Speech on food safety is on trial

by
Ronald K.L. Collins

The following op. ed is from the Baltimore Sun, February 1, 1998, sect. H, p. 1  Ronald Collins is a Takoma Park writer and the co-author of The Death of Discourse (1996). He has written appellate briefs for civil liberties groups and for health and nutrition groups.

    Food is political. What we eat, how much we eat, the contents of what we eat and how our food is prepared and packaged are integral components of contemporary public discourse.

    That's why First Amendment protection is vital to the critic who speaks and publishes on such issues. If that discourse, as full as it may be flawed, is to enter the public marketplace of ideas, it is essential that existing food-disparagement laws be rejected in the courts and legislatures of this land.

    "One hundred thousand cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has 'mad cow' disease, it has the potential to infect thousands. We've not only turned them into carnivores, we've turned them into cannibals." So said Howard Lyman, a former Montana cattle rancher turned vegetarian activist, on television.

What is at stake?

    Is it true? Somewhat true? More to the legal point: Is it scientifically true? For if Lyman cannot demonstrate his claim as a scientific matter, the laws of about a dozen states allow him to be sued for food defamation, which may also include multimillion-dollar punitive damages.

    Reportedly, as many as another 12 states are considering similar laws. Should they pass, in more than half the states in the Union, food speech would be a dangerous form of political speech for food activists and for the media that disseminate their messages.

    That is what is at stake in the Oprah Winfrey trial as it unfolds in the federal courthouse in Amarillo, Texas. Cattle ranchers in that state have sued the Oprah show for an April 16, 1996, broadcast in which Winfrey and Lyman aired their views on meat and mad cow disease. In response to Lyman's charges, Winfrey said: "Now doesn't that concern you a little bit, right here, hearing that?'' The audience cheered. ''It has stopped me cold from eating another hamburger," she added.

    The day after the program, cattle futures prices dropped; it took two weeks for them to recover. A week later, a second Oprah show on mad cow disease featured a cattle industry spokesman. But that was not enough to stay the $10.3 million-plus lawsuit that followed, an action based on a 1995 Texas food- disparagement law.

    Today, in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas a food critic may be held to legal account if he or she asserts that any ''perishable food product or commodity'' is unsafe for human consumption.

    In most states that have enacted these laws, food critics must be prepared to demonstrate that their claims are grounded in reliable scientific facts and data. Basically, the political and legal purpose is to carve out a special law of defamation for the food industry - one benefiting special business interests at the expense of freedom of speech.

Talking About Food & Food Safety

    If the Texas food-disparagement law and others like it survive constitutional challenge, it will become far more difficult to discuss food safety publicly in any significant way, for several reasons:

    First, the scientific evidence standard would discourage many from saying virtually anything about food absent current and documented evidence, which quite often is in the sole possession of the industry being criticized.

    Second, existing food-disparagement laws invite industry libel litigation against food critics. Such critics would routinely have to prepare themselves for costly litigation whenever they speak, regardless of the truth of their claims. The mere threat of such litigation could silence potential critics.

    Third, once the food industry libel lawyers come out in full force, print media outlets would be hesitant to publish articles critical of food. If this were to happen, access to major news media would be severely diminished.

    Fourth, a court victory for the cattle ranchers would invite other industries to seek similar disparagement laws on everything from fast food to alcohol and perhaps in other areas such as auto safety. The result: far less public talk by far fewer people. Such laws would turn the First Amendment's cacophonous marketplace of ideas into a muted marketplace.

    All of this is not to say that crackpots or ratings-hungry TV producers should be able to say anything, no matter how false or how malicious. The point is that in this context scientific proof is better debated in the public square than decided in a punitive damages action. Going to court chills discussion. A wide-ranging debate is not likely to happen when a defendant has been sued for millions and his or her financial fate is in the hands of a judge or jury.

First Amendment Concerns

    The food industry should be subject to a defamation standard approximating that of public figures who sue the media. In other words, liability could depend on a showing of malicious intent to defame or reckless disregard for the truth. If a civil wrong is committed under that standard of law, there is recourse. Special group libel laws favoring industry, by contrast, are antithetical to the First Amendment.

    Consider the silencing effect that food-disparagement laws could have now or in the future. For example, if such laws were in place and were broadly applicable, who would have said anything about the public health dangers associated with any of the following?

•bacteria in meats and poultry
•sulfites in salads
•nitrites in bacon and other processed foods
•cholesterol in eggs
•fat in milk and meat
•food dyes
•pesticide-treated foods
•unpasteurized juices and contaminated grapes

    Food-disparagement laws, if extended, would make it nearly impossible to say a critical word about Big Macs, Double Whoppers with cheese or buckets of fried chicken.

    And what about the campaign to irradiate meat and other foods? The American Heart Association, the American Cancer Society, the Natural Resources Defense Council and many other groups would be subject to lawsuits involving food issues.

    Or what if a state health or food agency issued a policy statement saying public health would be improved if egg consumption was confined to no more than two or three eggs a week? Would state agencies be willing to spend taxpayer money to duel over scientific evidence with the egg industry?

Freedom of Expression & Scientific Determinations

    Freedom of speech should not hinge on the after-the-fact scientific determinations of black-robed judges. Learned Hand stated the principle eloquently more than 50 years ago: The First Amendment ''presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many that is, and will always be, folly, but we have staked upon it our all.'' By that measure, existing food-disparagement laws have no place in the U.S. system of freedom of expression.


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