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Texas backgrounder:
... Six flags/shifting allegiances:
... 1844 Treaty of Texas  . . . 1861 Texas Secession 
... 1996 attack on free speech..1997 Pecos shoot-out
Cattlemen nervous as battle with Oprah looms
Beef with Oprah tests food law constitutionality
...Lawsuits called un-American
...Saving the $650,000,000-a-year small family rancher
Casper, Wyoming editorial: 'Cattle industry asking Texans to swallow putrid law'
Geraldo Rivera on Oprah lawsuit
...Harvard Law professor: 'It's unconstitutional.'
...Texas Attorney General: '...violation of her First Amendment rights.
Testing a New Brand of Libel Law
...The Amarillo Chamber of Commerce vs. the Amarillo NAACP

Bill of Rights -- the First Amendment to the US Constitution

27 Sept 1789 -- Washington DC 
Provided by: The Founding Fathers
210 years later -- your legal rights: Freedom of Expression, Speech and Press
Other Rights and Freedoms guaranteed by US Constitution 
US Constitution: full text ... National Anthem: full text andF audio

The Constitution
of the
United States


We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Cattlemen nervous as battle with Oprah looms

Reuters North America Mon, Jan 12, 1998 By Bob Janis
CHICAGO (Reuters) - U.S. cattlemen have a beef with Oprah Winfrey. Two years ago, talk show host aired a program about food diseases that they said needlessly frightened Winfrey's worldwide viewers about "madcow" disease and beef. A group of irate Texas cattlemen sued Winfrey, who recently won the People's Choice award for most popular woman on television. The cattlemen alleged the show violated a controversial Texas "food disparagement" law and cost them millions of dollars in cattle revenues. But, with Oprah and the cattlemen due to square off in a Texas court later this month, the cattle industry is getting nervous about just how much they stand to gain -- or lose -- as publicity about the suit against the popular Winfrey grows. Winfrey's program about Bovine Spongiform Encephalopathy (BSE), or madcow disease, last April chilled beef demand -- and cattlemen are concerned that further coverage of the issue could lead to a reprise.
"Our fear is that the trial revives the issue of BSE in the minds of the consumer again," Clark Willingham, president-elect of the National Cattlemen's Beef Association, said recently. "The fact that she is moving the show has become a news item and it will give her a lot of free publicity, but that hurts us because mad cow disease gets pushed out in the headlines again," Willingham said.
Winfrey's production company said Jan. 7 the show would be "on location" in Amarillo, Texas, the trial site, from Jan. 26 on, while the defamation suit against her is heard. Winfrey's top-rated talk show is syndicated in 305 U.S. and 132 international markets.

In Amarillo, the heart of Texas cattle country, Winfrey has been the talk of the town since her broadcast on April 16, 1996. The show in question was titled "Dangerous Foods" and focused on food-related dangers, including mad cow disease. The trial is set to open Jan. 20 in Amarillo and the pre-trial hearings have already caught media attention.

"That's all you hear about on the radio and TV down here is Oprah, Oprah, Oprah. It's the biggest thing to hit Amarillo in a long time," said a Texas Panhandle feedlot operator said.
The clerk of the Federal district court in Amarillo has posted a notice on the Internet warning that media seating in court may be limited due to the swelling public interest in the case. Media were to register with the court by Jan. 14. Parties in the lawsuit -- Texas Beef Group et al vs. Winfrey -- are under court order not to discuss the case in public.

Winfrey's broadcast came at a time of intense interest in BSE and possible links to Creutzfeldt-Jakob disease, a similar fatal disease in humans that decays brain tissue. Winfrey's guests included Gary Weber, an National Cattleman's Beef Association animal health expert, and Howard Lyman, a consumer activist. During the show Winfrey said she was shocked after Lyman said meat and bone meal from cattle was routinely fed to other cattle to boost meat and milk production. "It has just stopped me cold from eating another burger," Winfrey said. The television camera panned audience members gasping in surprise as Lyman explained how cattle parts were rendered and fed to cattle. Scientists have said the practice likely helped spread BSE to thousands of cows in Britain until it was outlawed in 1989. [This is the most puzzling aspect of the lawsuit -- no one, including the USDA, disputes that rendered cows were fed back to live cows up until the recent ban. It has nothing to do with BSE per se, though the disease was thought to be spread in this way in the UK. -- webmaster]

U.S. health authorities have said repeatedly there has never been a case of BSE in U.S. cattle and there is no scientific proof that cases of CJD are caused by eating beef. But British authorities said last year that the deaths of four dairy workers and six young adults from CJD may have been tied to consumption of beef from infected cows.

News of Winfrey's April 16 show spread quickly to Chicago Mercantile Exchange cattle futures markets, sending prices lower on fear that Oprah's audience would turn away from beef. [This cause-and-effect is unresearched speculation on the part of the reporter. Cattle futures and commodity markets in general can be highly volatile. There is no method for ascertaining motives of individual sellers and buyers -- webmaster]

The plaintiffs in the lawsuit -- six Texas cattle feeding companies -- are being led by Paul Engler, owner of Cactus Feeders, one of the largest U.S. cattle feeding operations. Engler's attorney declined comment on the suit. But the plaintiffs filed suit based on a controversial 1995 Texas law that prohibits unfounded comments against perishable food items.

Although 12 other states have similar laws, this will be the first case of its kind under such "food disparagement laws" that call for fines for disseminating false information about consumer food products, the NCBA's Willingham said.

"To the best of my knowledge, this is the first test of anti-agriculture laws so far," said Willingham, who is also an attorney.

Cattle industry asking Texans to swallow putrid law

14, 1998, Wednesday 3 STAR EDITION Houston Chronicle
Charles Levendosky; Levendosky is editorial page editor of the Casper, Wyo., Star-Tribune. 
A lawsuit filed in a Texas federal court will, if successful, throttle public debate and leave the American public virtually unprotected from dangerous agricultural practices.

Five Texas cattle companies are suing Oprah Winfrey for comments made on her television program regarding the potential for "mad cow " disease (bovine spongiform encephalopathy or BSE) to infect U.S. cattle - certainly a significant issue of wide public concern. BSE, a rare brain-destroying disease, is implicated in the deaths of at least 10 people in Great Britain.

In 1995, the Texas Legislature passed a "False Disparagement of Perishable Food Products " law that allows a person to be sued for libel if he or she publicly "states or implies that the perishable food product is not safe for consumption by the public. " Don't ask if the food you are about to eat is hazardous to your health. The trial, which begins next week, is the first legal test of food slander laws in this country. The case won't be settled at the federal district court level. It will be appealed, no matter who wins. Thirteen states have passed these laws. Millions of agri dollars have been spent politicking for them.

Food slander laws put the burden of proof on the person who raises a question of food safety. The person sued must prove to a jury that the statements made were "based on reasonable and reliable scientific inquiry, facts or data. " If these laws were on the books when marine biologist Rachel Carson wrote Silent Spring, we would have never been able to read it. She raised the flag on the dangers posed by the indiscriminate use of insecticides.

Her publisher would have been in court after court defending the book against all the pesticide and agricultural industries that were poisoning the land and our foods. Hired pesticide scientists would have paraded all kinds of skewed studies to show that Carson's statements were not "based on reasonable and reliable scientific inquiry. "

And that's precisely what this Texas lawsuit is all about - shutting down public debate on food-safety issues.

On April 16, 1996, during a broadcast of the Oprah Winfrey Show, former Montana rancher Howard Lyman, now with the Humane Society, raised the issue of the potential for mad cow disease in this country. According to the lawsuit filed by Texas cattle companies and a transcript of the show, Oprah Winfrey questioned Lyman during the show: "You said this disease could make AIDS look like a common cold? " Lyman responded:

"Absolutely. " Lyman went on to say, "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. Remember, today, (in) the United States - 14 percent of all cows by volume are ground up, turned into feed and fed back to other animals. Later in the program when asked why he left ranching, Lyman stated: "Well, what - what I know about what is happening out there with cattle, like feeding cows to cows, I look at it and say that that's a risk that I'm unwilling to take."
Those statements, in a nutshell, are why Winfrey and Lyman are being sued. Are they false statements? The U.S. Department of Agriculture had put a limited voluntary ban on feeding cattle remains to cattle when the first human deaths due to mad cow disease were first reported in England. But it wasn't until June 1997 - 14 months after the Oprah Winfrey Show was broadcast - that the Food and Drug Administration finally ordered a total halt to feeding cattle the bone and ground-up meat scraps of other cattle.

Did the cattle industry have an opportunity to state its case? On the same program, policy director for the National Cattlemen's Beef Association, Gary Weber, responded to Lyman. So did William Hueston of the USDA. Had Weber and Hueston been more effective spokesmen, this lawsuit would never have been filed.

A few days after the Oprah show hit the TV channels, cattle prices temporarily plunged. Texas cattlemen sued. They blame Oprah for the drop in prices. They claim to have lost millions of dollars. Attorneys for Winfrey dispute the contention. The Texas food libel law pretends to seek fairness. Not so. It was written strictly to insulate agriculture from public debate on serious food-safety issues. The last section of the law even protects those who sell agricultural products under false pretenses.

It reads: "A person is not liable under this chapter for marketing or labeling any agricultural product in a manner that indicates that the product: (1) was grown or produced by using or not using a chemical or drug; (2) was organically grown; or (3) was grown without the use of any synthetic additive. " In other words, if a producer puts a label on his fruit that states: "organically grown, " it doesn't matter if that's a lie or not - under this law, no legal action can be taken for the false claim.

Oprah and Lyman may not win at the lower federal court level. U.S. District Judge Mary Lou Robinson doesn't seem to put much credence in freedom of speech. She issued a blanket gag order, Dec. 16, that prohibits anyone connected with the trial and the parties in the lawsuit from talking to the media - until the jury renders a verdict. The ramifications of this trial go far beyond Texas or talk-show TV. They stab at the very heart of a citizen's right to publicly discuss public issues. The U.S. Supreme Court in New York Times vs. Sullivan (1964) said:

"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' "
The food disparagement law should be buried like putrid meat. But the ranching industry - treating us like cattle - pushes it into our faces, demanding that we swallow.

Wyoming ranchers watching Oprah case

12 Jan 1998 Star-Tribune   (AP)
CASPER, Wyo. - Wyoming ranchers are carefully watching a case in Texas in which beef producers are trying to recover damages for statements made by a Humane Society official on the "Oprah Winfrey" show. Nels Smith, president of the Wyoming Stock Growers Association, said Wyoming interest is high in the case testing a Texas law allowing the agriculture industry to recover damages for criticism of its product.
"I think the fundamental concept of the law is that people shouldn't be allowed to use a public forum to get fast and loose with the facts without being held accountable," Smith told the Casper Star-Tribune's Washington, D.C., reporter.
During an appearance on Winfrey's talk show, a Humane Society official said "mad cow disease," so far seen only in Britain, could "make AIDS look like the common cold" in the United States. Winfrey responded by saying she would stop eating beef. [This assertion is not consistent with the video tape and transcripts of the show. The transcript shows Oprah's comment was made in response to learning of cows being fed cows. -- webmaster]

Beef producers across the country blamed the comments for a steep decline in cattle prices. "There's no question people lost money, it's just difficult to quantify," Smith said. [In commodity trading, some parties lose money and other parties make money. Producers and feedlot operators can take hedge positions (betting on falling prices) to protect the value of their inventory and conceivably could profit from falling prices. -- webmaster]

Under the Texas law, agricultural producers can recover civil damages from anyone who criticizes their product. A similar law proposed in past Wyoming legislative sessions has not been approved.

Rep. Frank Philp, R-Shoshoni, president of the Wyoming Wool Growers Association and a sponsor of the proposed law, said he has not decided whether he will introduce his measure again this year. Philp's proposal would have allowed producers to recover damages when someone makes a false, misleading or defamatory statement about a product that the person knew or should have known was false. Philp said he believes some kind of law is needed in Wyoming to protect producers from false statements made by animal activists.

"When you have perishable food products, statements like that can really have an effect on prices," he said. "I'm quite conscious of the rights guaranteed by the Constitution and the need to protect them. But on the other hand, producers ought to have the right to be protected from disparagement or slander of their livelihood."
But consumer activists said the Texas law and similar laws in other states give the agriculture industry the ability to stifle the public's ability to learn about the potential health impacts of some ranching practices.
"If this law survives a court challenge, free speech as we know it in the United States is dead," said John Stauber, of the Center for Media and Democracy in Madison, Wis.
Stauber, who coauthored a book on "mad cow" disease in the United States, said such laws are the result of a "very brilliant, coordinated campaign" by the agriculture industry.

Geraldo Rivera on Oprah Winfrey lawsuit

CNBC News Transcripts  
January  6, 1998, Tuesday 11:33 AM  RIVERA LIVE (9:00 PM ET) 
GERALDO RIVERA, host: "But up front tonight, is it possible to slander a hamburger? That, in essence, is what Oprah Winfrey is charged with doing in 1996 when she badmouthed beef during a program that suggested that Britain's mad cow disease could soon spread to a burger joint near you. Pretrial hearings began today in Amarillo, Texas, where cattle producers had sued the talk-show queen and one of her guests under a 1995 state law--a controversial one--that protects agricultural products from false statements. Yes, they call 'em the banana bills. It protects agricultural products from false statements. They claim, the cattlemen do, that her remarks caused what is now known as the Oprah crash,' a temporary drop in beef prices that resulted, we are told, in a loss of millions, at least temporarily, to the cattle industry.

Reporter Garrett Glaser of CNBC's "Business Center " has the juicy details:

Oprah Winfrey's broadcast 18 months ago on whether Britain's mad cow disease could reach the US. The show has resulted in a battle that will take place in this Amarillo, Texas, courthouse. At issue: Did the program bring economic hardship to the beef industry?

Cattle futures plummeted right after the broadcast and stayed off the entire month $ 1.50, a significant amount, according to analysts. Rancher Paul Angler says he alone lost nearly $ 7 million as a result of the program. He and several cattle corporations are suing Winfrey, her production company and an industry critic who appeared on the show.

Mr. PAUL ANGLER (Rancher): (From June 1996) Beef sales, even at the retail level, were severely hurt and had kind of a re--a reverberating effect, you know, on the whole market.

GLASER: Although both sides are legally barred from speaking on camera, it's expected Oprah Winfrey will use a First Amendment defense. The prosecution will rely on this Texas law forbidding false disparagement of perishable food. The National Cattlemen's Beef Association refused to comment on camera about the food disparagement laws. Instead, it released this statement, reading in part that, "Members are in, " quote, "support of efforts to address economic havoc caused by sensational and untruthful reporting by the media. "

Steve Kupperud did talk with us. He's senior VP with the American Feed Industry Association in Washington.

Mr. STEVE KUPPERUD (American Feed Industry Association): What we're basically saying is give the farmer and rancher some recourse. When an animal rights activist or a consumer activist or an environmentalist makes a statement about meat, milk and eggs, fruits and vegetables, that is patently untrue...

GLASER: First Amendment expert Alan Dershowitz disagrees. He says so-called veggie libel laws are clearly unconstitutional and will be so ruled when they reach the courts.

Professor ALAN DERSHOWITZ (Harvard University Law Professor): It's simply unconstitutional. Anybody in the news media has the right to express opinions about the health and safety of food products. And it would be terrible for people to be cowed,' to use a very bad term here, into not discussing these issues of great public concern.

RIVERA: Joining me on the phone right now is State Representative Bob Turner, the--the sponsor of the food disparagement law in the Long--in the Lone Star State.

Are you there, Representative Turner?

State Representative BOB TURNER (Democrat; Sponsor, Food Disparagement Law): Yes, I am.

RIVERA: O--thank you for joining us. You heard Alan Dershowitz, who is, you know, very controversial on the one hand but probably, without a doubt, one of the constitutional experts in our country, saying that he believed it was a slam dunk that your statute would be found unconstitutional. Are you concerned about that almost generally held feeling among many First Amendment experts?

State Rep. TURNER: I think it's generally held among those who are not in agricultural production. Yes.

RIVERA: On tha--on that, I agree. I'm--but it doesn't change my basic thrust.

State Rep. TURNER: Right. I--I guess--yes, I--I think that's the purpose of the case--Is it not?--is to make a determination on perhaps not only this case but probably the legality of the legislation.

RIVERA: Aren't you--aren't you limiting Oprah's rights to free speech? I mean, can't she say she's not gonna eat another hamburger? Can't I say it if I felt that way? I don't, incidentally, but couldn't I, in this country, where the First Amendment is extolled, perhaps, amongst all others?

State Rep. TURNER: Well, let me first say that my legislation was not, of course, intended toward Oprah Winfrey's statements, since my legislation happened before the statement did. But it was aimed simply at protecting agricultural producers who have a product--who produce a product with a very short shelf life. And any kind of disparaging remark with no--with no truthful basis, with no factuality behind it, or intentionally thrown, even in some cases, would actually not only bankrupt the producer but--but would actually perhaps limit the ability of--of agriculture producers to continue to produce that product in the future.

RIVERA: But isn't someone allowed to have an opinion about a--a banana or a--a cauliflower or--or beef?

State Rep. TURNER: Oh, I have no problem with opinions. I--I think if you--if you read the legislation clearly, basically what the legislation says is that if--with intent to--to lead the people...

RIVERA: I've got it right here.

State Rep. TURNER: ...with--to lead the people wrong, if--if the intention of--of the person--if they knowingly disparage a product...

RIVERA: Right, The person knows the information is false.' My problem is, how the hell do you know if the information is false? Someone says, Mad cow disease is gonna spread to the United States.' How do you know if that's false or not?

State Rep. TURNER: Well, the res...

RIVERA: You're necessarily talking about a possibility that may occur some time down the road.

State Rep. TURNER: Well, first, let me say that research ha--has an ability to prove these things. It reminds me a little of the Alar apple thing back a number of years ago.

RIVERA: On the Alar apple thing, I must, ladies and gentlemen, credit Representative Bob Turner. Remember that big scare? Remember many movie stars saying Alar in apples was causing all kinds of health problems in children? And later, as far as I know, it was proven, or at least not to be the case.

State Rep. TURNER: Well, first, of course, the Alar was supposed to produce carcinogen, which--which, in turn, could cause cancer. And I think it was proven after the fact that probably--if--if a white mouse ate a truckload of apples with Alar, probably the white mouse would die.

RIVERA: Mm-hmm.

State Rep. TURNER: My observation is, a white mouse likely would have died after a--a truckload of apples irregardless.

RIVERA: Yeah, just burping itself to death. There are, you should know, folks, 13 states--not just Texas--there are 13 states--a total of 13 with these food disparagement laws. Here they are. Here's the list. In every one of those states, the--the agricultural industry, obviously, very powerful, and you know how laws get passed. Let's be real here.

Now I'll tell you my problem with these kinds of statutes. I'm afraid that they could have been used to punish some things that are now praised--you know, some environmental and--and medical breakthroughs praised. Ima--imagine the people, for example, who first warned about the dangers of DDT or the cancer-causing properties of tobacco.

Dan Manternach is the president of the Professional Farmers of America Association. He joins us from Waterloo, Iowa. Dan, hi. Welcome aboard. In Austin, Texas, tonight, the former Texas agricultural commissioner, Jim Hightower. He's now a nationally syndicated radio talk- show host.

Unidentified Panelist: Mm-hmm.

RIVERA: How do you like working on that side of the microphone there, Jim?

Mr. JIM HIGHTOWER (Former Texas Agriculture Commissioner): Well, it's a little bit different. You--you...

RIVERA: I'll bet it is.

Mr. HIGHTOWER: I--it's the only downward career move you can actually make in politics.

RIVERA: That's right, and get paid for it. And he's the author of a new book.

Mr. HIGHTOWER: A little bit.

RIVERA: His book is called--Are you ready?-- "There's Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. " Alongside Mr. Hightower, you recognize Jim Mattox. He was a US congressman before serving as Texas attorney general from 1983 to 1991. He's now in private practice in Austin.

On the West Coast, my old pal and lawyer Marty Garbus joins us, the famed criminal defense and constitutional lawyer, First Amendment expert and death penalty expert. While in Denver, David Kaplan, our defense attorney and expert, joins us. We're gonna have quite a vigorous debate, I think, on this whole First Amendment issue.

But let me--let's go to Jim Mattox first. What about your feelings on what Oprah did, how serious an offense? Clearly there was some--some reaction, some damage, to it. Do you think she should be found liable under this controversial law?

Mr. JIM MATTOX (Former Texas Attorney General): I think I would have to probably agree with Professor Dershowitz there. I--I think that there's a--a pretty strong chance it'll be found to be a violation of her First Amendment rights if she can't say that. But I think they probably have some other fundamental problems in the lawsuit, simply proving that her statements actually caused the--the drop of the cattle futures, particularly in--in light of the droughts and other things that were happening. So I think they've got a long ways to go, and I--and I think it's a long battle. They may even have a jurisdictional problem as to--as to where the--the offense actually took place, whether it took place in--in New York or Washington, DC, or whether it took place in--here in Texas.

But, overall, I think that most people would--would believe that the public media has a right to talk about issues that are of public concern. Matters such as mad cow disease, most certainly, would fall under that category, I think, and I--I think if--if--if her statements had been directed at a specific meat producer or specific farmers or--or a processor, well, then I think they would have had a much better opportunit to--tunity to recover if she was doing it in a malicious and untruthful way. I think she was trying to open something up for pure public discussion, and I think sometimes--she may have gone a little overboard, but at the same time, I doubt very seriously that--that that--that that's not protected by the First Amendment rights.

RIVERA: Let me ask the president of Professional Farmers of America, Dan Manternach. I bet you know people who don't like hamburgers or think they're no good for you.

Mr. DAN MANTERNACH (Professional Farmers of America): Well, we--we certainly know people who have concerns about eating meat. My concern is an issue that you raised earlier when you suggested that legislation like this might have kept us from uncovering dangers in other products. You're suggesting that food products, for example, should be held guilty until proven innocent? I don't think that's what this country's all about.

RIVERA: No, but I--what I'm suggesting, Dan, is, let's say I was on my daytime talk show and I said, I have just been talking to some people who say that DDT, this widely used insecticide, is, down the road, gonna cause cancer in people.' Then, you know--And you people who are eating cauliflower or grapes or bananas, whatever it is in this state where this--this perishable product is protected under this statute, you better watch out.' I could have been sued and the state of scientific knowledge at the time I was making the statement would not have backed me because, of its very nature, scientific inquiry takes time to perform. Therefore, I would have been sued. I would have been t--shelling out $ 7 million to this cauliflower grower or this beef producer and science, 20 years later, would have--would have said that, You know what?' That, Geraldo was right when he said that DDT was bad for you.'

That's my problem. The state of scientific knowledge when? False by whose standard? By the m--by the--the Texas board of cattle growers, for gosh sakes, or by the faculty of MIT? B--by whose standards? I think the law is vague. I think the law is dangerous. And I am troubled by it. I mean, listen, I understand that people get hurt when loose le--lips sink ships, Jim Hightower. My concern is that it's hard to fix it with a statute.

Mr. HIGHTOWER: Well, Geraldo, let's just add the point that this is not theory. I mean, we have problems with beef. We have E. coli bacteria in it. We have mad cow disease. I do, indeed--with Howard Lyman and Oprah Winfrey, I think we have a version of mad cow disease in this country, despite all the official protestations, the same official o--protestations that they had in England before they had to admit, Well, yes, here it is.' I mean, consumers have a right to be concerned about what is in their food. I think this suit is--is gonna be found unconstitutional based on the First Amendment's anti-clowning clause. I mean, th--this is ridiculous.

RIVERA: Yeah. But--but, Dan Manternach, would you have Jim Hightower sued for what he just said about, you know, There is a version of mad cow here in this country'?

Mr. MANTERNACH: Well, he certainly has a right to his opinion.

Mr. HIGHTOWER: Thank you.

Mr. MANTERNACH: But he still has not gotten any scientific evidence to that. And I maintain...

Mr. HIGHTOWER: Oh, I do, actually. Actually, there are--is scientific evidence. Dr. David Marsh out of--out at the University of Wisconsin, a--a renowned professor of--of...

RIVERA: Bob Turner, you hear it? You hear it? It's coming from his lips now. It just sounds to me that that's a lot like what Oprah said, isn't it? Isn't it, Bob Turner?

Mr. MANTERNACH: Yes. We--we have to take into account the fact that when you're talking about food products, you're talking about the risk of disrupting production that has a very long cycle of productivity. Food is not produced on an assembly line. You can't turn it on and then turn it off and then turn it on again. If you...

Mr. HIGHTOWER: Well, actually, that's the problem in this case is that food is being produced on an assembly line. We've industrialized meat production, crowding these cattle up into--into factory farms.

RIVERA: Oh, what are you, a Communist, Jim Hightower? What happened to you since you were agricultural commissioner?

Mr. HIGHTOWER: What? I said this when I was agriculture commissioner. By the way, we had a previous guest...

RIVERA: There must have--be some additives in whatever it is you're eating.

Mr. HIGHTOWER: Senator Turner was trying to defend the producer. The actual cow-calf operator out there, the typical family rancher, is not the one who is doing this. This is being done at the feed lov--level.

RIVERA: I gotta take a break.

Mr. HIGHTOWER: These are the people that are dumping these--creating cow cannibals.

RIVERA: It's The Beef Against Oprah, and we'll be right back.


RIVERA: Queen of the talk shows, now facing an almost $ 7 million lawsuit. Lots of issues--one of them change of venue. Before I get to that, though, let me go to Marty Garbus on the issue of constitutionality. You know, what would the Constitution say to a law like this?

Mr. MARTIN GARBUS (Criminal Defense Attorney): Well, I think there's not the slightest possibility that this law will be upheld. It has as much chance as a snowball in hell. It's--it--it's silly. It's foolish. And this is the first time the statute has been tested, and there's no question but that within a month, the statute'll probably fall if the appellate court can get it that quickly.

RIVERA: But, Marty, tha--well, let me say that it--i--go ahead. I--I mean...

Mr. GARBUS: The other thing--I think the other thing that's im--I think the other thing that's significant--and I think you were getting to it--who passes laws like this? Why does Texas have a law like this which protects the cattle growers and not the consumer? In other words, if you--you would have--consumers have their rights basically being obliterated if people like you or Oprah couldn't get on television or the newspaper and say exactly what Oprah said.

RIVERA: Well, you know...

Mr. GARBUS: Secondly, what Oprah said, if I could...

RIVERA: ...the vote was 124-to-13, according to my figures here. Bob Turner proposed it, but almost everybody else in the Statehouse agreed with him.

Mr. GARBUS: Well, but the state Legislature is sympathetic to the growers, to--to the farmers. They're sympathetic to economic interests. I assume that if you have the consumers, the people who might die from mad cow's disease, represented in ten--in--in Texas, you wouldn't see laws like this passed. I--I think the other...

Mr. MANTERNACH: Consumers aren't being told the whole story, however.

Mr. GARBUS: No, no, consumers are being--let me th--say one thing also that you've missed. One of the things that this man said is the cattle were ground up, and cattle who were ground up were then fed to other cattle. Now I think anybody would agree that that creates a danger. The other thing, just getting back--you mentioned the Alar case before. The Alar case was dismissed. It was thrown out. There has never been a case that has been upheld.

RIVERA: But it was thrown out, Marty--it was thrown out, as I understand it, because here, the--you--the story was about Alar, this--this chemical causing carcinogens in people who eat apples. Apple growers sued prior to these food disparagement laws being passed and the court said they had no standing because they personally were not slandered. They were talking about Alar on apples, not Joe's Apple Farm. You know what I mean?

Mr. GARBUS: You're absolutely right. You're absolutely right.

RIVERA: Now you have this food disparagement law which gives them a cause of action. I understand, Bob Turner, what your motive was, but don't you agree that it is in serious danger, in real peril, of being found unconstitutional? Bob, you there? Bob Turner?

State Rep. TURNER: Thi--this is Bob Turner.

RIVERA: Go ahead.

State Rep. TURNER: May I make two--may I make two points?

RIVERA: Go ahead.

State Rep. TURNER: Tha--number one is, there's no re--there's no relationship between--between the DDT argument and the food product. First off, we're talking about something that is...

Mr. GARBUS: Let me just say this. Between cigarettes and DDT, that's exactly...

State Rep. TURNER: We're talking about something that is harmful to your health.

Mr. GARBUS: ...that's exactly related.

State Rep. TURNER: We're talking about something that's related to your health.

Mr. GARBUS: In other words, if you could--if you could-- no, if you could pass laws like this...

State Rep. TURNER: May--may I make my point, please? I'm--I intend to make...

Mr. GARBUS: could stop people--the newspapers or the media--from commenting on tobacco, DDT, anything that is dangerous.

RIVERA: OK. Go ahead, Bob.

Mr. GARBUS: There's no difference.

RIVERA: All right. Hold it, Marty. Go ahead, Bob.

State Rep. TURNER: I--I in--I--I want to finish my remarks.

RIVERA: Go ahead. You got it.

State Rep. TURNER: I realize there's a rudeness involved, but I would like to say that...

RIVERA: He's from New York, Bob.

State Rep. TURNER: ...number one, that there is a difference here in that we are talking about a DDT product. Here we're talking about the safety of a food product that is not manmade. We're talking about a manmade product, such as DDT.

Second thing I'd like to mention is that I am a firm believer in the First constitutional Amendment, as all Americans should be, but I think that there should be some responsibility involved in this that--that entails involvement of truth. And--and I think if--let us just assume this--let's compare this in some manner to a--a airplane boarding area, where someone shouts, A bomb!' or, A gun!' and--and there's laws against that now that keep people from doing this kind of thing that panic people, that might cause people to hurt themselves. There is a requirement that truth and responsibility be involved when--when an issue is made like this, when an accusation or an allegation is made. Somewhere, there has to be a truth factor involved.

Mr. GARBUS: Now, Mr. Turner, that...

State Rep. TURNER: And I think, then, that--that makes a great difference in--in the First constitutional Amendment.

RIVERA: Mar--Marty, let me ask you just to hold...

Mr. GARBUS: All right.

RIVERA: ...hold your rebuttal till the next segment. I've gotta take a quick break. Back in a flash. The Beef Against Oprah continues.


RIVERA: I want to go right to Jim Mattox, who joins us in Austin, Texas, along with Jim Hightower--Jim Mattox, former congressman and former attorney general in the great state of Texas.

Now your successor, Jim, Dan Morales, refused to sue Oprah under this statute. Do you think he did that in recognition and realization of the fact that he had no chance?

Mr. MATTOX: I think, in all probability, and I--and I--I think also that it'd have been very difficult to establish the damages with a specific farmer also. Th--it's just--it's--it's so difficult to try to show that one statement made anything happen. I'm always kinda surprised when we look at these folks that--that deal with the stock market. Stock market goes up and down; they say, Well, it was because of Alan Greenspan's statement,' or the s--such-and-such's statement. I never have been able to figure out those things and how one statement can make the market drop out. And I like Oprah, but I don't know whether her statement has got that much impact on the cattle market throughout this world. I think it's an international matter. And I think the issues are f--far broader than that.

But I--I think if you look at the fundamental question that exists here--it's whether or not the news media should be able to raise critical issues. And I think with the growth of the Alzheimer's disease a--and other kinds of debilitating mental illnesses that--that--that are on the rise in this country, I think it's--it's entirely appropriate for the news media to say, Is there something in our diet, in our--in the chemicals we're using on our products--in--in our food processing capabilities that are causing this to happen?'

And I think the best example that you've already given is the fact that the tobacco industry, theoretically, could sue under this statute because of the remarks that are being made towards the tobacco products now, suggesting that they--that they cause cancer and--and a s--and a wide assortment of other diseases. And I think that's the best--tha...

Mr. MANTERNACH: That's absurd. That's absurd.

Mr. MATTOX: I know, and I think that's...

RIVERA: Well, who--who sai--is that Dan Ma--Manternach? Go ahead, Dan.

Mr. MATTOX: I think...

Mr. MANTERNACH: Yes. That's absurd, to compare--there's so much scientific evidence about tobacco compared to what little evidence there is that we're going to have mad cow disease in the US herd. That's an absurd comparison.

Mr. MATTOX: Well, I'm not sure it is absurd. I don't--I don't know how you...

RIVERA: Absurd today, may be not absurd 10 years ago.

Mr. MATTOX: I--it might not--let me tell y--you have to remember...

RIVERA: Well, I--I've gotta put you on pause, Jim, 'cause I've gotta take another one of these breaks--short segment.

Mr. MATTOX: Sure.

RIVERA: Long segment coming up. Please stay with us. Coming back in just a minute. Stay tuned.


RIVERA: ...(Joined in progress) Woman Walking is what we're calling our debate over whether or not Texas would or should execute Karla Faye Tucker. We'll get right to that.

Before we do, I wanna surprise David Kaplan and--and say that, to a certain extent, I agree with Dan Manternach, the president of the Professional Farmers of America, and with State Representative Bob Turner, who co-sponsored the so-called food disparagement law down in the Lone Star State, to this extent: There is an awful lot--maybe less now than there was in the '70s and '80s, but there's still an awful lot of whining, exaggerated reporting about the dangers of this or that additive. I remember in my own family--and it's not more than six months ago--reading an article or hearing my wife read it in front of our two girls about how eating more than two hot dogs a day can give you leukemia. And remember red dye No. 2 and radon and fluoride is gonna make your--I don't know. S--how do you control the media when the story is always about the house that burns, not about the house that doesn't burn? The story's always about the one person who gets sick, not the 20 billion people who are fine and well and thriving on--you know, on Double Whoppers with cheese.

Mr. MANTERNACH: The key is balance, Geraldo. The key is making sure that when somebody gets on the media to make a wild claim that there are qualified people to give the other side of the audience and that the host of the media shows some objectivity by not taking sides...


Mr. MANTERNACH: ...and letting the viewers decide who makes the strongest argument.

Mr. GARBUS: The Professional Farmers of America could've gone on TV. They could've bought time. They could've done exactly what Manternach says. They could've tried to fight speech with more speech. And that's just the way you do it. And those...

Mr. DAVID KAPLAN (Criminal Defense Attorney): And, Geraldo, the...

Mr. GARBUS: And those newspapers, the media, that constantly put out stories that are not credible, they ultimately lose their credibility.

RIVERA: David Kaplan.

Mr. GARBUS: And that's the way you should deal with it.

Mr. KAPLAN: Well--and you're--and you're entitled to have a free discussion around your dinner table and--just the same as in this country we're allowed to have an open forum and a free discussion in--in the newspapers and in the--in the media. And you don't quash that, because the risks are too great.

Mr. MANTERNACH: Also, I'd like to--I'd like to add just one more point, that this is not an issue of farmers' interests vs. consumers' interest. Consumers are hurt as badly as farmers by reckless reporting. Now take--in the case of cattle, if you destroy a cattle market and you overkill a breeding herd, it's gonna take almost three years before you get that supply of beef back into the consumer market that never should've dropped out of the market in the first place.

RIVERA: All right. David Kaplan, what about a change...

Mr. MANTERNACH: So consumers suffer for a long time.

RIVERA: ...of venue in this case? You know, they've got bumper stickers, The only mad cow in--around here is Oprah,' on the bumpers of vehicles in Amarillo.

Mr. KAPLAN: Well...

RIVERA: How about a change of venue? How about getting that case to Dallas?

Mr. KAPLAN: Well, while I've never represented a tomato that's been insulted in an area where that--the--it couldn't get a fair hearing, I think in this particular case it seems like it's not gonna be a difficult case for her to win. Change of venue probably be--be appropriate if she's in the midst of the country that is most affected by it. But I don't see it a problem. I agree with what's been said. The First Amendment's gonna protect her and--and other discussions similar to hers.

Mr. MANTERNACH: Yeah, but this ca--this...

RIVERA: OK. Jim Hightower, has at least this discussion given some pause for thought amongst those who would criticize this very vital all-American industry?

Mr. HIGHTOWER: W--well, I don't think so because it's--it is a silly accusation that is being made by the--the beef processing industry. And that's essentially what we're dealing with. Let's quit saying that this is about farmers vs. consumers. The--the typical cow-calf operator, the typical family rancher out there is not the one who is doing this, is not the one who is creating the--the mad cow diseases or the Downer syndrome or what--the E. coli contamination of food. That's happening at the feed lot industry. You have basically three companies that control about 90 percent of the beef processing and the beef feeding in this country. This is a matter of corporatized agriculture vs. consumers. Consumers are aware of this. They have a very legitimate interest in saying, Wait a minute. We don't believe you when you say, "Trust us, " because people are dying on a daily basis, on a yearly basis as a result of these industrialized practices.'

Mr. KAPLAN: And, Ger...

Mr. HIGHTOWER: Consumers have a right to ask these questions, and the media is appropriate a place to have that discussion.

Mr. KAPLAN: And, Geraldo, this show is a perfect example. Should we all be defendants in a suit now? I mean, the discussion I've heard on this show, which is an open forum, has been an intelligent discussion, doesn't seem any--any bit different than the discussion that puts Oprah and her program in the defendant's seat. That just shouldn't happen.

RIVERA: What--what do you think about that, Bob Turner?

State Rep. TURNER: I--I don't see it that--that way. This--this case, though, I'd like to repeat, is not an issue. This is not what the legislation was all about. This legislation was probably not to provide a--a format in which we could sue but to--to make reporters think and--and give some responsibility to their reporting.

Mr. HIGHTOWER: To intimidate reporters, is what this is about, Senator.

State Rep. TURNER: So it was--I would say it was more a...

Mr. GARBUS: In other words, it was--it was an attempt to...

State Rep. TURNER: ...more a preventive type thing than it was a--to--to try to get into lawsuits. That--that was my objective in the legislation. I would say that this case is to be decided by the court. And--and--and I don't really have any opinions in this particular case. I simply am talking about the legislation and the purpose of the legislation for a short-life, long-term production type agricultural product to produce--that protects producers.

RIVERA: Well, I'm...

Unidentified Panelist: Yeah.

RIVERA: ...I--I--I must say--yeah, I--I agree that there's a lot of whiny reporting going on, but th--a law like this, just like that law that got me so angry yesterday that protected ski resort operators, basically immunizing them from almost all civil liability--I don't like when special interest get special breaks. And it seems to me that this is a bit of--of intimidation.

Mr. GARBUS: Geraldo...

RIVERA: And I--I--I don't like it. To me, that--that stinks and I'm--that's--that's just the way I feel about it.

Mr. GARBUS: If I can just...

RIVERA: I--I predict Oprah's gonna win big time.

Mr. GARBUS: If I can just say one thing...

RIVERA: Go ahead, Marty, and then we'll move on.

Mr. GARBUS: I think what Bob Turner said was right, namely that this legislation was aimed at stopping reporters. It was at--aimed at stopping you, The New York Times and all other papers from commenting about things that Mr. Turner doesn't want commented on. It's exactly the purpose of it. And that's what the First Amendment strikes down.

RIVERA: And when I leave this show, I'm gonna go have some steak frits.

Beef with Oprah tests food speech laws

01/13/98 By Anita Manning, USA TODAY 
A legal battle set to begin next week that pits talk show host Oprah Winfrey against a group of Texas cattle ranchers could test the validity of new laws in 13 states that ban malicious criticism of food. The ranchers are suing Winfrey over a 1996 show during which an anti-meat activist suggested beef industry practices could promote mad cow disease.

Their suit will be the first test of "food disparagement" laws, which aim to protect farmers and ranchers from frightening and false claims about their products. Supporters of the laws say it's only fair to require responsibility when it comes to saying things that could alarm the public unnecessarily and hurt the food industry.

Critics say the laws, enacted as consumers' concern over food safety is at an all-time high, are an effort to squelch debate on public health issues.

"What's more important than what we eat and what we drink?" asks Sandra Baron, executive director of the Libel Defense Resource Center. "Why would the public want those products, more than anything else in America, to be protected from criticism?"
She hasn't seen the Texas statute, she says, but such laws generally are aimed at making it easier to bring lawsuits against those who make "statements that disparage fruits, vegetables, meat, poultry and fish, and make it harder to critique or criticize the means by which they're grown, transported, processed, distributed or sold." But where, she asks, will it end? "I think there's an enormous risk that these laws will be applied to other categories of life," Baron says.

John Stauber of the Center for Media & Democracy, co-author of Mad Cow U.S.A. (Common Courage Press, $24.95), agrees.

"If the food industry can change libel laws, why not the chemical industry? Why not the auto industry? There probably are carmakers, he suggests, who would welcome "a car disparagement law."
That's not likely to happen, counters Washington, D.C., lawyer Dennis Johnson, who wrote the model on which the state statutes were based. The laws are meant to give farmers or ranchers legal recourse if someone knowingly makes a false claim about a food that causes consumers to refuse to buy it - and the grower to lose money, he says.

A food grower "has a one- or two-week window to do business. If the tomatoes or asparagus are ready to be picked, they gotta be picked," Johnson says. That doesn't apply to nonperishables. "Cars are going to be around awhile. The rule is designed for the farmer because he has one specific problem: that it is time sensitive."

The Oprah show that triggered the cattle ranchers' case aired on April 16, 1996. That was just a month after the British government had announced that 10 of its young citizens were dead or dying of a brain disease that might have been caused by eating beef from cows sick with mad cow disease, a similar dementia.

A guest on the show, Howard Lyman of the Humane Association of the U.S., compared bovine spongiform encephalopathy (BSE, the technical name for mad cow disease), with AIDS. He raised the possibility that a form of mad cow disease might exist in the USA, though the U.S. Department of Agriculture has never found a case.

Lyman pointed out that dead cows were ground up and used as a protein additive in cattle feed, a practice that is thought to have led to the emergence of BSE in Britain. The practice has since been banned. On hearing this, Winfrey expressed alarm and, turning to her TV studio audience, said, "It has just stopped me cold from eating another burger."

The audience applauded but Wall Street did not. The price of cattle futures dropped almost immediately and stayed down for two months. The effect on the market is a testament to the power and influence of Winfrey. But the beef industry has its own muscle, and it didn't wait long to use it.

Texas rancher Paul F. Engler of Amarillo claimed he lost $6.7 million as a result of the Oprah show, and he, along with more than a dozen other beef ranchers, filed suit against Winfrey, Lyman, Harpo Productions and King World Productions, citing the Texas food disparagement law.

Since 1994, food disparagement laws also have been passed in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma and South Dakota. The laws grew out of a 1989 60 Minutes television report on the pesticide Alar. The report raised questions about the safety of apples, especially for children, Stauber says. "The apple industry sued because it said untruths were said about apples, and the industry suffered."

But the industry lost its suit, he says, because it couldn't convince the court the 60 Minutes story was not true. "So the food industry decided to change U.S. libel law."

The Winfrey civil trial, which is expected to begin Tuesday in U.S. District Court, Amarillo, before Judge Mary Lou Robinson, is the first case brought under any of these state statutes and could signal whether they will stand up in court.

A second lawsuit has been filed, also in Amarillo, by a group of emu ranchers who charge that their business was slandered by an American Honda ad that ran from September 1996 through August 1997. The ad, meant to be funny, featured an emu rancher offering advice to a young man with the words: "Emu, Joe, it's the pork of the future." The emu ranchers say the ad "injured their good name."

"These laws," Stauber says, "are a disaster for anyone who wants to exercise free speech rights regarding food safety issues. . . . It's completely un-American."
And they may be unconstitutional, Baron says.
"Most of the (food disparagement) bills have been written in such a way that they undermine basic elements of the old common law and libel law. "I don't think they'll withstand constitutional scrutiny."
All parties involved have been placed under a strict court order not to speak publicly about any aspect of the trial. The National Cattlemen's Beef Association issued a statement saying it has no policy on the laws, but its members "are in support of efforts by agriculture and livestock producers to address economic havoc caused by sensational and untruthful reporting by the media."

Steve Kopperud, senior vice president of the American Feed Industry Association, says the laws give beleaguered farmers and ranchers a legal tool to use when "unfounded or capricious allegations" are made by "animal activists . . . trying to promote a political agenda." The bills do not say,

"Thou shalt not speak ill of meat and milk," Kopperud says, "but if you make a statement relative to the safety of a product and you knew or should have known the public statement is false, be prepared to prove it. There was never an intent to muzzle free speech, nor impinge on the First Amendment."
Some consumer advocates don't see it that way. "These laws are designed to create a chilling atmosphere so that no one should make any statement contrary to the orthodoxy of the food and cattle industry," says consumer activist Jeremy Rifkin of the Foundation on Economic Trends and its Pure Food Campaign.
"The food industry is doing itself a disservice by lobbying for these laws," he says. "It shows they're not confident in these foods." He acknowledges that sometimes food growers are injured by warnings raised by consumer advocates, and "sometimes we're wrong. But we all do have the right to have a robust debate around issues that concern the American consumer."
Caroline Smith DeWaal of the Center for Science in the Public Interest fears the laws could stifle public discussion about theoretical causes of foodborne disease.
"A lot of scientific study is about asking questions, postulating, developing theories about what is happening. If you have the facts, that's fine, but if you're working on something new, like mad cow disease or a new pathogen where we don't know the facts, it's important to be able to discuss ideas about how these might be getting into the food supply without fearing a lawsuit."
Lawyer Johnson says no one need fear legal action for debating or putting forth valid scientific theories.
"If someone sues under this bill, you're going to have to prove that this person knew the statement was false when he made it and that there are demonstrable damages," he says. "The burden is on the company or farmer or plaintiff who is suing to first show that the statement is false and that the person knew it was false. The law is "not designed to chill free speech, it's not designed to stifle debate or to protect factory farming. It's designed to protect the small rancher so when we have a debate, the debate should be scientific or clearly identified as opinion." [The Wall Street Journal reported that the principle litigant owns a $650,000,000 a year feedlot business. -- webmaster]
But some experts say the laws already have muzzled public expression. Emory University law professor David J. Bederman says attorneys for media outlets call him every week concerned about stories to be aired or printed that could possibly run afoul of food disparagement laws.
"Stories get spiked every week," Bederman says. "The evil of these laws is that they do precisely what they were intended to do, which is to chill speech."
Three years ago Bederman attempted unsuccessfully to challenge Georgia's food disparagement law. The judge threw it out, saying a court case was unnecessary because no one had been sued under the statute.

The laws differ slightly from state to state, Bederman says, but all apply to public comments concerning perishable agricultural products and "they also agree that what they are trying to make actionable are false statements going to whether a food product is fit for human consumption. Clearly the plaintiffs in the Oprah case are saying that what Lyman said is that eating beef will give you mad cow disease."

He predicts that the ranchers' attorneys will claim Lyman implied that "a large percentage of the cattle population (in the USA) is already infected with BSE. What Lyman's lawyers will say is no, but that there is a risk. There's going to be a lot of science in this trial, in large part with both plaintiffs and defendants squaring off with what Lyman said." The laws could have "very profound" constitutional implications, he says. "If it weren't so serious, it would be laughable."

Testing a New Brand of Libel Law

Saturday, January 17, 1998 By Sue Anne Pressley Washington Post Staff Writer
AMARILLO, Tex., Jan. 16On one side is Oprah Winfrey, the talk show host from Chicago so influential that her fondness for a certain book can send it soaring to the top of the bestseller lists. On the other is a collection of angry Texas cattlemen who contend that Winfrey and her popular show have hurt their business by hosting a rant on "mad cow" disease -- and that she ought to pay dearly for what she and her guests said.

The legal standoff that begins Tuesday in a federal court here on the high, wind-swept plains of the Texas Panhandle already has inspired jokes and derisive comments. But those on both sides of the issue agree that this is a serious battle with far-reaching consequences. It is the first court test of a new wave of "food disparagement" laws -- the so-called veggie libel laws -- now on the books in Texas and a dozen other states. As such, they say, the trial here is important to food producers, food-safety groups, the media and consumers throughout the country.

Supporters of the laws, which grew out of the 1989 scare involving the use of the chemical Alar in apple orchards, say they provide a much-needed recourse for farmers and ranchers when their products are attacked with unsubstantiated claims. They argue, for example, that while former president George Bush can say he hates broccoli because that is his personal opinion, no one should be able to say broccoli kills people without being able to prove it. "The laws do not say, `Thou shalt not speak ill of meat and milk,' but that you'd better be able to stand up in court and prove what you said," said Steve Kopperud, senior vice president of the American Feed Industry Association, a national trade group for the producers of commercial livestock feed.

Critics of the laws, however, say they have a muzzling effect on free speech at a time when Americans' concern over the safety of their food is growing. They say that if the cattlemen win, a flurry of similar lawsuits, many of them frivolous, and more disparagement laws could ensue.

"This is a historic lawsuit, and it's getting attention because Oprah Winfrey is the defendant, but one would hope it would get the attention anyway because these are a brand new type of law that fundamentally shifts the burden of proof, and that is designed to chill free speech," said John Stauber of the Center for Media and Democracy and co-author of a new book, "Mad Cow U.S.A." "They were put in place by the agribusiness industry, I believe, to intimidate and silence critics and quell discussion and debate of food-safety issues just when we most need that discussion and debate."
The "Oprah" show that sparked this conflict aired on April 16, 1996. That was shortly after British officials announced that mad cow disease had been linked to the deaths of 10 people in Britain who ate infected beef and that their brain-wasting ailment may have been spread through protein supplements produced from the ground remains of dead cattle that were fed to cattle in the form of meal.

Howard Lyman, a former Montana cattle rancher who is a vegetarian activist and an official with the Humane Society of the United States, appeared on the show and compared the mysterious disease and its incubation period to AIDS. In addition, he said it already is rampant among cattle in America, a claim hotly disputed by the cattle industry.

"A hundred thousand cows per year in the United States are fine at night, dead in the morning," Lyman said on the program. "The majority of these 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 affect thousands."
Winfrey pointed out that Lyman's AIDS comparison was "an extreme statement," to which he responded, "Absolutely." Later, she turned to her audience after Lyman supplied more details and said: "Now doesn't that concern you all a little bit, right here, hearing that?" The studio audience responded with cheers. "It has stopped me cold from eating another hamburger," she continued. "I'm stopped!"

After the broadcast, cattle prices plummeted to near 10-year lows, although defense attorneys have disputed the reasons for the drop. But Paul Engler, a cattle feedlot owner here, and other local cattlemen were so incensed by the program that they filed a lawsuit, claiming more than $12 million in losses.

U.S. District Judge Mary Lou Robinson has since barred all parties involved in the case from discussing it.

But in Amarillo, where the beef industry is a $3 billion-a-year business and where 25 percent of the cattle in the United States are fattened in feedlots before going to market, the upcoming trial has produced both opportunities for civic promotion and a rally around the cattlemen.

Winfrey, whose top-rated show is watched by millions, plans to tape her daily program here for the duration of the trial, beginning next week, in the Amarillo Little Theater, and all over town, the Oprah Watch is beginning: Has she rented an entire floor at the Ambassador Hotel? Will she sightsee at the Helium Monument and the Cadillac Ranch, where a number of multicolored Caddies are buried nose-down in the earth? Will she dine at the Big Texan or the Country Barn, and will she don cowboy boots?

"As far as the spotlight in Amarillo, I love seeing it happen," said Bobby Lee, co-owner of the Big Texan, where a 72-ounce steak is free to anyone who can consume it in under an hour and where about 7,000 people have succeeded in that feat since 1962. "Barring another celebrity skiing accident or political scandal, the Super Bowl and the `Oprah' case will be the biggest things in the country in the next couple of weeks. Lee, however, diplomatically remains neutral. "We love the cattle business," he said, "but we love the `Oprah' show, too."
Others in town already have had a little trouble maintaining a strictly neutral stance. The Amarillo Globe-News reported this week that Nancy Seliger, wife of Amarillo Mayor Kel Seliger, wrote to Winfrey inviting her to come to a meeting of her local book club, and received a personal telephone call from Winfrey, who asked advice on where to shop and eat in town but said she had to decline the invitation because of court appearances.

Also this week, an internal memo distributed Jan. 9 by the president of the Amarillo Chamber of Commerce, Gary Mohlberg, came to light, saying that no "red carpet rollouts, key to the city, flowers, etc." would be given to Winfrey during her time here and that the chamber "fully supports the cattle feed industry because they are a vital part of Amarillo." Roundly criticized, Mohlberg retracted the memo. Chamber spokesman Eric Miller said that the memo was "misinterpreted" and that the chamber is "doing anything we can to help" Winfrey and her production company.

[NAACP prepares for Oprah Winfrey visit

UPI US & World Sun, Jan 11, 1998
AMARILLO, Texas -- The Amarillo chapter of the National Association for the Advancement of Colored People is preparing (Sunday) to welcome Oprah Winfrey, after the city's Chamber of Commerce gave her the cold shoulder. Chapter president Alphonso Vaughn says members are "dismayed, shocked and mystified" by the chamber's rebuff of Winfrey, who is coming to Amarillo to fight a lawsuit brought by a beef producer over one of her shows.]

Despite the atmosphere, interested parties on both sides of the issue are predicting a lengthy, even tedious trial, lasting from three to six weeks, crammed with expert medical, scientific and economic witnesses -- and revealing, some predict, more about mad cow disease than local cattle ranchers are perhaps willing to hear.

The U.S. Department of Agriculture banned the use of protein supplements made from rendered meat and byproducts from cattle and other ruminants last summer, but critics say the unknown qualities of mad cow disease and its incubation period -- and the possibility of contaminated meal >from other animals -- mean the threat is not removed.

For the past 20 years -- until this summer's ban -- the animal-based protein supplements have been a common addition to cattle diets, the critics point out.

Observers familiar with the case say the trial likely will focus more on Lyman's statements than on Winfrey's remarks about hamburger, which to many seem little more than a personal opinion. But they say that as producer of the show, she also may be held responsible.

"I'm not against beef. I'm not against cattlemen," Winfrey said in her first deposition taken in June, before the USDA ban. "Why are we feeding cattle to cattle? And I'm going to rest a lot easier and will be able to enjoy a hamburger once the regulations have been put in place that say we are no longer feeding cattle to cattle. That was the issue for me."
Emory law professor David Bederman, who tried and failed to test the validity of a similar Georgia statute, has been waiting for just such an opportunity to settle the question of whether these laws are constitutional.
"Many of these laws punish speech that is uttered in utmost good faith, when later it is proven the information is false, and my view is that under the First Amendment, it is not enough simply to show that the information was false; you have to show when the speaker disseminated the information, they knew or should have known it was false," Bederman said.
Dennis Johnson, a Washington agricultural lawyer who drew up the concept on which 13 states have based their food-disparagement statutes, stresses that the Texas law applies only to time-sensitive, perishable products and is meant to protect the small farmer, not the agribusiness industry. [The Wall Street Journal reported that the principle litigant owns a $650,000,000 a year feedlot business. -- webmaster].

But he is watching the case with interest. "How goes `Oprah,' so will go the law," he said, adding that 14 more states are considering similar bills.

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