Thursday, September 30, 2010

The First Amendment Under Attack in Texas

Bear with me for a few minutes today. I promise I'll get to the reason writers should be interested in this post.

In the United States, the right of the state to seize a citizen's private property with compensation, but without the owner's consent, is called eminent domain. This same right is called expropriation in Canada and compulsory purchase in the U.K.

Wikipedia says:
[Under eminent domain] The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. The most common uses of property taken by eminent domain are for public utilities, highways, and railroads ...
In 2005, in the case of Kelo v. The City of New London, in a 5-to-4 decision, the U.S. Supreme Court affirmed that New London, Connecticut, could take non-blighted private property via eminent domain, and then transfer that property for a dollar a year to a private developer for the sole purpose of increasing municipal revenues.

I can still remember my absolute horror and outrage when reading about that Supreme Court decision.

The Institute of Justice (a non-profit libertarian public interest law firm) produced a video about the Kelo decision titled Kelo: Five Years Later. You can watch it here. The video claims that, since the Kelo decision, four states' Supreme Courts have rejected Kelo, and 43 states have changed their laws with more than half the states prohibiting the kind of tactics used in Kelo to label an ordinary area as "blighted" and then take a citizen's property and turn it over to a third party.

Which brings us to today's story. Dallas developer Hiram Walker Royall wanted to develop a marina in Freeport, Texas on some land his family owned. According to Forbes:
In 2002 Freeport wooed Royall with a plan to turn his family's land into a private yacht basin. Royall kicked in $750,000 worth of land. The city, which shares a building with a bank owned by Royall's extended family, lent $6 million for 25 years at 4.84%. All very cozy--except that Royall also wanted a 300-foot ribbon of land owned by Western Seafood, a $30-million-a-year business [owned by Wright Gore III and his family]. Royall offered $270,000; the Gores figured they'd need $1.3 million to reconfigure operations. In 2004 the city moved to grab the land under eminent domain (and pay a court-approved price), then turn it over to Royall.
Wright Gore did not go down easily. He started a website and rented billboard space to protest the hijacking of his property and his company. "The City of Freeport and Mr. Royall ganged up on us in an attempt to deprive us of our way of life for over 50 years. We are fighting for survival, for the right to make a living," he told reporters. "If our property were being taken for a road or a bridge, we would understand that as a public use. But to take away our property and our livelihood for another person's enrichment is just un-American."

Gore's family sued the City of Freeport in federal court; the city returned the favor, suing the Gores in state court.

Royall sued Gore for defamation, complaining that Gore wanted to "make people think that I'm just a rich jerk." Hmmmmm.

The story attracted the interest of Carla Main. In 2007, she wrote a book about the case. George Will described Main in an op/ed piece in the Washington Post:
An experienced journalist (former associate editor of the National Law Journal, she has written for the Wall Street Journal, National Review and numerous other publications), Main has recounted the case in her book "Bulldozed: 'Kelo,' Eminent Domain and the American Lust for Land." Her thesis is that many "takings" of property for economic development are taking a terrible toll on the rights of everyday Americans.
My mother used to say that some people have more money than sense. According to Forbes:
Royall also filed defamation suits against Main, her publisher, a legal prof who wrote a blurb for the book, a reviewer and two newspaper companies.
George Will says that Royall's suit against Carla Main "ignores long-established criteria of defamation law, which holds that a statement is not actionable as defamatory if the speaker obviously is expressing a subjective view or an interpretation, theory, conjecture or surmise."

The Gores won both the federal and state suits against the city. The city is appealing. The Gores settled the defamation suit against Royall with their insurance company paying Royall $300,000 in exchange for a promise to leave the Western Seafood property alone.

The defamation suit against the law professor, Richard Epstein, who wrote the jacket blurb for Carla Main's book, was dismissed six months ago. However, the suits against Main and her publisher are still very much alive. A Dallas trial court ruled that Royall's case could continue. Yesterday's Publishers Weekly said:
A Texas Appeals Court yesterday heard a key defamation case that will decide whether books will get the same First Amendment protections as other media, such as newspapers, in the state of Texas ... Main's brief to the appeals court [said], 'Royall does not dispute the facts, or, indeed, any factual descriptions of things he said or did. Instead, he claims to have been defamed by the way Main characterizes the project and Royall’s involvement, the conclusions she draws from disclosed facts, predictions about the future effects of the project, and her political views. The First Amendment fully protects such speech, and Royall’s attempt to ban it by way of this libel suit must be rejected'.”
Go here to read the Forbes article.

Go here to read George Will's column in the Washington Post.

Go here to read the Publishers Weekly article.

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