We have previously covered the “pink slime” controversy and claims by the industry that the term is defamatory toward a beef product that it prefers to call “lean finely textured beef.” Now, the Supreme Court of South Dakota has cleared the way for a trial of ABC and and several correspondents for the network, including Diane Sawyer, over its coverage of the controversy in a case that threatens the right of the free press as well as free speech.
Beef Products Inc. brought the defamation action in South Dakota and notably included Gerald Zirnstein, a U.S. Department of Agriculture microbiologist, as a defendant. It was Zirnstein who reportedly coined the catchy phrase “pink slime” for the beef product. The company is seeking $400 million in claimed actual and consequential damages, treble damages, punitive damages and attorney’s fees and costs.
Judge Cheryle Gering of the Union County Circuit Court previously ruled that Beef Products Inc may pursue most of its claims against ABC, a unit of Walt Disney Co. Here is her opinion. The Supreme Court refused to review the decision on an interlocutory appeal.
The product widely called “pink slime” is what the industry calls lean finely textured beef (LFTB) and boneless lean beef trimmings (BLBT). It is made by heating the fatty trimmings that remain after cattle carcasses are cut into roasts or steaks. The process involves a centrifuge that separates the bits of lean mean the scraps contain.
The company is alleging that the defendants convinced many that it was producing “some kind of repulsive, horrible, vile substance that got put into ground beef and hidden from consumers.” It is alleging that the coverage led to massive layoffs and the closure of three of four of the company’s plants.
The lawsuit includes claims of common-law product disparagement, violation of the South Dakota Agricultural Food Products Disparagement Act and tortious interference with prospective business relationships. The lawsuit bears a strong resemblance to some other lawsuits involving disastrous coverage. The two leading examples both ended in losses for the Plaintiffs, though these lawsuits are often motivated by a desire to educate the public through litigation.
The first such case that comes to mind is Auvil v. CBS, 67 F.3d 816 (9th Cir. 1996). Sixty Minutes was showed after airing “A is for Apple,” a story criticizing the growers for their use of Alar, a chemical sprayed on apples. The shows devastated apple sales, but both the district court and the appellate court ruled for CBS. In a statement with obvious bearing on the current case, the Ninth Circuit stressed:
We also note that, if we were to accept the growers’ argument, plaintiffs bringing suit based on disparaging speech would escape summary judgment merely by arguing, as the growers have, that a jury should be allowed to determine both the overall message of a broadcast and whether that overall message is false. Because a broadcast could be interpreted in numerous, nuanced ways, a great deal of uncertainty would arise as to the message conveyed by the broadcast. Such uncertainty would make it difficult for broadcasters to predict whether their work would subject them to tort liability. Furthermore, such uncertainty raises the spectre of a chilling effect on speech.
The second case that comes to mind is Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir. 2000). The case is based on a show involving Oprah Winfrey called the “Dangerous Food” show, which dealt with “Mad Cow Disease.” Winfrey discussed the new-variant CJD in Britain. After hearing from various experts on the dangers of Mad Cow Disease, Oprah stated that she would not eat ground beef. Showing the power of Oprah, the court reported that “following the April 16, 1996, broadcast of the “Dangerous Food” program, the fed cattle market in the Texas Panhandle dropped drastically. In the week before the show aired, finished cattle sold for approximately $61.90 per hundred weight. After the show, the price of finished cattle dropped as low as the mid-50′s; the volume of sales also went down. The cattlemen assert that the depression continued for approximately eleven weeks.” The industry sued but lost before a Texas jury.
The media used the slang term for the product in the context of covering the story. Moreover, calling a product “slime” is in my view clearly opinion and the inclusion of the scientist in my view is vexatious and unfounded. Likewise, the targeting of ABC raises serious questions of freedom of the press and the threat posed by tort liability vis-a-vis the first amendment. I would bet against the viability of the lawsuit in the long run absent a showing of clearly false statements as opposed to opinion.
While I can understand the view of the state Supreme Court that it must defer to factual findings of the trial court and generally interlocutory appeals are disfavored, the trial court decision is highly dismissive of the core free press and free speech implications of the ruling. While well-researched and detailed, the court brushes over the opinion aspects of some of these statements and dismissed statements to the effect that there is no evidence that the product is unhealthy. The case presents precisely the chilling effect that the Supreme Court has repeatedly sought to avoid for the media in cases like New York Times v. Sullivan. I am particularly troubled by the scorched earth litigation approach of Beef Products in targeting Zirstein for a mere nickname. A catchy nickname to be sure as well as a negative one. However, it has taken off precisely because it seems to capture how this product looks to many people.
Source: USA Today