the allegedly libelous statements are not true, they are not defamatory.”

Royall’s lawsuit filed in October has drawn criticism as a corporate effort to stifle free speech, akin to so-called SLAPP (strategic lawsuit against public participation) litigation that is restricted in many states. “Mr. Royall should tell the public why he doesn’t like Carla Main’s book, rather than try to censor it,” said Wesley Hottot, a lawyer for the Texas branch of Institute for Justice, a libertarian legal group that has turned the dusty concept of eminent domain into a hot nationwide issue.

The Institute for Justice is now defending author Main, publisher Encounter Books, and Epstein. It also has launched a public campaign to spotlight Royall’s lawsuit as well as efforts in Tennessee and Missouri to punish critics of what it calls eminent-domain abuse. “Unfortunately for men like Royall, the First Amendment protects people’s right to speak freely about important public issues,” the institute states in a press release about the case.

Patrick Zummo, one of Royall’s lawyers, denies any effort to stifle criticism, asserting that the defendants acted “maliciously” to “defame Mr. Royall.” As for the Institute for Justice, Zummo says it “has an ax to grind” and is “forcing its agenda on the facts and is misrepresenting what happened.”

The book details the story of Pappy Gore, founder of Western Seafood, a successful shrimping business in Freeport. Working with Royall, the city moved to take Gore’s property by eminent domain so Royall could build a luxury marina complex.

Eminent domain has long been used to take private property for public projects such as schools and roads, but the Institute for Justice has objected when local governments take unblighted private property only to turn it over to another private owner for development. The institute took the issue to the Supreme Court, resulting in the 2005 ruling Kelo v. City of New London. In that ruling, the Court said that transferring property to another private owner is a proper use of eminent domain if it is done as part of a valid economic-development plan.

According to the institute, Royall instructed his lawyers to “redouble their efforts” to have the Gore property taken after the Kelo decision came down. Gore fought back in court and won, though the case is on appeal. The issue has divided the town.

Royall sued the Gores for defamation, and when journalist Carla Main wrote her book, Royall sued her too. Her book sought to illustrate the issues raised by eminent domain in the aftermath of Kelo. Epstein’s blurb said the book read like “a Greek tragedy,” chronicling a battle between the Gore family and “the machinations of an unholy alliance between city politicians and avaricious developers.” Epstein added, “You’ll never look at eminent domain in the same way again.”

In his lawsuit Royall claims he is a private, not a public, figure, thereby seeking to place himself in a category of plaintiffs who would have an easier time winning a libel suit. He claims that since the book was published in December 2007, he has been subjected to “repeated questions” by friends and acquaintances. “Plaintiff’s reputation has been damaged, and plaintiff has experienced mental anguish as a result of the defamatory statements in the book and the review.”

Responses by Main, Encounter, and Epstein assert that Royall is a public figure and as such “bears the burden of establishing that the allegedly libelous statements were made with actual malice.”

In statements provided by the Institute for Justice, Main says she tried unsuccessfully to contact Royall for comment while writing the book. “The book was a labor of love,” she said.

Epstein said he never thought he’d be sued for writing a blurb for a book. “It is a sad day in the life of America when a powerful individual like H. Walker Royall, who has complete access to the media, thinks that the appropriate response to criticism is to remain silent and then to bring a defamation action against those who comment on his deeds.”

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