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. The case revolves around the book Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land by Carla Main (Encounter Books) and a defamation lawsuit filed by Dallas developer H. Walker Royall, who claims the book defames him, and is seeking to ban any further printing or distribution of the book.
Among the key issues in play at the hearing is whether authors and publishers of books are members of the "print media" and have standing to make an interlocutory appeal raising First Amendment defenses. Under Texas law, appellate courts may consider the merits of First Amendment defenses before trial so that members of the media can avoid costly and time-consuming litigation over meritless claims designed to suppress protected speech. In their arguments, Royall’s attorneys maintain that under Texas law, book authors and publishers do not have standing to seek such an interlocutory appeal, and that the statute reserves this right for “news” organizations.
“This is the first Texas case that will determine if books count as print media,” Dana Berliner, a senior associate at the Arlington-based Institute for Justice, told PW. “The court was very engaged on the issue, and there will be a decision on it that could be very important for books and other media as well.”
Published in 2007, Bulldozed chronicles events in Freeport, Tex., where Royall signed a development agreement that involved the city taking land owned by Western Seafood—a generations-old shrimping business—so a luxury yacht marina could be built. Berliner says this kind of use of “eminent domain” is very much a public issue, and that that Royall has failed to show any evidence of defamation in the book, as defined by the law, but is instead using the suit to suppress Main’s protected free speech. In addition to suing Main and her publisher, Royall has also sued a newspaper that published a review of Bulldozed, (as well as the review’s author), and even sued a law professor, Richard Epstein, for writing a jacket blurb. The case against Epstein was dismissed in March. A Dallas trial court, however, denied Main and Encounter’s motion for summary judgment in the case last year, and ruled that the lawsuit against them could proceed.
“In bringing this lawsuit, Royall seeks to control and punish public discourse about a public-private development project in which he chose to become involved,” reads Main’s brief to the appeals court. “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.”
The Association of American Publishers is among those who have filed amicus briefs in support of Main. A ruling is not expected until early 2011, Berliner said.