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Veggie-libel laws chill free speech, say panelists

David Hudson
First Amendment Center

11.16.98

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A new body of libel law that has cropped up in 13 states stifles public debate on food-safety issues and threatens free-speech rights, said speakers at a Saturday panel discussion held at the First Amendment Center.

Members of the panel organized as part of the Society of Professional Journalists' Freedom of Information Conference expressed their constitutional concerns with so-called food-disparagement, or veggie-libel, laws. These statutes allow farmers and agribusiness companies to sue individuals or groups who make allegedly false or disparaging comments about certain agricultural products.

The issue received national attention recently when a group of Texas ranchers sued Oprah Winfrey for remarks made on her television program linking hamburger and mad cow disease.

Agriculture businesses first began lobbying for special libel protection after a federal district court in 1990 dismissed a libel lawsuit brought by a group of Washington apple growers against CBS for comments made on 60 Minutes about the harmful effects of the pesticide Alar.

Now such laws have been enacted in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.

No court has yet ruled on the constitutionality of a food-disparagement law. However, four of Saturday's five speakers left no doubt that they believe the laws violate First Amendment principles.

"Veggie-libel laws violate the general First Amendment prohibition against the singling out of a particular type of speech," said Bruce Johnson, a Seattle-based attorney who defended CBS in the Alar case. "These laws create a cause of action against statements (denigrating) a particular product and pose a tremendous risk for the typical public interest group, reporter or citizen." Johnson said.

"It is ironic that in the 1960s Lenny Bruce was busted for talking about oral sex, but that in the 1990s someone can be busted in Colorado for talking bad about oranges," observed Ronald Collins, director of the Foodspeak Coalition, an organization formed to fight veggie-libel laws.

Amy Simpson, director for the Ohio Public Interest Research Group, a nonprofit consumer watchdog group, noted that: "Veggie libel laws invite SLAPP suits and can be used to silence anyone who criticizes a food product."

Simpson should know. Last year, she was sued by Buckeye Eggs for making comments at a press conference about her group's report on the re-packaging and re-dating of old eggs.

"Before being sued, I didn't even know these laws existed," Simpson said. "I was sued for making the following statement: 'We have no idea how many if any consumers have been made ill by eating these eggs.'"

Buckeye Egg dropped its lawsuit earlier this year. Even so, Simpson said, the prospects of facing such a lawsuit are "incredibly intimidating."

"Veggie-libel laws muzzle debate about the important issue of food safety," said Paul McMasters, Freedom Forum First Amendment ombudsman and moderator for the panel. "Why does the food industry need its own body of defamation law?" asked McMasters.

Ronald Hibbert, a Washington, D.C., attorney who has represented the food industry was the lone panelist defending the laws.

"The argument flows from the reality that these agricultural products are perishable and often don't have a brand-name or corporate identity.," Hibbert responded. "These laws basically solve a standing problem to make sure that producers of these products can take action for statements that don't directly mention their particular corporate name."

But Collins pointed out that the laws do more than relax standing requirements. "Many of these statutes change the burden of proof and impose punitive damages," he said. One of the statutes, the Alabama law, basically imposes a measure of strict liability (liability without fault) and flagrantly violates the First Amendment, he said.

"Some of the laws provide for attorneys fees to the agricultural plaintiff if he or she prevails, but don't allow defendants to recover attorney fees if they prevail," Collins said.

Johnson criticized the fact that the laws change the normal burden-of-proof requirements in traditional libel cases. Under a traditional case, the plaintiff, or individual suing, must prove that the statement is false. Not so under some of the veggie-libel laws. "Many of these laws presume a statement is false if it is not based upon reasonable and reliable scientific inquiry," Johnson said. "These laws present a problem because we are going to have juries debating scientific issues."

Johnson also said that some of the veggie-libel laws provide for "unlimited damage awards" and will create spiraling legal costs for those sued.

"These laws reflect the perception of the average farmer and rancher that the press doesn't understand the products and is prone to negative sensationalism about the food supply," Hibbert said.

However, countered McMasters, reporters must continue to cover issues of food safety because they are of paramount importance to the public.

"We don't want a situation where journalists and citizens are silencing themselves from speaking out about important issues of public safety because they fear a lawsuit," McMasters said.

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