"Veggie-Libel" Law Still Poses a Threat

Ronald K.L. Collins & Paul McMasters

Ronald Collins is the co-author of The Death of Discourse (Westview, 1996) and the director of the FoodSpeak Free Speech Project at CSPI. (FoodSpeak@cspinet.org) Paul McMasters, formerly an editor at USA Today, is First Amendment ombudsman at The Freedom Forum in Arlington, Virginia. This article originally appeared in Legal Times, March 23, 1998, p. 28, and is reprinted with permission of the publisher.

Victory is in the eye of the beholder. Take the court ruling and the jury verdict in the Oprah Winfrey defamation case. Both were certainly good news for the celebrated talk-show host and her co-defendants. Then again, they are not flag-waving victories for the cause of free speech, especially in the 13 states that have food-disparagement laws and in the other states where such bills are pending. Through no fault of the defendants, the Oprah "victory" resolved only a narrow statutory question; it left unresolved, however, a major constitutional question. Unless that question is answered — and soon — others who don’t have the public profile or private resources of Ms. Winfrey will be dragged off to court for speaking out about food and food safety.

The First Amendment After Oprah

Before the trial concluded, federal District Judge Mary Lou Robinson ruled that the plaintiffs, Texas cattlemen, had no right to sue Ms. Winfrey under the Texas food-disparagement statute. Her ruling thus left the Texas statute constitutionally intact, which means that future actions may be brought against others who allegedly defame a "perishable food product." Of course, Judge Robinson did allow the plaintiffs’ common law action to proceed. But that failed, courtesy of the jury’s verdict. That verdict, though welcome news, also did not address the crucial constitutional question. So, in the vast majority of the states with food- disparagement statutes, food critics may be held to legal account if they cannot substantiate their claims by "reliable scientific inquiry, facts, or data," as many of these statutes provide.

The Oprah case actually helps industry at the expense of free speech values. Here is why.

First, the ruling lets stand the special defamation laws carved out for the benefit of the agri-business. These preferential treatment statutes abandon the traditional common law product disparagement cause of action. In its place, many of them punish protected expression, establish a lower standard for civil liability, allow for punitive damages and attorneys fees for plaintiffs alone, and lend themselves to abusive litigation practices. The food-disparagement statutes — enacted between 1991 and 1997 — were devised by the industry precisely because the common law standard of fairness permitted too much robust expression about food and food safety. (Consider, e.g, Auvil v. CBS "60 Minutes," 800 F. Supp. 928 (E.D. Wash., 1992), affir. 67 F. 3rd 816 (9th Cir., 1995), cert. denied, 116 S.Ct. 1567 (1996) (rejecting common law action by apple growers against CBS in connection with a 1989 broadcast on the dangers of Alar).

Second, the Oprah ruling does not change the scientific evidence standard, which has a clear chilling effect on anyone who wishes to speak out about food, including freelance journalists and non-profit organizations. That is, unless one can speak with scientific certainty — and such "scientific" data typically remain closely-held by industry — legal liability can follow. The more than occasional result: No public talk about food unless such talk comports with "reliable scientific inquiry, facts, or data." Turn back the clock and consider how that standard would have stifled public debate about tobacco. The principle is as noble as it is unpredictable: The search for truth, be it scientific or other, is often contentious; hence, in the give-and take of it all, error must of necessity tumble with its opposite.

Third, the message the Oprah trial sends to would-be food critics is that they may one day find themselves at the horns-end of a costly lawsuit. If a popular and powerful TV personality is not safe from these laws, then who is? Remember, the statutory victory in the Oprah case cost upwards of a million dollars to defend, not including the cattlemen’s appeal. The net effect of the Oprah ruling may well be to silence those who cannot endure the time and expense demanded by a seven-figure lawsuit. In that respect, the food-disparagement laws encourage lawsuits designed to intimidate food critics by the mere threat of we-can-bankrupt-you litigation, replete with gag orders from cooperative judges.

Finally, the sword of Damocles still hangs over the media as well. For as long as food critics must satisfy a high burden of scientific proof, the media will be understandably hesitant to publish stories in this area lest their names be added to a legal complaint. A recent editorial in the Press Journal (Vero Beach, FL) states the danger well: "A consumer reporter for a small-market newspaper or TV station or a solo scientist putting out a food-safety newsletter is . . . very much at the mercy of agribiz." This suggests that food critics will be less likely to be critical, and when they are critical the press may also be less likely to air their views.

The "victory" in Texas thus leaves First Amendment freedoms in jeopardy, which is their unstated purpose. The food-disparagement statutes in the 13 states represent "a legislative attempt to insulate an economic sector from criticism." David J. Bederman et al, 34 Harv. J. Leg. 135, 168 (1997). In Colorado, such insulation comes by way of a criminal law (Colo. Rev. Stat. Ann. 35-31-101) designed to punish those citizen-activists guilty of mouthing falsehoods about farm products. Imagine what any of these laws, let alone the Colorado one, could mean to those who distribute food safety newsletters in these states or who post food criticisms on the Internet.

First Amendment Threats & Defeats

Despite the issue raised in the Oprah case, food-disparagement bills continue to be introduced (or reintroduced after failing) in states such as California, Florida, Iowa, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, Vermont, and Wisconsin, among others. It bears noting, however, that such proposals have failed in California, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Pennsylvania, South Carolina, Washington, and Wyoming. An attempt to include a disparagement provision in the federal 1996 Farm Bill also failed.

Meanwhile, the court cases continue. Three veggie-libel suits are currently being litigated. In Texas some emus ranchers are suing Honda in federal court for a 1997 tongue-in-cheek TV commercial in which the following was said: "Emus, Joe. It’s the pork of the future." The ranchers are claiming some $75,000 in damages. In Ohio, the Buckeye Egg Farm is suing a consumer organization, the Ohio Public Interest Research Group, and one of its employees, Amy Simpson. The egg producer (represented by Jones, Day, Reavis & Pogue) alleges that the defendants, during the course of a press conference announcing a consumer action against Buckeye Egg, falsely and knowingly misrepresented that the company washed and repackaged old eggs for resale. The defendants counter that their charges were based on numerous interviews with the company’s own employees "who knew of the repackaging." Finally, there is the lawn libel case in which the owner of A-1 Turf is suing a Texas agricultural agent (James McAfee) for allegedly issuing libelous reports about its sod. The agent’s statements were later published in the Dallas Morning News.

Incredibly, modern-day public interest activists in Ohio and elsewhere may actually enjoy less free speech liberty than did Upton Sinclair when he wrote his great muckraking novel, The Jungle (1906). Today, Sinclair’s broadside against the meat-packing industry would surely trigger a food-disparagement lawsuit, however unmerited.

Contest "Veggie-Libel" Laws

At bottom, and true to the spirit of New York Times v. Sullivan (1964) and its progeny, noncommercial statements about food and food safety represent a vital part of the political discourse of our times. The public interest in hearing and evaluating such information cannot be discounted. Hence, what is needed is more public discussion and debate about food safety, be it about "mad cow" disease or olestra or pesticide-tainted foods. That is just as true today as it has been in the past when debates were waged over matters such as fat content in milk, cholesterol in eggs, and nitrite in bacon. Food-disparagement laws run counter to this tradition of open discussion by diminishing the amount of information in the marketplace of ideas. Where the First Amendment marketplace invites viewpoint diversity, the food-disparagement statutes demand scientific certainty. Ideas are not to be tested, only scientifically confirmed by a court of law. Worse still, the continued existence of these laws can only encourage other industries — e.g. the dairy, cosmetic, alcohol, and auto industries — to push for similar laws to protect their products.

The Oprah ruling must not cloud the ever-important need to contest these laws. Every attempt must be made to challenge the constitutionality of food-disparagement statutes. Equally important, a vigorous campaign to repeal these statutes must begin with the combined support of civil liberties, consumer, health, food, environmental, and media groups, and all others concerned about public health and safety and the future of the First Amendment. To this end, a campaign led by Consumers Union activist Reggie James has just been launched to repeal the Texas law. (An ABCNews.com non-random poll conducted shortly after the Oprah verdict revealed that respondents believed, by nearly a 2-1 margin, that veggie-libel laws are "wrong and should be repealed.")

The true index of freedom is the degree to which a society allows its citizens, rich and poor alike, to participate without trepidation in that public dialogue so essential to democratic self-rule. By that measure, food-disparagement laws are unworthy of a free people.

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