Last July I noted a Texas appeals court's decision rejecting virtually all of the claims that Dallas developer H. Walker Royall made in his 2008 defamation suit against Carla Main, author of the 2007 book Bulldozed: "Kelo," Eminent Domain, and the American Lust for Land. Although Royall argued that both the gist of the book and 78 specific statements in it libeled him, the court found that he had failed to present even the minimal evidence required to proceed with his case on any of those 79 claims—an extraordinary rebuke given how plaintiff-friendly the standards were at that stage of the case. Now Roger Kimball, who published Bulldozed as head of Encounter Books, reports that Royall has "at last quietly dropped his suit, thus ending a dark and dangerous legal fight."
Given the details of Royall's claims as described in the appeal's court decision and his own brief, it is amazing the suit lasted as long as it did. Among other things, he said Main accused him of initiating the Freeport, Texas, economic development project at the heart of the book, when in fact Bulldozed makes it clear that the city approached Royall. He said the book's subtitle defamed him because it mentioned "The American Lust for Land," even though that phrase refers not to him specifically but to the dynamics underlying eminent domain abuse in general. Royall said he was defamed by a reference to "an unholy alliance between city politicians and avaricious developers" in a blurb on the book's back cover by legal scholar Richard Epstein (who was initially named as a defendant), leading to a debate about whether the unholiness of an alliance or the greediness of a developer is a matter of fact or opinion. (The latter, the appeals court concluded.) Royall argued that depicting eminent domain abuse as a kind of theft—an expression of political opinion if there ever was one—is per se defamatory, in effect accusing him of a felony.
The appeals court found that many of the statements Royall thought defamed him did not even refer to him. In fact, Royall does not come across as the villain of Bulldozed. Main portrays him as acting out of a misplaced sense of noblesse oblige, reserving her strongest criticism for the city officials who were so eager to revive Freeport with a new marina that they were willing to trample the property rights of people who stood in the way. Royall looks much worse in his own litigation that he does in the book that prompted it.
As Kimball points out, Royall's suit was dangerous to free speech partly because he argued that criticism of the marina project amounted to criticism of him personally:
Royall argued that criticism of government is also by implication criticism of the developer in such projects; words that stick to one, stick to the other....
The [appeals] court preserved the right to criticize government without fear that persons who do business with municipalities will sue, saying they were personally defamed by mere association with government. One can easily imagine the chilling effect the absence of this protection would have on free speech in an age of public-private real estate partnerships, bank bailouts, the Solyndra loan and other government forays into the private sector.
Another important aspect of the case is the appeals court's conclusion that books qualify as "print media" (a point that Royall disputed vigorously but not very convincingly), meaning that authors like Main can receive expedited consideration of First Amendment arguments under Texas law. The upshot was that after a judge declined to dismiss Royall's suit in September 2010, Main was able to seek review by an appeals court before the case went any further.
Two months before the appeals court's ruling, the state legislature approved the Citizens Participation Act, which provides additional protection for defendants facing meritless, speech-chilling lawsuits. Under the law (which Main urged the legislature to pass), people who are sued because of their speech "on a matter of public concern" can seek a prompt hearing at which the plaintiff must present "clear and specific evidence" backing up his claims. The request for the hearing has to be made within 60 days of the lawsuit, and the court is supposed to schedule a hearing within 30 days if its docket allows. During this process, discovery is put on hold. If the plaintiff fails to make a prima facie case at the hearing, the court is required to dismiss the suit and order "court costs, reasonable attorney's fees, and other expenses...as justice and equity may require." Had this anti-SLAPP law been on the books in 2008, Main could conceivably have been rid of Royall's suit in three months instead of three years.