Let's throw the book at 'veggie libel laws'

January 13, 1998|By Ellen Goodman

BOSTON -- I may not be a true First Amendment absolutist. I mean, after seeing pictures of the vacationing Clintons, I could imagine banning photographers from shooting any woman over 40 in a bathing suit.

Still, it never occurred to me that I could be sued for libeling a lettuce or maligning a melon.

This is pretty much what's happening to talk-show host Oprah Winfrey and one of her former guests, Howard Lyman. A week from today, they are to go on trial in Amarillo, Texas, for disparaging hamburger.

Mad cow talk

In the spring of 1996, Mr. Lyman, a vegetarian and Humane Society official, took part in an ''Oprah'' show on mad cow disease. Mr. Lyman took on the practice of grinding up dead cows and feeding them to live cows. ''If only one of them has

mad cow disease,'' he said, ''that has the potential to infect thousands.'' In response to this cheery thought, Ms. Winfrey blurted out: ''It has just stopped me from eating another burger!''

At that exact moment, Paul Engler, an Amarillo cattle feedlot operator visiting in Chicago, went bananas -- if that isn't slandering bananas. When the price of beef dropped, he and others in the Texas cattle industry decided to sue Oprah -- the woman, the show, the guest -- for $6.7 million.

Now, on the surface, this sounds pretty fruity -- if that isn't maligning fruit. But in the wake of the Alar-in-apples scare when consumers dropped apples like hot potatoes, Texas and 12 other states passed new laws prohibiting ''the false disparagement of perishable food products.''

Such laws to protect the reputation of carrots and spinach were immediately nicknamed ''the veggie libel laws'' or ''the veggie hate laws.'' Quite frankly, they flunked my giggle test. Even Texas Gov. George W. Bush, son of the president who hated broccoli, refused to support this legislation.

But the very fact that this case wasn't thrown out, that the law is having its first big, expensive test, is enough to make anyone who's said a nasty word about meat feel downright cowed.

Mind you, the cattlemen don't have a very good beef against Ms. Winfrey. First of all, in order to win, they must prove that statements on the show were false.

In raising the specter of mad cow disease in America, Mr. Lyman was speculating about what could happen, not what was happening. More to the point, his concern about feed was seconded by the government, which just banned the fairly disgusting culinary habit of serving dead cows to live ones.

Secondly, they must prove that Mr. Lyman and Oprah Winfrey knew or should have known that they were making false statements. And they have to convince a jury that her crack about burgers was of a different dimension than the comments millions of us have made about junk food: ''That stuff's going to kill you.''

Even if they do all that, the cattle folk still have to prove that the ''Oprah'' show ruined the market. Ms. Winfrey may sell books, but does she run the commodities market?

The reason this case is hard to stomach is not because the cattle moguls might win. It's because, win or lose, they might scare off the next news bulletin.

As Emory Law Professor David Bederman, a lover of both hamburgers and the First Amendment says, ''These laws were intended to stifle speech.'' A nervous agribusiness wants to make media outlets think twice -- about legal costs. Mr. Bederman, who has been informally tracking this chilling effect in veggie hate-law states believes, ''A lot of stories are being stillborn.''

Some of the most important investigative work over the past century has been about food safety. Today we're in another wave of worries about everything from imported strawberries to fast-food E. coli to cancer-causing chemicals.

I understand fears of fear mongering and alarms about false alarms. But sometimes the choice is between a stifled alarm and an occasional false alarm. Between protecting consumers and protecting agribusiness.

The Texas veggie libel law demands a level of scientific proof that would have stifled early debate about tobacco. If Oprah Winfrey can't say what she thinks, can scientists speculate out loud about the first signs of trouble? Can a newspaper report what they say?

The most bizarre part of the new veggie libel laws is that in 13 Mind you, the cattlemen don't have a very good beef against Ms. Winfrey. First of all, in order to win, they must prove that statements on the show were false.

states it's now become easier for a persimmon to sue than for a public person. That's not just unconstitutional, it's nuts. No offense, of course, to the nuts.

Ellen Goodman is a syndicated columnist.

Pub Date: 1/13/98

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