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 georgewill@washpost.com.

In its amicus brief filed this past Friday, IJ warns that the self-interest surrounding modern civil-forfeiture law poses one of the most serious threats to property rights in our nation today.

“The current incentives facing law enforcement means that too often police and prosecutors enforce the law with an eye towards the bottom line rather than to making sure justice is done,” said Scott Bullock, an Institute for Justice senior attorney who co-authored the brief.  “In more than 40 states, law enforcement gets to keep some or all of the property and currency that they seize for their departments.  The lure of forfeiture proceeds has both distorted law-enforcement priorities and led to horrible abuses.  The Court should protect property owners by requiring that the government justify seizures as soon as is practical, rather than months or years in the future.”

Civil forfeiture laws allow the government to seize property and keep the proceeds on the flimsiest of pretenses.  Under civil forfeiture, it is not necessary for the government to demonstrate that the property’s owner is guilty of criminal misconduct.  Indeed, forfeiture can take place even when criminal charges have never been filed against a property owner.  This is because civil forfeiture laws operate under a “legal fiction” that treats the property as the accused.  Because of this fiction, forfeiture proceedings give the government all the advantages, while all the burdens are placed on property owners to attempt to reclaim ownership of their property.  In practice, seized property is guilty until proven innocent.

As draconian as these procedures are, they are made infinitely worse by the fact that modern law enforcement has a financial interest in the outcome of the forfeiture proceedings.  IJ’s brief traces the transformation in modern forfeiture law, showing how a change that let law enforcement keep a share of forfeiture proceeds has led agencies to seize as much money and property as possible.  The promise of civil-forfeiture revenues has caused police and prosecutors to over-enforce laws that carry the promise of forfeiture proceeds.  Furthermore, police and prosecutors have often enforced those laws in ways designed to maximize forfeiture income rather than minimize crime.  The brief also points to numerous instances where law-enforcement agencies—in what can literally be characterized as highway robbery—have seized property from innocent people without any suspicion of illegal activity whatsoever. 

As the brief explains, “[p]art of the reason for these strong-arm tactics is that, because of the cost, difficulty, and amount of time that it takes to successfully challenge the seizure of one’s property, many innocent property owners fail to challenge the seizure or instead settle with law enforcement.”  In Illinois, for instance, people whose money or property is seized may not see a judge for six months or more.  During that time, they are without the car they need to drive to work or the money they need to pay their utility bills.  Rather than continuing to fight, many people just give up.  The end result is that the government gets to keep property to which it has no right.

The U.S. Supreme Court has said that “individual liberty finds tangible expression in property rights.”  But for those rights to be safe, the courts must act as an effective check against executive action.  Last year, the 7th U.S. Circuit Court of Appeals joined another court in holding that property owners should have the right to a preliminary hearing, as soon as is practical following a seizure, at which the government must justify its continued detention of the property.  The Institute for Justice calls on the Supreme Court to affirm this ruling and help protect property owners nationwide.

“It is an affront to our tradition of private property that the vast majority of seizures made by self-interested government officials never receive any judicial scrutiny,” says Robert Frommer, an IJ staff attorney who co-authored the brief.  “The Court can reduce the risk that innocent people’s property is taken to line law enforcement’s coffers by holding that the government must justify its seizures at a prompt preliminary hearing before a disinterested objective decision maker.”

The Institute for Justice defends the right to private property against government encroachment of all kinds.  IJ has fought to protect property rights from the threat of eminent domain abuse, including arguing the landmark case of Kelo v. City of New London before the U.S. Supreme Court in 2005.  IJ has also worked diligently to fight civil-forfeiture abuses and shed light on the danger of giving law-enforcement agencies a financial stake in the money and property that they seize.  IJ has filed amicus briefs with the U.S. Supreme Court in two of the most important civil-forfeiture cases in recent years, United States v. James Daniel Good Real Property and Bennis v. Michigan.