Criticism of eminent domain plan is not defamatory

Clara Hogan | Libel | Feature | July 26, 2011

A Dallas land developer failed to show sufficient evidence to maintain his defamation lawsuit against the author and publisher of a book that criticized his involvement in a city's eminent domain plan, a Texas appellate court ruled yesterday in a case that exemplified why the state recently enacted an anti-SLAPP statute.

The Court of Appeals, Fifth District, in Dallas overruled a trial court’s order that Carla Main’s book, “Bulldozed: ‘Kelo,’ Eminent Domain and the American Lust for Land,” was not protected by the First Amendment in the case, Main v. Royall. The court held that Main is indeed protected as a part of the “print and electronic media” and that Royall failed to show any part of the book defamed him.

“Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” Dana Berliner, senior attorney at the Institute for Justice, the nonprofit public interest law firm that is defending Main and her publisher, said in a statement.­­ “The appeals court has exposed the frivolity of Royall’s lawsuit, holding that Royall failed to prove that a single word of Bulldozed defames him.”

"Bulldozed," a non-fiction book published in October 2007, is critical of the government’s taking of private land through eminent domain for private use. Part of the book tells the story of the Western Seafood Co., a family-owned shrimp processing business in Freeport, Texas, that fought the city’s plans to use it and other waterfront property to build a private yacht marina. The book also discusses the city’s agreement with Royall, a commercial real estate developer, to develop and operate the marina.

Main attempted to contact Royall multiple times to give him a chance to tell his side of the story in her book, but he refused comment. After the book was published, Royall filed a lawsuit in October 2008 against Main, her publisher, the newspaper that printed a review of her book, the author of the review and a Chicago professor who wrote a paragraph for the back of the book.

Anti-SLAPP advocates consider the case against Main a quintessential SLAPP, or strategic lawsuit against public participation, which are typically filed as defamation claims not necessarily in hopes of winning but in an effort to intimidate and silence critics.

With the help of Main’s testimony about her experience, Texas passed an anti-SLAPP law this past legislative session that gives more First Amendment protection to defamation defendants by allowing them to quickly dismiss suits meant to silence critics of public projects.

Texas became the 27th state, along with the District of Columbia, to adopt anti-SLAPP legislation. The U.S. Congress and North Carolina are also considering similar legislation.

Main’s case went to court before Texas enacted its anti-SLAPP legislation, which goes into effect in September, but she tried to get the case dismissed through motions for no-evidence summary judgment and a traditional motion for partial summary judgment.

The trial court denied both motions. Main and The Encounter for Culture and Education then appealed under a Texas law that allows an appellate court to immediately consider a case if a trial court denied a motion for summary judgment based on a claim against the “electronic or print media” arising under the free speech or free press clause of the federal or state constitutions.

Royall argued the Court of Appeals did not have jurisdiction to consider the case because book authors and publishers are not “electronic or print media."

Royall claimed that the "gist" of the book defamed him in addition to individual statements in or about the work.

Under Texas law, a publication, even if entirely true in its details, can still “convey a substantially false and defamatory impression by omitting material facts or suggestively juxtaposing true facts.” The appellate court found Royall could not prove "Bulldozed" misled readers by omitting facts or taking them out of context.

“A person of ordinary intelligence would not read the entire book, or even the portions about the marina controversy and conclude that the gist was that Royall ‘formed a partnership for the purpose of, and in anticipation of, developing a marina in Freeport, Texas by taking property from the owners of Western Seafood Company and putting Western Seafood out of business,” Justice Elizabeth Lang-Miers said for a unanimous three-judge panel.

As to the claims based on individual statements, the court held Royall did not have “more than a scintilla of evidence” to prove defamation, meaning "the evidence is so weak that it does no more than create a mere surmise or suspicion of a fact."

“In summary, we have examined the 79 grounds in the no-evidence motion that address statements in the book and have concluded that Royall did not raise a genuine issue of material fact regarding any of the grounds," Lang-Miers said.

Main, a journalist and former associate editor of The National Law Journal, said in a statement she is pleased with the ruling.

“This is a great day for the First Amendment and obviously, a great day in my life,” she said.