More Libel Laws,
More Abridgements of Free Speech

by Ronald Collins

It is well-worn but still bears repeating: “debate on public issues should be uninhibited, robust, and wide-open.” Justice William Brennan’s maxim represents a free speech baseline. It is both an ideal to which to aspire and a criterion by which to judge. Unfortunately, the libel laws of 13 states mock the ideal and violate the rule of New York Times v. Sullivan (1964), the case in which Justice Brennan issued his famous declaration of freedom.

The laws to which I refer are state food-disparagement statutes. Under those laws, it is enough to disparage a general product — e.g., apples. There need be no reference to a particular brand of apples or producer of apples. Once such a product is disparaged, virtually anyone who trades in that product may go to court and sue. And a disparaging statement is “false” unless it comports with “scientific evidence.” Thus, public speech may give rise to private litigation unless every detail can be squared with science . . . as we know it. (Imagine what that standard would have done to reporting on tobacco.) Now once the plaintiffs line up and allege a breach of scientific truth, they may then sue for general damages, court costs, and even punitive damages. In some jurisdictions plaintiffs (but not defendants) may also collect attorneys’ fees if successful. Finally, and reminiscent of 18-century British law, in Colorado mouthing a disparaging statement about an agricultural product is a criminal matter.

The potential to punish protected speech is real and substantial. Example #1: Emu ranchers in Texas charged that their fowl was an agricultural product that was disparaged by a tongue-in-cheek Honda TV commercial — “Emus, Joe. It’s the pork of the future.” The emu ranchers’ $75,000 lawsuit was ultimately dropped, but it took several months to dispose of the case. Example #2: Consider the case of an Ohio public interest group and its director who endured a year’s worth of anxiety in a food-disparagement lawsuit — this, for making true statements about back-dated eggs. Example # 3: Recall the Oprah lawsuit, the one in which Texas cattlemen took exception to their meat being criticized? Contrary to popular belief, the case is not over. Thus far, it has taken thirty-plus months of litigation, seventy-five volumes of court records, 5,666 pages of testimony, and millions of dollars in attorneys’ fees, largely to defend against the claim that live cattle are covered by the Texas statute. Never mind that the statute itself is clearly unconstitutional, an issue that has yet to be reached. (The case is pending in the Court of Appeals for the Fifth Circuit). In these cases and others, the cost of “winning” has been high, too high to encourage robust expression.

While no food-disparagement lawsuit has ever won in any trial or appellate court in the nation, the impact of this body of law is notable. Consider the following: (1) the food-disparagement laws of the 13 states have a national impact and interfere with protected interstate expression. (Oprah, who is based in Illinois, was sued in Texas); (2) these laws could well prevent publishers from publishing, authors from writing, and reporters from reporting on matters of great public concern, such as the safety of agricultural chemicals, a topic discussed in Rachel Carson’s Silent Spring (1962); and (3) such laws discourage scientists, public interest groups, and others from first investigating and then disseminating information concerning everything from pesticides in produce to polluted fish.

A concerted effort is under way to enact these laws in other states. (Most recently, one of these bills was defeated in Arkansas, thanks in no small measure to C. Dennis Schick of the Arkansas Press Assoc.) In the states where they exist, it is difficult to challenge such statutes absent a food-disparagement lawsuit. Thus, there is a pressing need to repeal the laws or at least to amend them to comport with the First Amendment. (Idaho’s law, for example, has several important free speech safeguards.)

Food-disparagement laws represent a dangerous anti-free speech precedent. If this can be done with food, it could extend to other products, too, ranging from cosmetics to computer software. In such a world, the coin of the First Amendment would be is worth little.

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