The High Costs of Free Speech

Robert Miraldi

Robert Miraldi chairs the Communication Media Department at SUNY. You can write to him at CSB, New Paltz. N.Y., 12561 or e-mail him at:   This article originally appeared in Poughkeepsie Journal-Gannett Newspapers, April 5, 1998 and is reprinted with the permission of the publisher.

March, the month of weather and basketball madness, finds us watching the Censors, who have money and power, going up against the Free Speechers, who have the Constitution on their side but not enough public support.

Even when the Free Speechers win, it seems, they can lose. Take the case of Oprah Winfrey, the well known talk show doyenne who was sued for defamation by the beef industry. Seems the beef folks were unhappy that an Oprah teammate made "trash talked" beef which is high in fat and has been linked to "mad cow" disease in Great Britain. Sounds like something the fans should be able to discuss.

But the Censors used a recently passed law that allows an industry -- not a person or named company -- to go into court, and seek to silence the other teams. No trash talk allowed. Some call it "veggie-libel" after the laws in 13 states that permit growers to sue to protect the good name of their avocados.

So, Oprah, a good witness with money of her own, used a full-court press to convince a jury (on the Censors' home court, Texas) that Free Speech was more important than Censorship. But Oprah's victory is empty. When an industry can haul a speaker into court for merely discussing food safety, the result, inevitably, is silence of the next speaker.

Ronald Collins, director of the food-libel law project for the Center for Science in the Public Interest, a non-profit national consumer group, points to the "extraordinary financial and legal resources" needed to defend such lawsuits. "Few organizations, and fewer individuals, can afford to speak out if the cost of such speech is as high as in the Oprah case." [Legal Times, 3-23-98]

To put it in sports parlance, sometimes a team uses tactics that might not bring immediate victory, but set up a later win. Sharp elbows in basketball; brush-back pitches in baseball; hard hits on the quarterback in football. What they do is make a team encounter.

Translation: Oprah's producers, fearing a costly lawsuit, may not now cast aspersions on poultry (watch for e-coli); or fish (high bacteria); or fruits (sprayed with chemicals). After all, Oprah's defense cost between $500,000 and $1 million. The flag of freedom was waved after this case, but surrender will come quietly in the form of a pliant and meek press.

Result: "The Oprah case actually helps industry at the expense of free speech values," writes Collins. And the beef packers and industry advocates know it. That's why they press more cases and seek more legislation. Their defense is really an attack.

Meanwhile, the Oprah case is on appeal; three other "veggie-libel" cases are under way; and a dozen states are contemplating similar laws (not New York).

"If these laws had been in place 25 years ago, it is doubtful we would know what we do today about tobacco and smoking," comments Paul McMasters, ombudsman for the Freedom Forum. [Legal Times, 3-23-98] Nor would Upton Sinclair's famous 1906 expose of the beef industry, The Jungle, have survived. Sinclair would have his pants sued off today.

The principle here is simple: With food coming to market from all over the world, Americans have more reason than ever to be watchful. And that demands a wide open discussion of food quality. "Maximum information about food," is how McMasters puts it.

Inevitably in discussion some errors will be made, but truth will emerge in the debate. Industry need not worry; they have plenty of public relations-advertising resources and expertise to participate in -- and dominate -- the discussion. Of course, what industry wants is a one-sided discussion -- with only their side heard.

You win the game by forfeit if the other team does not show up. The real losers, however, are the fans who don't get to see a game. Translation again: consumers lose when the media is afraid to give a forum to food critics. Get rid of "veggie libel" laws. Democracy -- and our stomachs -- deserve better.

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