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Jewish World Review
Feb. 13, 2009
/ 19 Shevat 5769
Develop This! Kelo metastasis
John H. Fund
In the years since the in famous 2003 Kelo case in which the Supreme Court narrowly upheld the right of government to seize property through eminent domain and then transfer it to private interests, abuses have proliferated. But not all merely involve the loss of property; some also threaten the basic right of free speech.
In recent years, lawsuits have been filed in Tennessee, Missouri, Texas and other states seeking to silence critics of private entities that stand to gain from eminent domain actions. The most brazen suit was filed last year by Dallas developer H. Walker Royall, who has worked for years to condemn a generations-old shrimp business owned by the Gore family of Gulfport, Texas, so he can build a marina. The project represented such a vivid clash between personal freedom and private interest that legal journalist Carla Main highlighted it in her book "Bulldozed: "Kelo, Eminent Domain and the American Lust for Land." Her book was reviewed favorably in many newspapers, including the Wall Street Journal.
But Mr. Royall, the developer whose actions were criticized in the book, fought back. Last year, he sued the author and her publisher, Encounter Books, for defamation. Stunningly, he even sued Professor Richard Epstein of the University of Chicago, one of the nation's foremost experts on eminent domain and author of the seminal 1985 book "Takings." What had he done to merit a lawsuit? Merely provide an endorsement for the book, which appeared on its back cover.
What did Prof. Epstein's libelous blurb say? In full, it read: "Like a Greek tragedy unfolding, Carla Main's book chronicles the eminent domain struggles in Freeport, Texas, which pitted the Gore family, with its longtime shrimp business, against the machinations of an unholy alliance between city politicians and avaricious developers. If you have ever shared the Supreme Court's unquestioned deference to the public planning process that shaped its ill-fated Kelo decision, you'll surely change your mind as you follow this sordid saga to its bitter end. You'll never look at eminent domain in the same way again."
Mr. Epstein couldn't believe he was included in Mr. Royall's scattershot lawsuit. "There are few times in my professional career when I've been flabbergasted and this is definitely one of them," he says, noting he has been involved in hundreds of legal cases over a 40-year career.
Luckily for him, the Washington-based Institute for Justice stepped in and is paying the legal bills in defending Ms. Main and Mr. Epstein in the lawsuit. Its attorneys say lawsuits brought against critics of eminent domain actions are merely an attempt to squelch public debate. "Mr. Royall should tell the public why he doesn't like Carla Main's book, rather than try to censor it," says Wesley Hottot, an attorney for the Institute for Justice.
I admit to some personal involvement with the players in this case. Mr. Epstein is a friend and Encounter published my last book. But there's nothing like knowledge of the motives of the figures at the heart of this case to expose how unjustified the attempted legal intimidation is. The Founders wrote the First Amendment in an effort to ensure a vigorous and open public debate. To drag people who engage in such discussion into court is an abuse of the legal process and gives legitimate defamation suits a bad name.
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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)
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© 2006, John H. Fund