Bulldozing the First Amendment
It began with the proliferation of campus "speech codes" ostensibly designed to promote civility but frequently used to enforce political conformity. The new censorship accelerated with the McCain-Feingold legislation that licenses government regulation of the quantity, timing and content of speech in political campaigns.
Now the attack on First Amendment speech protections has taken an audacious new turn, illustrated by a case being pondered by a Texas judge. He is being asked to collaborate in the suppression of a book, and even of expressions of approval of the book.
The book arises from an abuse of the power of eminent domain by the city of Freeport, Tex., but the story really begins in Connecticut. There, in 2000, New London's city government condemned the property of middle-class homeowners in an unblighted neighborhood for the purpose of getting the property into the hands of commercial interests that would pay more taxes. In 2005, in Kelo v. City of New London, the U.S. Supreme Court upheld, 5 to 4, New London's rapaciousness as a constitutional taking of property for what the Fifth Amendment calls a "public use." Rapacious people around the country salivated.
When Kelo was decided, H. Walker Royall, a Dallas developer, already had designs on some property that for more than a decade has belonged to the Gore family shrimping business in coastal Freeport. In 2003, Royall signed an agreement with that city's government to build a yacht marina, hotel and condominiums using property the city would seize by eminent domain.
The day after the Supreme Court made its Kelo mistake, Freeport intensified its pressure against the Gores, whose stout resistance caught the gimlet eye of Carla Main. 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.
In October 2008, Royall sued Main and her publisher (Encounter Books), seeking monetary damages and a ban on further production and distribution of the book. He also sued the Galveston newspaper that reviewed the book and the reviewer. A judge dismissed, on jurisdictional grounds, Royall's suit against Richard Epstein, professor of law at the University of Chicago and New York University, whose offense was a dust-jacket endorsement of the book as a report on an "unholy alliance" between government and a private interest.
Royall's lawsuit charging Main with defamation is, her lawyers document, riddled with mischaracterizations of what Main writes and about whom she writes it, and 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.
Indeed, so slapdash are Royall's accusations against Main that his suit seems to reflect nothing more substantial than his dislike of her opinions and those of people she accurately quotes. It seems intended to chill commentary on eminent domain abuse by exposing commentators to the steep costs of deflecting even frivolous litigation.
The Institute for Justice -- an Arlington-based public-interest group that represented the victims of eminent domain in New London; it also is assisting the Gores -- identifies a national trend of attempted intimidation by litigation. For example, in Clarksville, Tenn., the institute successfully defended a group of property owners sued for $500,000 by a city councilman and a business interest claiming injury by a newspaper advertisement objecting to their eminent domain plans. In Renton, Wash., two developers sued a woman for statements she made while resisting a blight designation of her property, including, for example, that one of the developers is "a haughty and proud Pharisee." The Supreme Court is blameworthy for two entangled abuses. It diluted property rights in the Kelo case and it weakened freedom of speech by not overturning McCain-Feingold. Fortunately, in an unusual Sept. 9 session, the court will hear, for a second time, oral arguments in a case arising from that law's speech restrictions.
The court should be cognizant of the attacks on property rights that its Kelo decision incited. And on Sept. 9 it should remember the increasing resort to restrictions of speech. McCain-Feingold is both a symptom and an encouragement of such restrictions.
The writer is a member of the board of the MacArthur Foundation, which provides some funding for the Institute for Justice. His e-mail address is firstname.lastname@example.org.