Marshall-Wythe School of Law
P.O. Box 8795
Williamsburg, Virginia 23187-8795
Rodney A. Smolla
Arthur B. Hanson Professor
Direct Dial: 757/221-3808
Direct FAX: 757/221-3775
Letter of Support from Rodney A. SmollaApril 27, 1998
I applaud the efforts of the FoodSpeak Coalition to oppose existing and proposed food-disparagement laws. Such laws are an affront to the American free tradition.
Producers of agricultural commodities and many trade associations and other industry groups who represent them are not shy about entering the marketplace of ideas. Nor should they be. First Amendment law protects, in various ways, the rights of these advertisers, including the right of agricultural producers to tout the safety, quality, and efficacy of their products, and the right to campaign for laws favorable to their industries. Consumers are constantly exposed to such commercial and political messages.
Having thus entered the marketplace with gusto, such agricultural producers are "public figures," in the parlance of First Amendment law. As public figures, they and their products are subject to the special First Amendment principles designed to promote wide-open and robust debate on issues of public concern. Public figures may not recover for defamation unless they prove that a factual falsehood has been established against them, and that the falsehood was published with knowledge of its falsity, or with reckless disregard for its truth or falsity.
Food-disparagement laws dilute these and other First Amendment standards and/or undermine the spirit of the principles underlying them. Some blur the line between expressions of opinion and false statements of fact. Others permit liability to be predicated on mere negligence, as opposed to knowing or reckless falsity. Still others appear to shift the burden of proof from the public figure plaintiff to the speaker.
As a matter of free speech policy, it is certainly objectionable for any industry (such as the agricultural industry) to have its own brand of defamation law, especially when such self-serving laws depart from accepted common law standards and do so in unconstitutional ways. And if other industries followed the example set by the food-disparagement laws, public and press comment on consumer matters would be diminished considerably. Defamation law ought not to prefer one industry over another.
The genius of the American free-enterprise system is our abiding national faith in open markets and free competition. Producers of agricultural goods must compete successfully in the economic marketplace in order to thrive. So too, the genius of the American First Amendment is our abiding national faith in open public discourse and competition in the marketplace of ideas.
Issues concerning public health, nutrition, and diet all play a prominent role in contemporary discourse. The products of agricultural goods are no more entitled to an exemption from the rough and tumble of public debate about their products than they would be entitled to an exemption from the fierce competition within the economic markets in which they sell those products.
Food-disparagement laws are uncommonly silly, and undoubtedly unconstitutional.
We owe a debt to Oprah Winfrey for her resolute refusal to buckle when sued for food disparagement. Oprah Winfrey (and Howard Lyman, too) stood up and endured the strain and drain of protracted litigation. She placed her prestige and popularity on the line for principle.
The FoodSpeak Coalition has now picked up the standard. The Coalition will devote itself to the maintenance of free speech by opposing food-disparagement laws on all fronts. It is a good fight and one that I whole-heartedly support and join.
Rodney A. Smolla,Arthur B. Hanson Professor of Law