EVST 255: Environmental Politics and Law

Lecture 11

 - Safety Claims and Free Speech: Preemption and Defamation


This lecture presents three cases: Bates v. Dow, a lawsuit brought by peanut growers against the producers of a pesticide that degraded their soil; the Alar case, in which environmental organizations and the media successfully pressured EPA to ban a carcinogenic pesticide used on apples; and the Texas Cattlemen’s Association’s lawsuit against Oprah Winfrey for her coverage of Mad Cow Disease. Using these three cases, Professor Wargo discusses the legal concepts of preemption and defamation. He gives an overview of their origin and use in regulating agriculture and protecting human health and the environment. Through the Texas Cattlemen’s Association case, he shows the effect of state “veggie libel” laws on free speech.

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Environmental Politics and Law

EVST 255 - Lecture 11 - Safety Claims and Free Speech: Preemption and Defamation

Chapter 1. Introduction to Legal Concepts: Preemption and Defamation [00:00:00]

Professor John Wargo: Okay, let’s start in. Got a fairly large agenda today. And I wanted to remind you that next week, we’re moving on to air quality. So check your syllabus and read the material for section next week.

And today I want to talk about two principles in law, one being preemption and the other being defamation, and to give you a couple of case histories. And I’m going to start out talking about Bates v. Dow. And then I want to talk about two cases, one, product disparagement, and the other one is known as the Alar case. And another is a case that was brought by the Texas Cattlemen’s Association against Oprah Winfrey. And I’ll show you a couple of video clips of that.

First of all, preemption has its origin in the Constitution, within the supremacy clause that states, “This Constitution and the laws of the U.S. shall be the supreme law of the land, and the judges in every state shall be bound thereby.” So that within air quality law, within pesticide management law, within pharmaceutical law, tobacco law, occupational law, states are prohibited from adopting certain standards that are different than the federal government. And the purpose behind this is not to create a patchwork quilt that is really comprised of non-uniform standards so that when corporations wish to trade goods or provide services across state boundaries, they basically have the expectations. It’s often applied to situations that are risky or products that are risky. And the failure to warn is often a key question. And we’ll raise that in the case today.

With respect to pesticides, Congress traditionally deferred to states to regulate threats to health and safety. But since 1970, it’s exercised its power to preempt state or local regulation in a number of areas, particularly with respect to warning labels on pesticides. So there are a variety of theories of damage recovery. So if you imagine that say someone comes to your home and promises to give you a green lawn by applying fertilizers and insecticides, and all of a sudden you notice an acrid taste in your well water, and also your children start to feel awkward or strange. And you find out that the chemicals that were applied were neurotoxic substances. And what are your rights? Basically, you could argue that — we have percussion section out there on the street, throwing I think rocks or bricks into one of these big metal barrels. So I apologize for that. So you can imagine yourself in a situation where you conclude that federal law didn’t protect you against that. You feel like you’ve been damaged. It’s going to cost you money to either drill a new well or to put infiltration equipment. And what about the health effects on your family?

So there are a variety of theories of damage recovery. And one is that the failure to warn provides a justification for seeking recovery of damages. So remember what I argued about the difficulty that most people have in understanding warning labels, the difficulty of taking complicated scientific information and reducing it in a way that would make it intelligible and make you capable of knowing how you should behave in order to prevent risk. For example, should you be responsible to know that you have sandy soils and that your well is a shallow well, and it’s an old well, and the casing is cracked? I mean, are you really responsible to know that? Should that information be on a warning label?

Negligence is another theory for recovery. So was the product made in a negligent way or was it used in a negligent way? How about design defects? Listening to Good Morning America today, I was intrigued by litigation that is growing, class action suits against Toyota because of their accelerator pad catching, or brake defects. So some defect in production or design that leads to a higher level, higher concentration of risk or hazard and subsequent damage.

How about failure to disclose incident reports? So that Dow Chemical Company was fined nearly $800,000 because it had been reported to Dow by a variety of families that they felt that they had medical problems that were associated with using their products. And they were required under federal pesticide law to report those incidents back to the Environmental Protection Agency, and they did not do so within the time limit, there was a significant delay. So the failure to disclose incident reports. And again, with the auto defects that we’re witnessing in the press and in the showrooms today, the same issue applies. So when did the corporation know that the pedals stuck or that the brake system was not working correctly?

So the failure to report back to government agencies that have regulatory responsibilities, whether it’s pharmaceuticals or cars or pesticides or cosmetics or foods, these generally carry significant penalties. And because of preemption that’s built into pesticide law and air quality law, et cetera, states have often denied access to courts to use these theories of recovery to secure compensation. So the state courts have often not agreed to hear the cases.

Chapter 2. The Importance of Bates v. Dow [00:06:37]

This is why Bates v. Dow is so important. Bates is a case in which twenty-nine peanut growers in Texas alleged that Dow AgroSciences had produced a chemical called Strong Arm. Strong Arm, they claimed damaged their peanut plants back in the year 2000. And the pesticide label itself claimed that “Use of Strong Arm is recommended in all areas where peanuts are grown.” Now, when it was used in the Texas peanut farmland, where the soils exceeded a pH of seven point two, it damaged both the peanut crop, and it failed to control the weeds. So the activity of this chemical is mediated by the acidity of the soil. And by 2001, EPA had approved a new label for the chemical, including a new warning, “Do not apply Strong Arm to soils with a pH of seven point two or greater.” So this case was decided in 2005. This label was in force for four years before the decision date.

So eventually, the case wound its way up to the Supreme Court. And this is quite a feat. In many instances, claims that are brought in state courts do not make their way up to the Supreme Court. It can often take decades or even a half a century before a case is believed to be appropriate for judicial review by the highest court in the country. So they found that “Congress surely would have expressed its intent more clearly of it had meant to deprive injured parties of a long-available form of compensation. Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in distributing inherently dangerous items.” In other words, the Supreme Court was looking at these lawsuits to seek recovery as really a last resort. So it represents the failure of federal law, it represents the failure of state law or local law to offer sufficient environmental protection or protection of public health.

So what’s a damaged party to do? What are you going to do if you’ve been damaged? Well, you probably would consider litigation. So the Supreme Court continued, “It seems unlikely that Congress considered a relatively obscure provision like Section 136VB (which is the preemption clause) to give pesticide manufacturers virtual immunity from certain forms of tort liability. And we’ve been pointed to no evidence that such tort suits led to a crazy quilt of FIFRA (federal pesticide law standards) or otherwise created any real hardship for manufacturers or EPA.” So the argument that you would have an uneven regulatory playing field among the states had no substance to it, or that the manufacturers would be damaged significantly by these claims, because they’re expensive, they’re time consuming, and few people actually have the resources or capacity to bring the lawsuits.

So central questions today really will involve a question of freedom of speech and when is it appropriate to limit speech about environmental and health hazards, intellectual property rights. Who should own the right to knowledge of risk? Should corporations be capable of holding that as a secret? Or should they be obligated to disclose that to the public in the form of a warning label or a disclosure of an incident report? What should the standard of proof be? And how should the falsity of a statement be judged? The falsity of a statement on a label or the falsity of a statement made by a party that is challenging a corporation that they were damaged by exposure to their product? And where should the burden of proof lie? Should the burden of proof lie with the plaintiff to prove the falsity of criticism, or the defendant to prove truth of criticism?

Chapter 3. Trade Libel Law: The Alar Case [00:10:53]

And to explore this area of product disparagement more fully, I want you to consider one case. This is a case of a chemical known as Alar that you probably did not experience. But it was in wide use in the United States and in different parts of the world back in the 1980s and early 1990s, and it was used on apples. And it was used on apple orchards basically to cause stem thickening, so it would hold the apple on the tree longer and it would keep the apple from falling down and getting bruised. So it would maintain the commercial quality and the grade of the apple. And it would also cause uniform ripening. Uniform ripening is important, because you don’t want part of a tree, perhaps that’s facing the sunshine, to have apples that are ripe and then all the apples that are on the north side of the tree in more shade that would remain green. So it provided economic advantage to orchard owners in a variety of ways.

This is a systemic compound, which is interesting. It means that it’s absorbed up through the plant roots itself into the plant tissue. So you may think that some residues are only on the surface of a fruit or a vegetable and if you peel it or if you wash it, you could get rid of it. Here’s an example of a compound that that would not be helpful for.

It’s not easy to detect. When this chemical was being reviewed and became a public target for criticism of its manufacturer, I went up to the state of Massachusetts, because the state of Massachusetts was trying to figure out if they were going to ban the compound, as it was detected increasingly in foods. And I went to their laboratories, their state laboratories, and they had not even developed a detection method yet. Speaking to their analytic chemists, they didn’t even know how to find this in foods.

So think about that for a minute. What that means is that the government approved the use of a chemical on certain crops when it knew that there was no accepted method for detecting it in the food or in processed forms of the food or in water supplies if it happened to contaminate water supplies. So that’s quite curious and it might give you some ideas about prior requirements before introducing new technologies.

So it has an unusual characteristic. It produces unsymmetrical dimethylhydrazine, UDMH, which is also a space shuttle rocket fuel, but only under conditions where the chemical is heated. Now where would food be heated? Well, it’s commonly heated when it’s processed or when it’s pasteurized. So when you take an apple and you grind it up and you squeeze all the juice out of it to make apple juice, it’s commonly heated up for the purposes of killing bacteria and protecting human health.

Apple juice in the 1980s was also exploding into the marketplace, in part because of different packaging technologies. So it used to be available in large glass bottles, but the advent of juice boxes so that children would take these flavored juices to school on a routine basis in really small cardboard and plastic containers, it caused apple juice consumption to skyrocket. So that apple juice, within a matter of a decade, became one of the more heavily consumed foods by young children.

So it was introduced by Uniroyal in 1966 and registered by the Department of Agriculture, because EPA wasn’t in existence until 1970. And in 1973, it was found to produce cancer in mice. Between 1977 and ‘78, the National Cancer Institute found that that study was credible, and they conducted their own studies that found carcinogenic effects in animals, raising the question how should we look at data from animal testing? And what should we infer from that about human health risk? Well, during conservative political administrations, we’ve tended as a society not to worry too much about these low level cancer risks in the food supply. But remember that at this point in time, the Delaney Clause in the Food, Drug and Cosmetic Act was in place that had what was called the de minimis risk standard built into it. So it also had the Food and Drug Administration that was interpreting the de minimis standard to allow low levels of risk in the food supply.

So EPA concluded eventually in 1980 that it was carcinogenic and then negotiated with Uniroyal for several years, and that produced no action. In 1985, they found that both Alar, which is the parent compound and the metabolite, the UDMH, was a “probable human” carcinogen. So this is the next step up in the level of concern. It’s not just an animal carcinogen — it’s “probable human.” The next step up, by the way, is “known human carcinogen.” And there are more than a hundred now compounds that are characterized as known human carcinogens, such as benzene and 1,3-butadiene, which exists in diesel exhaust and other combustion situations, such as in wood smoke, or virtually any time fossil fuel is being combusted. And in 1985, some feedback from their own scientific advisory panel raised questions about the quality of the data. Can you actually calculate a cancer risk?

So what is the threat? And what can publicly be stated about that threat? Well, the Natural Resources Defense Council, one of our largest environmental groups, conducted their own analysis of kids’ exposure, recognizing that kids were eating a lot of apples and applesauce and drinking a lot of apple juice. It was a very common drink to be served to infants in place of infant formula or milk. And has the EPA violated the public trust? So let me see if I can get this going.

This is a 60 Minutes report that was prepared on this controversy. So that the Natural Resources Defense Council brought their study to 60 Minutes and asked them, “Would you like to release this information on your show?” And the answer was yes.

Ed Bradley [on video]: [inaudible] — in our food supply was a substance sprayed on apples to keep them on the trees longer and make them look better. That’s the conclusion of a number of scientific experts. And who is most at risk? Children, who may someday develop cancer from this one chemical called daminozide. Daminozide, which has been sprayed on apples for more than twenty years, breaks down into another chemical called UDMH. The EPA’s acting administrator, Dr. Jack Moore, acknowledged that the EPA has known about the cancer risk for sixteen years.

Jack Moore [on video]: There’s no question if it was a new chemical not yet on the market and it was brought to the EPA to be evaluated, that it would not get on the market, based on the data that was available.

Ed Bradley [on video]: Dr. Moore, I can’t understand that. I mean, you’re telling me something that if this stuff came into you just today and it was brand new, it wouldn’t get on the market. But because it’s already out there, we can keep using it? That doesn’t make sense to me.

Jack Moore [on video]: You’ve just identified one of the paradoxes of the statute. What if a pesticide gets its license, gets its registration, is on the market, despite what everybody might think, the burden of carrying unreasonable risk finding basically goes onto the government. All right?

Ed Bradley [on video]: But you see, a lot of these chemicals got on the market when we didn’t know that they were cancer-causing agents, and they’re on the market now. And we know that they do cause cancer. But you say we can’t take them off because they’re already on the market and they went on the market when we didn’t know they caused cancer.

Jack Moore [on video]: That’s the paradox of statute.

Ed Bradley [on video]: [inaudible] Is it fair to say then, Dr. Moore, that there are laws on the books that are putting us, particularly our children, at risk?

Jack Moore [on video]: Could be. Could be.

Ed Bradley [on video]: While Dr. Moore blames a law which requires him to balance the health risks to the public against the economic benefits to the growers, Congressman Jerry Sikorsky blames the EPA.

Jerry Sikorsky [on video]: There are two laws. One is the Food, Drug and Cosmetic Act that says quite clearly if this chemical causes tumor in laboratory animals, not malignant tumors, any kind of tumors, it’s supposed to be pulled off the market.

Ed Bradley [on video]: Jack Moore, the deputy administrator of the EPA, says that he’d like to take it off the market, but he’s afraid that the manufacturer, Uniroyal, that makes this chemical, could successfully sue the EPA.

Jerry Sikorsky [on video]: So let them sue. That’s his job. He’s with the Environmental Protection Agency. Go to a cancer ward at any children’s hospital in this country, see these bald, wasting away kids, and then make a decision as to whether the risks balance over the benefits.

Ed Bradley [on video]: Kids are at a high risk from UDMH because they drink so much apple juice. The average preschooler drinks eighteen times more apple juice than his or her mother. If those apples were treated with daminozide, the cancer risk is perilously high. Janet Hathaway is the senior attorney for the Natural Resources Defense Council.

Janet Hathaway [on video]: What we’re talking about is a cancer-causing agent used on food that EPA knows is going to cause cancer for thousands of children over their lifetime.

Ed Bradley [on video]: Uniroyal Chemical, which makes daminozide under the trade name Alar, declined to be interviewed for this report. But in a letter, they said, “Any risk from daminozide or UDMH, if it exists, is negligible.” Nonetheless, preliminary results from Uniroyal’s own study already show high levels of cancer in laboratory animals. Janet Hathaway’s organization, the Natural Resources Defense Council, has just completed the most careful study yet on the effect of daminozide and seven other cancer causing pesticides in the food children eat.

Janet Hathaway [on video]: Just from these eight pesticides what we’re finding is that the risk of developing cancer is approximately 250 times what EPA says is an acceptable level of cancer in a population.

Ed Bradley [on video]: Two hundred and fifty times?

Janet Hathaway [on video]: That’s right. What that means is that over a lifetime, one child out of every 4,000 or so of our preschoolers will develop cancer just from these eight pesticides.

Ed Bradley [on video]: And EPA says acceptable limit is one out of?

Janet Hathaway [on video]: One out of a million they say is acceptable.

Ed Bradley [on video]: Are they scaring people needlessly? Are they fear mongers?

Jack Moore [on video]: Well, there’s no question that if the risk is greater than the one in a million calculation, it’s a cause for concern to disease.

Ed Bradley [on video]: You’ve had a chance to look at the NRDC study. It says children are being bombarded with a pesticide risk several hundred times greater than what the agency says is acceptable.

Jack Moore [on video]: Risk unacceptable, yet magnitude of risk is less by our calculation than [inaudible]

Ed Bradley [on video]: Dr. John Grave a professor of —

Professor John Wargo: I’m sorry, this will take just one second. [pause]

So think about what Janet Hathaway, the senior attorney just said. “Over a lifetime, one child out of every 4,000 or so of our preschoolers will develop cancer from just these eight pesticides.” Think about the wording, the phrasing very carefully. This is quantitative risk assessment. It’s loaded with uncertainty from many different sources. You’re forced to infer from animal evidence. You’re forced to understand the pattern of exposure, how the compound might behave inside the human body.

Then she said, “Alar, the most potent cancer causing agent in our food supply, is a substance sprayed on apples to keep them on the trees longer…And what we’re talking about is a cancer-causing agent used on food that EPA knows is going to cause cancer for thousands of children over their lifetime.” These are statements of certainty that caused widespread fear in the population. Senator Joe Lieberman spoke to me during this situation. And he said he walked immediately, after watching 60 Minutes, over to his refrigerator. He took out his jar of apple juice and dumped it down the drain and started making phone calls. This happened all over the country as millions of people had witnessed this. Jack Moore, who you saw, the acting EPA administrator, said that the evidence, yes, that he relied upon was suitable for a decision to say that Alar indeed was a carcinogen.

And the media reaction was really quite striking. All of the major media outlets picked this story up, Newsweek, et cetera. Donahue, on The Donahue Show, he said “Don’t look now, but we’re poisoning our kids.” The consumer reaction was really quite rapid and devastating for the apple industry. Apple product sales dropped thirty percent in a month, particularly on apple juice. School boards in New York and Virginia and California stopped serving apples in their lunch programs. Growers claimed losses of $250 million and they engaged in a lawsuit against both 60 Minutes as well as the Natural Resources Defense Council. Within a matter of six months, the economic concerns were so high that the industry itself was begging EPA to please regulate and prohibit the use of this chemical.

Now, that’s really quite striking. So that you’ve got really kind of a very different type of regulatory theory here. What is regulation doing? It’s really providing a sense of legitimacy to manufacturers of different kinds of products so that if you know that a chemical or a product, it could be a food, it could be a car. If you know that it’s been reviewed by a regulatory agency, that act of regulation really constitutes certification of that product’s utility and also its safety in the marketplace. So the fact that the growers and the grocery stores and even Uniroyal asked EPA to move quickly so that the economic damage would be limited and consumer confidence could be restored, particularly because this product was not used on all apple products. So it really is a form of symbolic politics, which I think is quite striking. So that regardless of whether or not the regulations are health protective, they create a sense of legitimacy of products and services in the marketplace so that in one sense, our corporations need these regulations so that they create consumer confidence.

So the Washington apple growers, there are 4,700 of them, claimed that well, there was no evidence linking Alar to human cancer and the animal evidence was insufficient, and they called this a product disparagement or a trade libel case. And in this situation, the growers faced the burden of proof. So they needed to prove that the statements were made knowingly to be false, the statements were deliberately made to induce monetary damage.

And this is a form of trade libel law, defamation. So there are several forms of libel, slander, and sedition. Libel, the definition is defamation through print materials. Slander is oral defamation. In the English common law tradition, libel in private enterprise generally found favorably to plaintiffs. And sedition, you’ll recall, is any political criticism that tended to diminish respect for government, laws, and public officials. The common law definition of libel was decided by a famous court case in 1933. It covers “all written communications that tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, and to induce an evil opinion of one in the minds of right-thinking persons and to deprive one of their confidence and friendly intercourse in society.”

Well in this case, the Ninth Circuit Court of Appeals found on the absence of human studies that “The fact that there had been no studies conducted specifically on the cancer risks to children form daminozide, one of the arguments on the part of the industry, does nothing to disprove the conclusion that if children consume more of a carcinogenic substance than do adults, they are at higher risk for contracting cancer.” So what’s interesting about this comment by the appellate court is that they’re not looking for proof that this chemical caused cancer in children. They’re looking for elevated cancer risk. And on the falsity of the statements, a product disparagement plaintiff has the burden of proving the falsity [of the claim]. And this statement refers to individuals, not to any overall message. And if a jury were given the task of interpreting the uncertainty of a message, it raises the specter of a chilling effect on speech. So think about the relationship between this type of a court case and the freedom of the individual to express themselves or express their opinion about the dangers of different products or human behaviors.

So this case was decided by the Ninth Circuit fundamentally on a First Amendment choice referring back to a famousNew York Times v. Sullivan case in 1964, where Sullivan, who was a police commissioner in Alabama brought a libel action against four African American clergy and the New York Times. The Times had published an advertisement back in 1960 in support of civil rights activism among students, a struggle for the right to vote, a legal defense of Martin Luther King against a perjury charge, and charges of repressive police misconduct, including false statements. And the trial judge had instructed the jury that the advertisement was libelous, that legal injury was implied, that falsity and malice are presumed, and that punitive damages should be awarded.

So that in this case, the Supreme Court found that it [the lower court decision] was constitutionally deficient for failure to safeguard freedom of speech in the press required by the First and the Fourteenth Amendment. And debate on public issues should be uninhibited, robust, wide open, and that it may well include vehement, caustic, and sharp attacks on government and public officials. With respect to actual malice, because in order to find disparagement or liability in this situation, there’s a need to demonstrate actual malice. The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. What’s malice? Well, it’s with knowledge that the claim was false when it was made, or with reckless disregard of whether it was false. And the burden of demonstrating the falsity rests on the plaintiff.

Chapter 4. Veggie Libel Laws and The Chill Effect on Free Speech [00:31:22]

Now, this seems to give the media a fairly wide berth in the kinds of claims that they can make. In the wake of this case, many states passed what are thought of now and labeled as veggie libel laws. So that rather than placing the burden on a plaintiff to demonstrate the falsity of the statement, they place the burden on the individual that makes the claim of significant risk or hazard. So there are many states that have adopted this statutory change. And what this means is that it opens the way for slap suits.

What is a slap suit? It basically is a suit that intimidates people from making claims about the quality of the environment or causes of its loss or subsequent health damages. So among these twenty or so states that have adopted these laws, for example, now I will not give a lecture where I am making a claim of risk. So that might be thought of as a chilling effect on free speech in a way. So if I’m, say, being taped on a radio show, that radio show is broadcast in a state where one of these veggie libel laws exists that would place the burden on me to demonstrate the proof that my claim is backed up by high quality science, that will pull me into court, it will cost me thousands of dollars, hundreds of thousands of dollars even, to defend myself. So that the influence of this form of law is really quite striking.

What also is interesting about this evolution of state laws that reverse the burden of proof is that clearly it’s been found by the Supreme Court as being an unconstitutional shift in the burden. Yet none of these state laws have been taken up to the Supreme Court for consideration. So think about that. These laws have been in place now for well over a decade, and all environmental groups, all public health interest groups understand the nature of these laws and they’re all very self-conscious about the nature of the claims that they make.

Now, I want to show you this. Oprah Winfrey hosted a show on mad cow disease. Mad cow disease is an illness that is caused by a prion and believed to be associated with beef that are feed other cattle parts in their cattle meal. So Winfrey hosted Howard Lyman, who described the process of slaughterhouses and beef rendering and how the parts were ground up and then put into animal feed and fed back in the United States to cattle that were sold for food. And this was the mechanism that he and others believed had caused the outbreak of mad cow disease in Great Britain. Now there are laws that prevent that from happening, but at this point in time, this represents another rather interesting case on product disparagement. [pause] Give me one second here. [pause] I’ve lost my internet connection, so we’re on hold for a moment. [pause] My apology for that delay.

Howard Lyman [on video]: With me on the stage, to the left of me a grandmother whose granddaughter is dying of the human form of mad cow disease in England. To the right of me, a guy from the National Cattle and Beef Association, points at me and says “Here is a man who believes within ten years we could have diseases that make AIDS look like the common cold.” And I said, absolutely. And she said, “That’s such a strong statement.”

I said, “Oprah, we have 100,000 cows a year alive at night, dead in the morning. We round them up, grind them up, turn them into feed, feed them back to other cows. We go out and collect road kill, deer, elk, possum, raccoons, scrape them up off of the street, grind them up, and feed them back to cows. And then we take pets, city of Los Angeles, 200 tons of pets, full of chemicals that were used to kill them, 200 tons a month are ground up, turned into feed, and fed back to our food animals.”

This time Oprah’s eyes are as big as saucers. I knew that I’d got her. She turns around and looks at the guy from the National Cattle and Beef Association and says, “Dr. Weber, are we feeding cows to cows?” I’ll never [break in audio] what he had to say, he said, “Well, you know, there’s a limited amount of that going on.” I believe that about ninety-five percent of the cattle fed back in factory feed lots are eating the remains of other animals.

And the next thing out of Oprah’s mouth then gets us sued. Oprah says, “That just stops me cold. I will never again eat a burger.” Now, she didn’t say, “I think the meat’s infected.” She didn’t say to the millions of viewers, “You shouldn’t eat any.” She just said, “That stops me cold. I will never again eat a burger.” Now I knew when I went on that show that thirteen states had a thing called the food disparagement law. The food disparagement law says that it’s against the law to say something you know to be false about a perishable commodity. I didn’t say anything I thought to be false. I told the truth.

Well, we were taping the show, took about two hours. When we got done taping the show I walked up to Oprah and I said to her, I said, “Hey Oprah, give me ten minutes, I’ll get you off of chicken.” Oprah looked at me and said, “Only one animal a day.” [audience laughter] So, I went about my business. Couple weeks later, I got a call that said, “Do you realize you’re being sued with Oprah Winfrey and Harpo Production by a group of Texas cattlemen?” And I said, “No, can I put you on hold?” I raced into my library, I inventoried my vegetarian cookbooks. I knew those cattlemen wanted those vegetarian cookbooks bad. I went back and said, “I can’t talk to you right now, I’ve got to put in a call to Oprah.” I called Oprah and left a message, and I said, “Oprah, if we lose this suit, I’m going to throw in my vegetarian cookbooks. You’ve got to put up the money.”

Well, we end up getting sued in Amarillo, Texas. I don’t know how many of you have ever been to Amarillo, Texas. It’s not the end of the world, but it’s clearly visible from there. If you’re going to give the world an enema you take the hose to Amarillo, Texas. The largest employer in Amarillo, Texas, happens to be the slaughter facility killing cattle. Bumper stickers all over town said, “The only mad cow in Texas is named Oprah.” I knew we were in trouble when I went and saw my lawyer, and I said to him, “We need a change of venue. There is no way in the world that we can win here in Amarillo.”

So we filed with the judge for a change of venue. We walked in, who’s the judge? Seventy-two-year-old lady, a tough old heifer. We asked for a change of venue, she picks up the hammer, slaps it down, and says, “Motion denied. Bring in the jury pool.” They brought 140 people in. You never saw so many hats, boots, and belt buckles in all your life. I said to my lawyer, “We need to find an appeal, because there’s no way in the world that we’re going to win here.” At the end of the day, we had twelve jurors, absolutely steeped in the cattle culture. My lawyer, he looks at me and he said, “They’re going to call you to the stand tomorrow.” He said, “The first question they’re going to ask you is whether or not you are a vegetarian.” I said, “I can handle that.” He said, “You damn well better, you’ll lose.”

Sure enough, the next day they called me to the stand. I’m on the stand with the plaintiff’s attorney is looking at me, laughing and giggling. And he says, “I can’t hardly say this. Hey, Mr. Lyman, is it true that you are a — [laughs] — a vegetarian?” And I looked at the jury and said, “I will not apologize for something that has saved my life.” Never again in that trial did they ever ask me about why I was a vegetarian. But they asked me every question you can imagine. I’m on the stand, the lawyer looks at me and he says, “Mr. Lyman, has anybody ever called you irresponsible?” I said, “Yes.” My lawyer’s sitting over there going, “No, no, no.” The plaintiff’s attorney thinks he’s found the key to the Gordian Knot. And he looks at me and he says, “Who?” I said, “My wife.” And the jury’s over there, been there, done that.

We were in that courtroom for six weeks. At the end of six weeks, that jury found Oprah, Harpo Production and myself not liable. The plaintiffs went out of their tree. They could not imagine that that jury, that homegrown jury, could find out-of-towners not liable. And they appealed with the Fifth Circuit Court of Appeals. We spent a year in the Fifth Circuit Court of Appeals. And at the end of the year, they came down with a unanimous panel decision that Oprah, Harpo Production and myself were not liable. And then they wrote an opinion that said, “Everything that Lyman said on the show was true and the truth is not actionable.”

The cattlemen couldn’t stand that and asked [inaudible] for a rehearing. It was denied. And then the cattlemen got together and went to state court and filed suit against Oprah, Harpo Production and myself with the state court. Thank God I did not live in Texas. I was able to move it from the state court to the federal court. They appealed that. We spent six years, hundreds of thousands of dollars of my money defending [audio break] to tell the truth. At the end of six years the judge finally threw out the case with prejudice, which meant the jury, or the plaintiffs could not re-file the case, that the statute of limitations had run out. So it became six years, hundreds of thousands of dollars, we were finally vindicated for standing up and telling the truth.

Professor John Wargo: So the core of this problem is the way that these state veggie libel laws shift the burden of proof. So under federal law, it’s really clear that the Cattlemen’s Association was under the burden of proof to demonstrate that the statement was knowingly false and delivered with malice with the intent to harm. But under state law, Oprah’s burden was to demonstrate that the statement is true with reasonable certainty.

So I’ll leave you with one thought on this, and the importance of fashioning law in a way that would protect free speech and open access to knowledge of risk and opinions on the part of experts. Justice Powell, in 1974 on truth and free speech, “There’s no such thing as a false idea, no matter how pernicious an opinion may seem, we depend [for] its correction not on the conscience of judges and juries, but on the competition of other ideas.”

So that’s it for today. Have a great weekend.

[end of transcript]

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