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
Paul, If someone posts a restaurant review saying the food is “icky” do you believe they should be subject to suit if sales are hurt? What if someone call the restaurant’s guacamole “green slime” (incidentally a phrase I think applies to all guacamole). I don’t. I want that information–then I can decide what to do with it based on the source. That is the nature of the marketplace of ideas. Requiring the press to present information in some kind of absolutely neutral way is to impose an impossible obstacle because words mean different things to different people. If you refer to a food item as being similar to foie gras, some would consider it a compliment and others to be disparaging. I’m curious as to how disparaging words must be before you would consider it actionable. Would “pink goop” be actionable, or “pink wet beef stuff processed with ammonia.”
Richard – there is a difference between doing a local review, even on local TV and doing a national expose with national exposure.
I’m with those favoring the beef industry and I am no fan of the beef industry in general. However, there is plenty to report on with facts without using disparaging names. In general, the beef industry uses massive amounts of antibiotics, growth hormones, and corn. Cows in the wild eat very little corn or any grain for that matter (and I am pretty sure they naturally shy away from antibiotics and growth hormones). Their bodies are meant to convert mostly grasses into protein, feeding them massive amounts of corn in the last months of their lives causes numerous problems that then must be fixed via antibiotics.
So call it what it is, describe how it’s made, but when you purposely use words to convey icky, and if such reporting hurts sales, pay the piper. As many have posted I may have the opinion that someone is a monkey’s whore, if I tweet that and it goes viral, and if said person is damaged by loss of income, I am pretty sure I may end up in court.
This case exemplifies exactly why the press is afraid to go after dangerous food purveyed by big corporations and special interests. For example, GMO food has been banned from the kitchens of the White House, yet it’s perfectly okay for children and families to consume food that is as much as a time bomb that eventually destroys the health of every consumer. Because we are a nation of media sheep, we only fear those dangers that the media broadcasts. Everyone knows the dangers of guns, for example, but no one knows the dangers of GMO food. The degree of our ignorance is indicated by full parking lots of millions of restaurants, every one of which serves GMO food in one form or another. Even Bill Clinton needed bypass surgery. Now a devout vegan, he regrets being so ignorant of the food dangers in our nation, something he won’t say out loud. If there really was free speech in this country, bypass surgeries would go the way of buggy whips. Meantime, your next bite of food is just another straw that will eventually ruin your health (or has already), if not kill you prematurely. As much as I dislike Diane Sawyer, I’m hoping she prevails for the benefit of every consumer who is entitled to the best health possible.
As a generic term, I have come to regard “slime” as a liquid substance that is thick, slippery, and at least somewhat thixotropic.
From what I understand, lean finely textured beef is ordinarily a thick liquid substance that is slippery and somewhat thixotropic.
From what i understand, lean finely textured beef is ordinarily pink or pinkish in colour.
From what I understand, lean finely textured beef is ordinarily a pink liquid substance that is thick, slippery, and somewhat thixotropic.
Since when is a scientifically accurate description of something properly actionable?
Interpretation is in the mind of the interpreter. As Gerald Zirnstein evidently described lean finely textured beef with scientific accuracy, as a pink liquid substance that is thick, slippery, and somewhat thixotropic, surely Beef Products, Inc., needs to sue all the people who are so scientifically Illiterate as to be unable to interpret a scientific descriptor of a food substance with enough scientific acumen as to be able to avoid deceiving themselves?
Ever read the book by the late Loyola Law School Professor Emeritus, Robert Benson, The Interpretation Game: How Judges and Lawyers Make the Law, Carolina Academic Press, 2007?
Interpretation of a received message is a property, and a function. and is solely in the province, of the recipient of a message; and is not a property, or function, or in the province of, the sender of the message.
Ever read any edition of S. I. Hayakawa, Language in Thought and Action?
I grew up in the Midwest not far from a commercial hog meat packing plant. I once heard a guy who worked there joke that the only part of the hog there’s no market for is the “oink”. I stopped eating hot dogs shortly thereafter.
Steve H. Calling someone a “child rapist” is an assertion that a particular fact is true–that the person raped a child. Calling someone a “scumbag” does not, whether or not the opinion is valid. Calling something that is obviously pink and slimy “pink slime” is true as to the specific facts it asserts. To the extent that people believe the name implies a view that the substance is gross, it does not assert a fact, but an opinion.
LOL! Clutch hit, Mark.
nick:
Oh, there already is one:
http://pinkslime666.bandcamp.com/
Prediction: There will be a rock group named Pink Slime, soon.
This litigation, as JT says, is likely to backfire on them.
It will become “THE PINK SLIME CASES” in the news and law journals.
Too late. It’s called pink slime because that’s what it is.
Andy: Good question. Can the media be held accountable for broadcasting slurs, if the slur had been uttered by someone else, somewhere else? How about their use of “alleged” when talking about a suspect being arrested? If the cop says “Timmy raped her”, can the media then report “Timmy raped her” or “police caught the rapist, named Timmy, shown here in front of his house on 123 Main Street….”
LLewis: I don’t consider calling, on national TV, a company’s product “slime” as honest debate. Would it be “honest debate” if I called you stupid? (No offense intended; making a point, only.)
correct me if I am wrong (I know you will) but was not “pink slime” in general usage when this story was new? If so, can it be traced to ABC as the origin?
Andy – I had never heard of the product before, much less ‘pink slime.’
We can hope that the court does what is right to protect free speech. We can also take action ourselves, boycotting companies that try to suppress honest debate.
“Calling a product “slime” is in my view clearly opinion”. Would it be opinion if a reporter, while on the air, called a doctor a whore; or a lawyer a scumbag; or a professor a child rapist? So, you hold that any word uttered by a reporter that is not based on fact is, in fact, an opinion and protected?
I am with the beef people on this one. You kill their product, you pay for it. If they had called it what the industry called it, nothing would have happened. But no of us wants to eat ‘slime’ do we, Prof?
We don’t have much free press left. The media is limited by the corporate limits and when even those limits don’t stop the disclosure of corporate bad conduct the courts seem happy to oblige the “aggrieved” corporation.
Not only is it pink slime. It’s pink slime with a little ammonia thrown in for good measure.