PRESIDENT GEORGE BUSH: I do not like broccoli. And I haven't liked it since I was a little kid and my mother made me eat it, and I'm President of the United States. And I'm not going to eat any more broccoli.
ELIZABETH FARNSWORTH: Former President George Bush's public disparagement of broccoli did not go far enough to bring on a lawsuit. But if he had said the vegetable endangers people and not had proof, then in some states broccoli farmers could have sued. Since 1990, 13 states, from Georgia to Idaho, have adopted food defamation laws. That, in effect, allowed broccoli to stay in court. Under these laws individuals can be sued for questioning the safety of any food product without verifiable scientific proof, for ridiculing radishes or picking on pears, for example, or, as TV personality Oprah Winfrey discovered, belittling beef.
OPRAH WINFREY: Today's show may cause you to diet for all the wrong reasons. We're talking about the hidden dangers in our food.
ELIZABETH FARNSWORTH: Last year in the first court test of these laws Texas cattle ranchers filed suit against Winfrey and one of her guests, a Humane Society official, for defaming beef during an April 1996 Oprah show.
Here's what was said. "Oprah Winfrey, you said Mad Cow Disease could make AIDS look like the common cold?"
Winfrey: "That's an extreme statement, you know."
Lyman: "Absolutely." One hundred thousand cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has Mad Cow Disease, it has the potential to infect thousands."
Winfrey: "It has just stopped me cold from eating another burger!"
After the broadcast, cattle prices dropped to near 10-year lows and ranchers blamed their losses on the show. Winfrey and her lawyers cite other reasons behind the drop. The talk show host has relocated her show from Chicago to Amarillo, Texas, where the trial is being held, until the jury reaches a decision. The cattlemen are claiming more than $12 million in damages. The only other Texas food defamation lawsuit is before the same court in Amarillo:
The case of Emu Vs. Honda. An emu is the smaller cousin of the ostrich, raised for feathers, skin, and most of all meat. In early 1990, the going price for a pair of emu was about $40,000. Today that same pair would sell for being 100 and 400 dollars. And some Texas emu ranchers blame the Honda Motor Company for the drop. Six ranchers are suing Honda over the car commercial that pokes fun at a guy named Joe who looks for a job in some odd places, including an emu ranch.
PERSON IN COMMERCIAL: Emu, Joe. It's the pork of the future.
ELIZABETH FARNSWORTH: The ranchers' lawyer says the commercial defames emu meat and the emu industry.
JOHN SCOTT, Emu Ranchers' Lawyer: The message that most viewers get of this commercial is that anyone associated with the emu industry is a flimflam or scam artist.
ELIZABETH FARNSWORTH: The case is expected to be heard later this year. The food libel laws currently on the books in Texas and other states were triggered by a 1989 "60 Minutes" segment, "A is for Apple." It alleged that alar, a chemical used to lengthen the time that apples ripen on trees, could cause cancer, especially in children. Washington State apple growers sued for damages, but the suit was dismissed on the grounds that the product, not the producers, were defamed. And under the law at that time food could not be defamed. In reaction, the American Feed Industry Association hired lawyers to draft a bill against the defamation of agricultural products. The bill was then dispersed among the states where some legislatures passed it. But whether the new food defamation laws are a limitation of free speech remains to be tested. Meanwhile, in 13 states if you can't say anything nice about perishable products, it's safest not to say anything at all.
ELIZABETH FARNSWORTH: Now, two different perspectives on two defamation laws. John Bode was assistant secretary of agriculture for food and consumer services in the Reagan and Bush administrations. He now practices law in Washington, D.C. And David Bederman is a law professor at Emory University. Thank you both for being with us.
John Bode, you're a rancher and also your law firm helped draw up the statutes on which some of this legislation was based. Why is this legislation important? What, besides alar, propelled it?
JOHN BODE, Attorney: Well, right now, generally, libel law exists so that if a knowing statement is made to falsely defame Acme brand hamburger, the Acme Company can sue. However, if a knowingly false statement is made disparaging hamburger generally and great damage is done, many courts will not allow that case to be brought because they feel historically the law has held that the identification of the producers of that hamburger is not close enough. This law simply says that if farmers get hurt by someone knowingly making a false statement about the safety of the food, the farmers can go to court and try to prove their case.
ELIZABETH FARNSWORTH: And, Mr. Bederman, is that your understanding for how these laws came to be and also for what they are saying?
DAVID BEDERMAN, Emory University Law School: Well, many of these laws were particularly advocated by agribusiness and food industry interests in this country precisely, I think, as John has said, to provide a cause of action in these cases and also, I think, to send a message to media and food safety advocates to be quiet, to don't speak out.
ELIZABETH FARNSWORTH: And--
DAVID BEDERMAN: And moreover I think in many of these laws the question of whether it's a requirement that you knowingly utter these false statements is quite uncertain, but even apart from that, I think the real question is what do we mean by scientific certainty in these kinds of cases?
ELIZABETH FARNSWORTH: Okay. I'm going to come back to that for a minute, but first, Mr. Bode, do you agree that this was partly--these laws were partly aimed at warning media organizations not to speak out?
JOHN BODE: No, I don't. I think when you look at the standard that's adopted in these laws, it's a very high standard. That's why the Texas cattlemen have a tremendously difficult case to prove. They require that, knowingly, a false statement is knowingly made. That's the same standard we have for defamation of public figures. We do have a pretty robust debate in our country talking about our President and members of Congress. There's not a chilling effect on that speech, and we should have a robust debate about food safety. That's how we can keep making our food safer.
ELIZABETH FARNSWORTH: Okay. Mr. Bode, spell it out just for a minute. I could say something about a product if I--even if it was false, if I didn't know it was false, is that the way it works?
JOHN BODE: That's right. The First Amendment clearly protects a very robust debate. It does not permit actions to be brought just because you were wrong. You could make a statement; you could be wrong; and you would still be protected. It's when you knowingly make false statements, present false information asserting that a food is unsafe, that it could be actionable under these statutes. So it will be very hard to prove a case under these statutes.
ELIZABETH FARNSWORTH: Mr. Bederman, you said that there's some doubt about that. You think that it's not so clear?
DAVID BEDERMAN: I'm afraid in many of these states this knowing element, this knowingly making a false statement, is not in the letter of the statute in many states. It seems to be the people will be held liable simply if they disseminate information that is later proven to be incorrect. And I think that's very problematic. Now, in Texas, John is right, there is an element in the statute which says that a plaintiff, we think, must show that the statement was knowingly made to be false. The problem, again, is in Texas what is the standard of falsity? The Texas statute refers to reasonable and reliable scientific facts, inquiry, or evidence. And the problem I see with that is it converts fundamentally a question of scientific inquiry and a public policy debate into a legal question thrown into a court of law. And I think at the margin that must have a chilling effect on speech.
ELIZABETH FARNSWORTH: Mr. Bode, what about that?
JOHN BODE: Well, I think it's very clear that if a different standard, a lower standard is used, then there is--that is constitutionally suspect. Let's stay on taxes, where we've got the specifics of the statute in front of us and a case--there the--the--how the standard is applied where will be very important. Certainly, a constitutional law can be applied in a way that is problematic. It is important, of course, that the courts permit speech that allows for the growth of science. We don't know all there is to know about any of the food safety issues, and science will keep evolving. And our public debate must allow for that and not have a chilling effect. I believe that the Texas statute certainly is tolerant of that approach.
ELIZABETH FARNSWORTH: Mr. Bederman.
DAVID BEDERMAN: Well, my concern, as I think John's is, is that in the context of this trial in Texas a large part of this is going to be about science. But a large part of this trial is also going to be about tabloid news and sensationalist journalism. I think the subtext of this case is really that public figures like Oprah Winfrey, who engage in this genre of talk shows, have people on who may make statements, who may be uttered in utmost good faith, but if it ultimately is proven, as John suggested the statement was made without reasonable and reliable scientific facts, the Oprah Winfrey is going to be liable. And, again, while the process of scientific inquiry goes on, Oprah Winfrey may well be at the end of the day holding a judgment for millions of dollars. The effect on people around the county in disseminating information, including those in the scientific community, I think is going to be felt pretty quickly.
ELIZABETH FARNSWORTH: Mr. Bode, do you think that's true, and especially what about small, non-profit groups that may be researching some of these issues and don't have the resources that somebody like Oprah Winfrey has?
JOHN BODE: Sure. First of all, it is very clear that the statement, the false statement must knowingly be made under the Texas statute. And that's why the statute is constitutional, and it would not have a chilling effect on free speech. As far as non-profit groups are concerned, certainly this sort of statute applies to them. And I think we should realize that they, like everyone else, sometimes feel pressures. And one of the real concerns in the alar apple case was that there was a group that was seeking to increase their visibility and perhaps contributions to their organization by hyping that story. And that is no small part of what motivated this standard, so that someone could not knowingly misrepresent or lie to create a bogus food scare.
ELIZABETH FARNSWORTH: Mr. Bederman, do you think that a farmer or rancher should have some recourse if the product that they produce is wrongly spoken of as dangerous?
DAVID BEDERMAN: Well, I believe, alternately, that in this marketplace of ideas that we have in this country that good quality information will drive out bad, false information. Growers and agricultural interests in this country have wide access to the media and wide access to public information channels. And I think we ought to rely on the marketplace of ideas to have a robust public debate. The moment we have a lawsuit filed and the moment we have one of these agricultural disparagement statutes on the books, we are basically converting a question of scientific inquiry and public policy into a legal question converted into questions of burden of proof before lawyers and judges. And I think that's a lousy way to make public policy about the safety of our food supply and also a bad way to promote scientific inquiry.
ELIZABETH FARNSWORTH: Mr. Bode, are other states adopting these laws, besides the 13 that already have them?
JOHN BODE: Some other states are considering them. I'd like to go back to the point he just made. His message to the family farms that could be wiped out by a bogus food scare is basically to say, "tough luck." If a farmer is--it's not uncommon for a farm to take a whole year's production to market on a single day. And if that's a day a bogus food scare hits the market, they can be wiped out by it. These laws simply allow those farmers to go to court and say, you've damaged a commodity market by lying to the public about a food scare, and you should be accountable.
ELIZABETH FARNSWORTH: Mr. Bederman, are there more cases like this coming up?
DAVID BEDERMAN: I'm afraid there are. You mentioned the emu case, which in truth I think is really not an agricultural disparagement case at all. It's really more about parity and about a suggestion made in the Honda commercial that there's something shady about ranching emus.
ELIZABETH FARNSWORTH: Although it is being brought under the same law, right?
DAVID BEDERMAN: Indeed. But I think it really is serious. The Oprah case is a serious test, and I think John and I agree about the use and application of these laws. But I've recently learned of a case in Ohio involving a firm called Agri General, now known as the Buckhigh Egg Farms, in which an allegation was made that they were back dating the expiration date on eggs; when a carton of eggs had expired, they simply repackaged it in a carton showing a later expiration date. And they were caught doing this. And when they were caught, their response was to file under Ohio's agricultural disparagement's statute saying, well, you've implied that these eggs aren't good to eat, and that's bad for us, and we want you to pay. There's clearly a coercive element in these suits almost of a nature of a slap suit, which is strategic litigation against public participation, and these suits are clearly intended to chill speech. They're clearly intended to send a message to the public and to food safety advocates in the media, think twice, think twice about running these stories; think twice before doing these investigations, because we may hold you to account later.
ELIZABETH FARNSWORTH: Okay. That's all the time we have. Thank you both very much.
DAVID BEDERMAN: You're welcome.