Veggie Libel Suits Are Meant to SLAPP Free Speech

The label "veggie libel law" makes the whole affair sound silly. But Oprah Winfrey is being sued for insulting beef, not beans. And the case is not trivial. If Oprah loses, we all lose some free speech and food safety protections.

The proper term is "agricultural disparagement laws." Thirteen states have already adopted such laws; 14 more, including my home state of New Hampshire, are considering them. In essence they say that anyone who makes a false statement about the safety of a perishable food or farm product must pay damages to anyone who is hurt financially by that statement. In some states the damages are set at three times the actual loss. In New Hampshire's bill, a false statement is defined as one "not based upon reasonable and reliable scientific inquiry, facts, or data."

These laws are not aimed at kids slandering spinach. They're aimed at consumer activists, environmental groups and the media. They are wielded by the folks who bring us pesticides, genetic engineering, radiation, and other questionable ways of producing or preserving foods. They say, basically, "don't question."

The business world is full of brochures and workshops showing companies how to sue critics for defamation. Lawyers call these suits SLAPPs -- Strategic Lawsuits Against Public Participation. A trial judge says: "They are suits without substantial merit that are brought by private interests to stop citizens from exercising their political rights.... The purpose ... ranges from simple retribution for past activism to discouraging future activism."

Here are some real examples. A landfill owner sued a Texas woman for $5 million for calling his operation a dump. An incinerator builder sued a high school teacher in Missouri for $6.6 million for writing an anti-incinerator letter to the editor. Canada's two huge logging companies, MacMillan Bloedel and Fletcher Challenge have sued hundreds of citizens, communities and environmental groups for saying bad things about clearcutting. Monsanto, maker of genetically engineered bovine growth hormone (BGH), sued several small Midwest dairies for advertising that their milk is BGH-free. McDonalds sued two British activists for putting out a pamphlet claiming that Big Macs are unhealthy and harmful to the environment.

Companies don't SLAPP on these suits in order to win them. Most are dismissed out of court. When they are tried, they are overwhelmingly decided against the plaintiff, and even the rare corporate win can be costly. After two and a half years in court McDonalds finally forced the two junk-food critics to pay damages totalling 0.6 cents for every dollar the company had shelled out in legal costs, and the trial did far more to publicize the activists' accusations than the activists ever could have.

But the legal outcome is not the point. The point is that the threat of legal action scares and silences all but the bravest of critics.

Now, as a grower I have to say that I do want protection against some rival at the farmers' market spreading unfounded rumors that my carrots aren't really organic. And as a writer, I think it's good that people can sue me if I publish false information that hurts them. But we already have means to protect ourselves against such problems. We don't need new laws that can be used by organizations with deep pockets and the ability to deduct legal expenses as a cost of doing business to intimidate individuals or organizations that voice legitimate concerns.

The targets of SLAPP suits tend to be the kinds of people and groups that first questioned the health effects of smoking, the indiscriminant use of DDT, toxic dumping, food adulteration, lead in paint and gasoline, and other abuses that industry preferred not to discuss. Even if we didn't have a sacred obligation to freedom of speech, we would be foolish to "chill" our watchdogs by threatening to haul them into court every time they bark.

Of course Oprah is hardly a defenseless ordinary citizen. The Texas cattle barons probably made a big mistake by exercising their wrath on her. It seems that she interviewed an author who warned against grinding up dead cows to raise the protein content of cattle feed -- cheap protein, but possibly a way of spreading mad cow disease. "It has stopped me cold from eating another hamburger," said Oprah on air. Shortly afterward the price of cattle futures on the Chicago Board of Trade plunged, but not, as far as I know, actual beef sales. Apparently Oprah has more influence over jumpy speculators than over the beef-eating public.

If Oprah loses this case, we might consider extending our ban on public statements that are "not based upon reasonable and reliable scientific inquiry, facts, or data" beyond farm produce to all topics. We could start with the cattle speculators' claim that Oprah caused the dip in the futures market. We could go on to political speeches, the average advertisement, and corporate claims that toxic chemicals don't harm us. Think what a blessedly quiet nation this would be, if we silenced all speech that couldn't stand scientific scrutiny!

But I don't expect Oprah to lose. I hope she takes this thing to the Supreme Court and reminds us all that democracy doesn't proceed by scientific disproof, it proceeds by vigorous speech, uttered fearlessly, and not always responsibly by anyone and everyone. The First Amendment doesn't say we can speak critically to government but not businesses. And we wouldn't have to speak so critically, if businesses would stop feeding dead animals to live ones, putting non-food substances into food, tinkering with genetic codes, and spraying the countryside with poisons.

If you feel insulted by that last sentence, sue me.

(Some of the material on SLAPP suits in this column was taken from a new book by Sharon Beder titled Global Spin: The Corporate Assault on Environmentalism, Chelsea Green Publishing, 1998.)