Veggie Libelous: Free Speech at Stake in Oprah Winfrey Trial
By Michele Simon
Originally distributed by Knight Ridder Newspapers, January 1998.

There will be no welcoming committee for Oprah Winfrey in Amarillo, Texas, the heart of cattle country, when she brings her show there at the end of this month. Instead, Winfrey will be facing the $12 million lawsuit brought against her by six cattle feeder corporations. She and former cattle rancher Howard Lyman are being sued for statements they made regarding the potential dangers of mad cow disease in the U.S. beef supply, which stems from the practice of feeding rendered animal remains to livestock.

The basis for the suit is a recently enacted law in Texas (with similar laws passed by 12 other states and pending in at least nine additional states) known as food disparagement statutes and dubbed "veggie-libel laws" or "banana bills" by the press. Such light-hearted treatment of a serious threat to free speech is unfortunate because it diverts attention from the proponents of these laws and their underlying motivations.

These new laws allow industry to recover damages from individuals making false statements about perishable food products. But just what is considered "false" is painfully unclear, resulting in the freedom of speech being chilled. Industry's game plan is to quietly go state-by-state, a common tactic when it comes to patently unconstitutional proposals. This strategy avoids a national debate and preys on the loyalties of local constituencies of state legislatures.

Who is behind the passage of these laws? First, there are the obvious proponents — the meat, dairy and produce industries. In Texas, testifying in support of the bill were representatives of the Texas Farm Bureau, the Independent Cattlemen's Association of Texas, the Texas and Southwestern Cattle Raisers Association, the Texas Cattle Feeders Association and the Texas Agricultural Cooperative Council. Testifying against the bill was one representative of consumers Union, hardly enough muscle to match an entire industry.

Just as interesting a question is: Who else besides the suppliers of meat and produce is behind the proliferation of these laws? The very industries that have at least as much to lose — those that supply the feed and chemicals to these industries. Indeed, the plaintiffs in the Texas lawsuit are six Texas cattle feeding companies and are being led by Paul Engler, owner of Cactus Feeders, one of the largest U.S. cattle feeding operations.

A national trade organization, the American Feed Industry Association (AFIA), developed the model legislation — which explains why several of the laws are strikingly similar in language. Curiously, the organization making the text of the model law available is actually the Animal Industry Foundation (AIF), a 501(c)(3) "education foundation" and according to their cover letter, "was in no way responsible for the development of the model bill or any of the legislation pertaining to this or any other issue." They sound a bit defensive, and understandably so, because they share the same mailing address with AFIA and could lose those their tax-deductible, non-profit status by engaging in political and lobbying activities.

The President of the American Feed Industry Association, David Bossman, in his "Reflections on a Good Year," ponders about the use of animal waste products in feed, which "took a higher profile than any of us really wanted or anticipated." He predicts that "1998 will probably be a year in which we learn more about how to utilize animal manure" and asks: "To feed or not to feed? …Who should have jurisdiction, state, fed or local? Lots of manure issues will be up front in '98." Yes, but only those dictated by industry, thanks to the chilling effect on everybody else. Is this an organization that should be dictating public policy?

The other major stakeholder is the chemical industry, supplier of massive amounts of pesticides for crops. They have a lot to lose from people making statements about the potential dangers of chemicals on our food. It was the 1989 "Alar on apples scare" piece on 60 Minutes that prompted the supposed need for these laws in the first place. The chemical industry's influence is also obvious from parallel state laws being proposed which would prevent government environmental agencies from educating consumers about alternative, safer cleaning and pesticide products.

These laws are nothing more than an effort by big business to chill the free speech efforts by those seeking to raise legitimate questions about the safety of our nation's food supply. And by choosing to sue Oprah Winfrey, a very visible defendant, they will probably achieve that goal, regardless of the outcome in this case. Most legal experts agree that that these laws will not hold up in court. A law review article published in the prestigious Harvard Journal on Legislation concluded that, "these restrictions on speech about the quality and safety of our food are dangerous and unconstitutional." However, by the time the case winds through the court system, the chilling effect will take hold. According to Emory University law professor David J. Bederman: "Stories get spiked every week. The evil of these laws is that they do precisely what they were intended to do, which is to chill speech."

This is exactly what industry had in mind. And given the proliferation pesticides, growth hormones, radiation and genetic engineering in our food supply, it is critically important to industry to gain control over public outcry. Unfortunately, it is even more important, given the unknown and potential hazards of these methods, for the public to maintain its First Amendment right to raise legitimate safety concerns.