Oprah's battle with beef ranchers became
First Amendment cause celebre
By David Hudson
First Amendment Center
Oprah Winfrey's battle with Texas ranchers over
comments made on her show about "Mad Cow Disease"
became a headline-grabbing defamation case. Given Winfrey's
incredible popularity, the case attracted worldwide attention.
"It was such a big case because of who Oprah was and
also because it dealt with such an important matter of public
concern food safety," says Gregg Leslie, legal
defense director for the Reporters Committee for Freedom of
In March 1996, British health authorities announced that
scientists had linked the consumption of beef with "Bovine
Spongiform Encephalopathy (BSE) or "Mad Cow Disease."
This postulated link between the consumption of beef and
brain disease caused great panic in Britain. The panic spread
to America via one of America's most popular personalities
One month later, the "Oprah Winfrey Show" aired
its "Dangerous Food" episode, featuring comments
from vegetarian activist Howard Lyman, who believed that "Mad
Cow Disease" could cause an epidemic in America bigger
On the show Oprah said she was "stopped cold from eating
another burger." The show apparently had a devastating
impact on cattle prices and sales.
On May 28, 1996, Paul F. Engler and Cactus Feeders Inc. sued
Winfrey in state court on several theories, including claims
under the state's food-disparagement or veggie-libel law,
called the Texas False Disparagement of Perishable Food Products
Act, and several common-law tort theories. These included
business disparagement, defamation and negligence.
The case was later moved to federal court and consolidated
with a separate action filed by the Texas Beef Group. The
case proceeded to a jury. Before submitting the case to the
jury, U.S. District Judge Mary Lou Robinson dismissed the
claims under the food-disparagement statute. The district
court judge questioned the applicability of the statute to
live "fed cattle."
Robinson also rejected the plaintiffs' defamation claims
because they could not meet the 'of and concerning' requirement.
"None of the Plaintiffs were mentioned by name on the
April 16, 1996 Oprah Winfrey Show, and it is stipulated that
this program did not mention by name the State of Texas, the
Texas Panhandle, or West Texas," Robinson wrote in her
Feb. 26, 1998, opinion.
Robinson submitted only the plaintiffs' business-disparagement
claim to the jury. In February 1998, the jury rejected the
On appeal, a three-judge panel of the 5th U.S. Circuit Court
of Appeals ruled on Feb. 9, 2000, in Texas Beef Group v.
Winfrey, 201 F.3d 680 (5th Cir. 2000) that the lower court
decision should stand.
The plaintiffs challenged the district court's dismissal
of their claim under the False Disparagement of Perishable
Food Products Act. Passed in 1995, that law provides that
a person can be held liable for damages suffered by the producers
of a "perishable food product" if that person "knowingly
disseminates false information" to the public stating
or implying that the producer's product is not safe for public
The lower court had determined that live cattle did not constitute
a "perishable food product" and that, alternatively,
the defendants did not knowingly disseminate false information
Federal appeals court decision
In February 2000, a three-judge panel of the 5th U.S. Circuit
Court of Appeals also ruled in favor of Oprah in Engler
v. Winfrey. The appeals court determined that even though
the "Oprah Winfrey Show" may have "melodramatized"
the "Mad Cow Disease" scare, the show and its guests
did not defame the beef producers.
"Exaggeration does not equal defamation, the panel wrote,
citing an earlier 5th Circuit decision.
"Lyman's opinions, though strongly stated, were based
on truthful, established fact, and are not actionable under
the First Amendment," the court wrote. "Stripped
to its essentials, the cattlemen's complaint is that the 'Dangerous
Food' show did not present the Mad Cow issue in the light
most favorable to United States beef."
The plaintiffs contended that the district court judge improperly
instructed the jury on the business-disparagement claim. They
argued that the instruction unnecessarily required the jury
to determine that false statements were made specifically
regarding their cattle. They also argued that the trial judge
erred by requiring the jury to find that false statements
were made "of and concerning the cattle" of the
plaintiffs as opposed to the more general "of and concerning
However, the appeals court determined that counsel for the
plaintiffs did not preserve these issues by objecting to the
alleged errors when they were made.
Judge Edith H. Jones wrote a concurring opinion. While she
agreed with and joined in the court's opinion with regard
to the business-disparagement issue, she wrote separately
because she believed that the False Disparagement of Perishable
Food Products Act did apply to live cattle.
"The purpose of the statute's definition is to distinguish
perishable from processed food products, not to eliminate
protection for some of the farmers and ranchers for whom the
statute was intended," Jones wrote.
Many legal experts had hoped that, particularly to the high
visibility of the case and its famous defendant, the lawsuit
would serve as a test case for the constitutionality of food-disparagement
statutes. More than a dozen states have similar veggie-libel
laws and many of them relax the burden of proof imposed on
a traditional defamation plaintiff. The 5th Circuit even acknowledged
The cattlemen's complaints regarding the 'Dangerous Food'
broadcast of the Oprah Winfrey Show presented one of the first
opportunities to interpret a food disparagement statute. The
insufficiency of the cattlemen's evidence, however, renders
unnecessary a complete inquiry into the Act's scope.
The plaintiffs petitioned for en banc review but were denied
in April 2000.
While the court failed to strike down the Texas food-libel
law, the decision still had a discernible impact on the public's
understanding of defamation and the First Amendment.
"It certainly seems to have stopped the enthusiasm for
product disparagement statutes," Leslie said. "I
think the decision taught the public a lot about defamation
law and the First Amendment in general. It taught the public
that even if a statement is wrong, there is an important reason
to allow even false statements to be made on public issues.
There must be breathing space for the First Amendment."
Perhaps Oprah summed it up best herself when she stated:
"Free speech rocks."