Shut up and eat everything on your plate

Monday, February 21, 2000

“Free speech not only lives, it rocks!” TV talk show queen Oprah Winfrey exulted after a federal judge dismissed a multimillion lawsuit against her by Texas cattlemen outraged by remarks she and a guest made on one of her shows. That was in February 1998.

Two years later, she has learned the hard way that free speech may rock, but it also costs. A lot.

A few days ago the U.S. Court of Appeals for the 5th Circuit in New Orleans handed Winfrey yet another legal victory, upholding the previous ruling. Ironically, the more she wins, the more she loses.

The court case centers on an episode of “Oprah” called “Dangerous Food.” Among other things, the show talked about mad-cow disease, with Winfrey at one point saying that she had been “stopped cold from eating another burger.” Within an hour of the broadcast, cattle prices in certain markets began to drop precipitately and stayed depressed for nearly three months.

Cattlemen were up in arms and eventually sued the talk show host, her production and syndication companies, and one of her guests, activist Howard Lyman. And so it began.

That was in April 1996. Since then, Winfrey has had:

  • To air a follow-up show a week later to placate the cattle industry.

  • To move her show from Chicago to Amarillo for six weeks of trial.

  • To endure the expense and drain on resources and energy of 45 months of litigation that has produced thus far 75 volumes of court records, 5,666 pages of testimony, and millions of dollars in expenses.

  • It is not over. A parallel state lawsuit remains in the original federal trial court, awaiting disposition. The cattlemen likely will appeal the 5th Circuit ruling. The litigation could go on for years.

    How can Oprah Winfrey be hauled into court for exercising her First Amendment right to discuss a vital public issue?

    Because of the existence of food-disparagement laws. Essentially, these so-called “veggie libel laws” make anyone who says something critical of food products vulnerable to a lawsuit or — in the case of Colorado — criminal prosecution. Farmers, ranchers and the agri-chemical industry have pushed these laws hard in the last few years. So far, 13 states have them. Legislatures in Arkansas, Iowa, Maryland, Missouri, New Hampshire and Vermont have taken up and rejected veggie-libel laws in recent sessions. An effort to repeal the Texas law last year fell short. But for the first time since 1990, no veggie-libel laws have been introduced in the current sessions.

    There seems to be no need. Oprah Winfrey’s show was in Chicago. But she was hauled into court in Texas. Because agricultural products cross state lines with such frequency, practically anyone anywhere in the United States is subject to suit. These laws have done the job they were intended to.

    A citizens group in Ohio had to stop its advocacy on behalf of safer food to fight a threatened lawsuit.

    A carmaker had to pull its ads from television after emu farmers complained that their birds had been libeled.

    A Texas extension agent was threatened with a lawsuit for being critical of a commercial grass seed in his newsletter to farmers and ranchers.

    Actor Alec Baldwin told The New York Times that he believed his proposal for a documentary on “The History of Food” was turned down because it dealt with pesticides, herbicides and disputed beef-raising practices.

    The publisher of J. Robert Hatherill’s book, Eat to Beat Cancer, excised from his manuscript long passages about growth hormones administered to dairy cattle and other material that might be targeted for suit under veggie-libel laws.

    A book called Against the Grain: Biotechnology and the Corporate Takeover of Your Food was called back from the printer after Monsanto warned that it might disparage a herbicide called Roundup.

    There is no way of knowing, of course, how many authors, researchers, journalists or citizen activists have remained silent about food safety, worried about lawsuits that would cost them dearly in resources, time and energy, even if they were speaking the truth.

    Federal Judge Mary Lou Robinson wrote in the Winfrey case: “It would be difficult to conceive of any topic of discussion that could be of greater concern and interest to all Americans than the safety of the food that they eat.”

    Even so, there will continue to be a chill in public discourse on food health and safety issues until the courts rule on the constitutionality of the veggie-libel laws. The trial and appeal judges in the Winfrey case declined to take that opportunity. The appeals court wrote that the case “presented one of the first opportunities to interpret a food disparagement statute. The insufficiency of the cattlemen’s evidence, however, renders unnecessary a complete inquiry into the Act’s scope.”

    The judges also wrote: “When Ms. Winfrey speaks, America listens.”

    What remains unspoken but quite evident is that when Ms. Winfrey is punished unmercifully for engaging in protected speech, Americans shut up.

    Paul McMasters may be contacted at