Defaming cattle or damaging democracy?

Wednesday, January 7, 1998

Oprah Winfrey talks for a living. But for the moment she is having to let
lawyers do the talking for her. A lawsuit filed under a new Texas law seeks to
punish her for badmouthing beef and a federal judge won't even let her talk
about the suit on her show.


If America's reigning talk-show queen loses her showdown with Texas cattleman
Paul Engler, the millions of Americans who tune in to Oprah for edification and
entertainment may find her muzzled on important issues concerning the quality
and safety of the food we put on our tables.


More important, the rest of America — consumer groups, health groups,
lawyers, legislators, journalists and individual citizens — will become
uncharacteristically timid when it comes to discussing or expressing an opinion
about what they eat.


Engler and other plaintiffs have sued Winfrey, her production company and one
of her guests, charging that comments on her show last April about mad-cow
disease hurt the cattle business. The suit was brought under a statute that
allows the producers of food and other agricultural products to haul into court
anyone they feel has defamed or libeled their products. Thirteen states already
have passed these food defamation laws and a number of others are considering
them.


There is a lot at stake for everyone involved, including ordinary
citizens.


For the people who produce our food, trust in their products is essential.
Criticism can pack a wallop. A 1989 “60 Minutes” broadcast about possible bad
effects of a chemical used on apples staggered the apple-growing industry, which
lost millions in the ensuing “Alar scare.” Cattle prices dropped precipitately
after the Oprah Winfrey show on mad-cow disease. Naturally, the food and
agriculture industries want to protect themselves against such catastrophes.


For the people who consume food, trust is paramount, also. Their confidence
depends in large measure on having maximum access to information about food and
the freedom to engage in dialogue and debate about the quality and safety of
that food. Bad food can mean that people get sick or die.


Such issues permeate contemporary public discourse — with good reason. At a
time when their food comes to them from a distribution system that stretches
around the globe, Americans want to know where their food is coming from, how it
is processed, and who's making sure that it's safe.


The daily news serves up an unappetizing menu of concerns: sickness and death
from e. coli and salmonella, toxic organisms in fishing waters, genetic
engineering of plants and animals, antibiotics in livestock drugs and feed,
pesticides, fertilizers, irradiation, and a host of others.


To keep the marketplace calm in this environment, the agriculture industry
and its allies mount public relations and advertising campaigns and pressure
state legislatures to enact food-defamation laws. And they are prepared to go to
court. In addition to the cattlemen's suit, emu ranchers have sued Honda for a
commercial that made fun of the large Australian bird that is being marketed for
its meat, oil and hide.


And no doubt, many poultry farmers and fishermen in Maryland, who would like
more control over public discussion of the pfiesteria problem in local waters,
are watching the Oprah Winfrey case closely. As are others. This case is the
first test of the constitutionality of food defamation laws.


The concerns raised by these laws are many and large:



  • They are similar to British laws that make it simpler to silence critics and
    activists.
  • They can be turned to the same purposes as Strategic Lawsuits Against Public
    Participation — SLAPPs — commonly used to stifle public opposition to
    development.
  • They would make it easier to defame food than to defame people.
  • They include broad language with undefined terms about the dissemination of
    “false information,” meaning that the defendant must prove that the information
    did not deviate from “reasonable and reliable scientific inquiry, facts, or
    data.”
  • They are not as specific as current libel laws about who has standing to
    sue.

In sum, these laws raise significant constitutional questions and threaten
the First Amendment freedoms of speech, press, and the right to bring
controversial issues to the attention of government officials.


If these laws had been in place 25 years ago, it is doubtful we would know
what we do today about tobacco and smoking.


If the courts uphold the constitutionality of these laws, then the reputation
of food products and processes will have precedence over the health and safety
of the people.


If the cattlemen prevail over the talk-show host, then fragile First
Amendment rights are further imperiled.


It is one thing to assert the right to protect the reputation of cattle or
cauliflower. It is quite another to usurp the right of every American to engage
in robust debate about issues that touch their lives so frequently and
intimately.