Back in 2006, I wrote two posts about Western Seafood Co. v. City of Freeport, a potentially important post-Kelo eminent domain case decided by the Fifth Circuit Court of Appeals (see here and here). The case became the subject of an excellent book by legal journalist Carla Main, who documented how the condemnation of the property was likely instigated by H. Walker Royall, the Texas oil millionaire who sought to acquire the land in order to build a luxury marina.
Now Royall is suing Main for libel, and also suing University of Chicago law professor Richard Epstein because Epstein wrote a laudatory blurb for the book. Tim Sandefur has the details and additional links here. As Tim points out, it is unlikely that Royall will win his suit because he is clearly a "public figure" under New York Times v. Sullivan, and a public figure cannot prevail on a libel claim unless he proves both that the statements about him were untrue and that the the defendants knew it or acted with "reckless" disregard for the truth.
CONFLICT OF INTEREST WATCH: Richard Epstein and I have worked together on some other eminent domain issues, though not on this case. I also have done a variety of eminent domain-related pro bono work for the Institute for Justice, which is representing Epstein and Main.
Related Posts (on one page):
- Prof. Richard Epstein Dismissed from Book-Blurb Libel Case, on Jurisdictional Grounds:
- Journalist Carla Main Responds to Developer Who is Suing Her Claiming that She Defamed Him in Book Chronicling His Effort to Acquire Property Through Eminent Domain:
- Texas Developer Who Used Eminent Domain to Acquire Property for Himself Sues Journalist Carla Main and lawprof Richard Epstein for Libel:
Wow.
Good news, though -- thanks to the internet, H Walker Royall can expect his name to become synonymous with "thuggish censorious asshat."
Takings: Private Property and the Power of Eminent Domain
Principles For A Free Society: Reconciling Individual Liberty With The Common Good
The Theory of Gambling and Statistical Logic, Revised Edition
and, maybe most importantly,
Torts (Introduction to Law Series)
Cases and Materials on Torts
This is not situation where the defendant has no resources - Prof. Epstein is renowned law professor!
The entirety of Epstein blurb:
More seriously, is there any chance for the defendants to recover their legal fees in this case, or does this fall under the usual "each side pays his own expenses"?
in Texas state court? Someone that doesn't strike me as very likely. Perhaps Houston lawyer could comment.
Nor does it seem likely that the Texas state bar would take up a complaint about a lawyer's filing of a frivolous lawsuit. If that happened the whole state judicial system would grind to a halt due to inactivity, at least in California (just kidding, please no libel suits, this is a joke)
I would try to remove to federal court ASAP, based on diversity jurisdiction, if possible. Where does Ms. Main live?
Legal disclaimer: I am asking a question, not offering an opinion. Not that I don't have one.
OK, so sue me. I've always wanted to own part of a marina on the gulf coast.
It's called Strategic Lawsuit Against Public Participation and, in California would be subject to an immediate special motion to strike under California Code of Civil Procedure section 425.16."
We agree on this one. This statute, and the ensuing case law, has essentially eliminated the possibility of successful defamation litigation in California.
Wow, since the blurb didn't mention anyone by name can't the plaintiff actually be counter-sued here because he failed to mitigate potential damages when he "came out of the closet" and self-identified himself as an "avaricious developer"?
While I cannot speak specifically to Texas law (and I am far too lazy to look it up right now) this wouldn't go to mitigation -- not that this would be an issue in defamation. It would go to the common law element that is usually referred to as "identification". Can the plaintiff say the defamatory statement was about the plaintiff? Usually this is a problem when a libelous statement is about a larger group (All Americans have STDs!). In this case, I think that it is a fair statement that identification is not a problem since he is the developer mentioned in the book.
There's way too many other problems, though. Developers (plural)? Is being called avaricious, if you're a developer, even a libelous statement -- or a compliment? Would it harm you in the eyes of the community, or even a substantial and respectable minority (among developers, it might get you a prize)? That's before getting into the constitutional protections . . .
The other point, that the rest of us worry about, is being Kelo-ed out of our property by a corrupt takings process.
Forensic audits of all public officials for life!!
As a quick followup, i was curious about an assertion you make. You claim that H. Walker Royall is a 'public figure'. Why are you convinced that this is the case (I've never heard of him, and know little about this case).
1. I doubt he is a general purpose public figure.
2. If he is a limited-purpose public figure for this controversy, why would you say that he is? Texas has the texas journaslist / Waco articulation for a limited purpose public figure, and he might meet the definition under that.
3. He is more likely a private figure in a matter of public concern (which is what Gertz, a case Tim cites, is actually about). In that case, there are constitutional protections, but not the ones you're thinking of. While state law might impose a different standard, the con. minimum is only actual malice for presumed damages; Royall could get actual/emotional without AM.
Just wonderin'. Still think it is most likely a bogus claim, but the difference between 1&2 vs. 3 is huge one.
If the initial pleadings state a strong libel case without further discovery, then the defendant's 425.16 motion won't prevail. Too many times plaintiffs embroiled in public issue discussions sue in libel with a near frivolous case just to jack around the defendant with motions and discovery. CCP 425.16 stops those cases cold. But frivolous motions to strike will cost the losing defendant. From CCP 425.16(c):
Orin, like others here, I seriously doubt this suit will result in sanctions from the state court. Well-known members of the bar from well-known law firms advance cruddy claims and defenses all the time in local state courts, and sanctions are exceedingly rare. The typical attitude of the state court judge is "I'll just rule on the case, fooling with sanctions is not worth my time and the appellate courts don't want to affirm them; let people go to federal court for sanctions. Besides, this is an elected position and why make enemies when I can just move on to the next case?"
The best route in the absence of an anti-SLAPP law is to try to get the court to dismiss the defamation suit as quickly as possible (on the facts given here, that should be relatively easy for Epstein and much harder for Main), and then for both of them to make a malicious prosecution claim against Royall. It looks like years of tsuris ahead.
Royall is a very prominent businessman in the area. That makes him a public figure. In addition, he has used his business clout to try to influence public policy, including in this case. That too makes him fair game as a public figure.
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