Senator Kevin Smith
Representative Jim Milum
Arkansas General Assembly

March 12, 1999
Re: Constitutional Opposition to HB 1938
Proposed Food Disparagement Bill

Dear Senator Smith and Representative Milum:

I respectfully write to express my opposition to House Bill 1938. I have reviewed the proposed measure and am confident that it would be declared unconstitutional should it ever become law and be tested in the courts.

Introduction and Qualifications

As a scholar I have actively followed the national debate over food disparagement legislation. I am also familiar with Arkansas law in this field. For five wonderful years I taught constitutional law and torts at the University of Arkansas-Fayetteville, before leaving Fayetteville to become the Director of the Institute of Bill of Rights Law at the College of William and Mary. I am currently the George Allen Professor of Law at the University of Richmond. I have published extensively in the First Amendment area, including the treatise Smolla and Nimmer on Freedom of Speech, the treatise Law of Defamation, and the books Suing the Press: Libel, the Media and Power, and Free Speech in an Open Society, which received the 1992 William O. Douglas Award as the most distinguished monograph on freedom of speech. I am actively involved in First Amendment litigation throughout the United States.

While I understand the motivation behind HB 1938, I am firmly convinced that the proposed law, in its overall design and in many of its particulars, violates the free speech principles of the First Amendment, and Article II, § 6, of the Arkansas Constitution. Here are my principal concerns:

I. HB 1938 Violates Constitutional Standards
Applicable to Falsehood and Opinion

Section 2 (b) declares a statement to be false (thereby subjecting the speaker to compensatory and punitive damages) if it does not comport with “reliable scientific facts and reliable scientific data.”

It is settled that the Constitution imposes its own definition of falsity on the states. See Philadelphia Newspapers, Inc. v Hepps, 475 U.S. 767 (1986); Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990). It is equally settled that courts must apply, on a case-by-case basis, the constitutional standard, reaching an independent judgment as to whether it has been satisfied. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989); Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) Legislatures may not declare, through legislative presumptions or evidentiary restrictions, that certain types of speech inherently violate applicable First Amendment standards. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) A legislature, in short, cannot “pre-certify” speech as constituting a “clear and present danger,” or as “false,” for First Amendment purposes. See Herndon v. Lowry, 301 U.S. 242, 258 (1937). If this were not the rule, a legislature could, by the simple expedient of building evidentiary standards or presumptions into the law, effectively supplant constitutionally imposed requirements.

The “reliable scientific facts and reliable scientific data”requirement contravenes these basic principles, and contravenes settled First Amendment doctrine. In the Hepps and Milkovich cases the Supreme Court made it clear that the plaintiff bears the burden of proving that the defendant has made a factual statement that is false. No legislature is free to tinker with or alter those constitutional burdens. For constitutional purposes, a statement that does not comport with “reliable scientific facts and reliable scientific data” may nevertheless be constitutionally protected as an expression of opinion, or as “rhetorical hyperbole,” precisely because scientific data is in dispute or in conflict. See, e.g., Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6 (1970). Indeed, a scientific statement may be true for constitutional purposes even though it may be a minority scientific view. Truth and falsity are, in short, free-standing constitutional concepts subject to carefully calibrated First Amendment rules that cannot be artificially constricted or fettered through restrictive legislative definitions.

II. HB 1938 Violates the “Of and Concerning”
Requirement of the First Amendment

Section 2 (a) of HB 1938 abridges freedom of expression by permitting generalized liability for disparagement of any agricultural/aquacultural product, as distinguished from a particular product sold by a particular producer. This contravenes ancient common-law principles, and violates the Constitution.

It is a well-settled that to be valid, a law redressing reputational injury (personal or commercial) must be able to support a “jury’s finding that the allegedly libelous statements were made ‘of and concerning’ the plaintiff.” New York Times Co. v. Sullivan, 376 U.S. 254, 288 (1964). The Sullivan Court explicitly disapproved generalized claims of libel. Id. at 292. Such claims are “constitutionally defective” because they cannot support a jury finding that the purportedly libelous statements were “of and concerning” the plaintiff. 376 U.S. at 288.

In Rosenblatt v. Baer, 383 U.S. 75 (1966), the Supreme Court reinforced this principle, making it clear that there must be specific compliance with the “of and concerning” requirement: “To the extent that the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous.” Id. at 82. The same principle has been applied to commercial disparagement cases. See Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 513 (1984);Unelko Corporation v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990), cert. denied, 499 U.S. 961 (1991).

Courts throughout the country have repeatedly emphasized the controlling importance of the “of and concerning” specificity requirement. See e.g., National Nutritional Foods Association v. Whelan, 492 F. Supp. 374, 377, 380 (S.D. N.Y. 1980); Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 805-806 (Fla. Dist. Ct. App., 1997); Kentucky Fried Chicken of Bowling Green v. Sanders, 536 S.W. 2d 8, 9 (Ky. 1978). Echoing the concerns of the Sullivan Court, the California Supreme Court in Blatty v. New York Times Co., 42 Cal. 3d 1033, 1044, 728 P.2d 1177, 1183 (1986), cert. denied, 485 U.S. 934 (1988), declared: The “of and concerning” or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt.” (emphasis added)

III. The Fault & Damages Provisions of HB
1938 Violate the First Amendment

Sections 2 (a) and 3 (a) allow for an award of punitive damages upon a finding of mere negligence. On this issue there is simply no room for debate or interpretation regarding existing constitutional doctrines. It is well-entrenched law that punitive damages may not be awarded to redress reputational injuries arising from allegedly defamatory speech on matters of public concern unless the plaintiff proves the existence of “actual malice,” a constitutional term-of-art requiring knowledge of falsity or reckless disregard for truth or falsity. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).

HB 1938 allows for a negligence standard of civil liability for punitive damages in instances where the expression in question involves matters of public concern. Thus, whether or not, in any specific case, a given agricultural product or producer were deemed to be a public figure or a private figure, the punitive damages provisions of the bill are squarely unconstitutional.

Moreover, it is very likely that in many cases involving the disparagement of agricultural products, the corporate plaintiff would be deemed by the court to be a public figure. In public figure cases, even the award of compensatory damages must be supported by a finding of actual malice.

IV. HB 1938 is Unconstitutionally Vague

Section 2 (b) of HB 1938 is unconstitutionally vague, an infirmity that violates the First Amendment and the Due Process Clause. Wholly aside from the many “substantive” violations of the First Amendment created by the bill, the proposed statute is “procedurally” flawed in its vagueness. HB 1938(2)(b) does not define the difference, for example, between scientific “facts” and “data,” let alone scientific inquiry. This legislative standard is fundamentally inconsistent with constitutional requirements for precision in drafting legislation that restricts freedom of expression. What, exactly, counts as “scientific evidence”? What are the criteria for determining when scientific evidence is deemed “reliable”? How substantial must the scientific evidence be? Is reliance on government data enough? In order to be deemed true, must a statement be supported by the preponderance of scientific evidence? Or does mere reliance on any amount of “reliable” scientific evidence suffice? HB 1938 nowhere answers these basic definitional questions, and is thus unconstitutionally vague. See e.g., Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 620 (1976); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); NAACP v. Button, 371 U.S. 415, 433 (1963); Houston v. Hill, 482 U.S. 451, 465 n. 15 (1987). See also Speiser v. Randall, 357 U.S. 513, 526 (1958); Connally v. General Construction Company, 269 U.S. 385, 391(1926); Kolender v. Lawson, 461 U.S. 352, 357 (1983).


There are yet other objections to HB 1938, but in the interest of not wearing my welcome too thin, I will not belabor them here. In addition to constitutional concerns, laws such as these have not fared well in other states. Experience has proved that the provisions in these laws for attorney’s fees and court costs for successful plaintiffs (but not for a successful defendants) have encouraged frivolous and at times seemingly bizarre litigation, thus prompting repeal efforts such as the one currently underway in Texas. (See Collins & Bloom, National Law Journal, March 8, 1999, A-21.)

The old saw, “If it ain’t broke, don’t fix it,” is both an exercise in common sense, and in the field of constitutional law, an admonition to caution.

Arkansas already has a well-developed law of defamation, carefully honed by the Arkansas Supreme Court and by federal courts applying Arkansas state law, and finely tuned to comply with the requirements of the state and federal constitutions. See, e.g., Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). That existing law is as available to agricultural producers as it any other business or individual in the state. That law is fine, ’as-is.” That law is already known to be constitutional. There is no sense in creating a special law, filled with constitutional infirmities, for one industry alone. It is bad public policy, and doomed to fail when tested in court.

Arkansas may rightfully take great pride in the strength of its agricultural industry, and the high quality of its agricultural products. There is a perfectly natural and understandable impulse to enact laws that seek to protect the reputation of this industry. Our nation, however, has staked its fortune on the abiding value of free and open markets. We have an open marketplace for commerce. We have an open marketplace for speech. The same spark of entrepreneurial liberty that drives the robust engine of free enterprise informs the ideal of expressive liberty that drives the marketplace of ideas.

Arkansas’s agricultural goods must compete in the open market if they are to be successful. That market is not simply open to the free trade of goods, it is open to the free trade of information and opinions about those goods.

I respectfully urge you and your colleagues to reject HB 1938. Thank you for your kind indulgence and consideration.

Sincerely yours,

Rodney A. Smolla
George Allen Professor of Law
University of Richmond, School of Law