So far, agricultural disparagement laws, which aim to level the playing field of public critique by ensuring that free speech is also fair speech, have hardly been used. In fact, they've never even been tested. But, their potential seems to be keeping the rest of the gang a little more honest.
"I think they've been a disincentive, at least for some activists," says Steve Kopperud, senior vice-president of government affairs for the American Feed Industry Association (AFIA). "Our goal is to at least give producers a tool to use to go after critics."
Apples Led The Way In an effort to help its members protect themselves from unfounded, damaging public claims, AFIA crafted a model agricultural disparagement law. The impetus was that apple producers found general business libel and common-law disparagement laws offered them no legal recourse in the aftermath of the media-fueled Alar scare that turned the apple industry rotten in 1989. Some of the 13 states that currently have agricultural disparagement laws used the AFIA model in total or in parts to make their laws.
"This is a way to protect individuals, who otherwise fall through the cracks of general business disparagement laws," says Bob Turner, the Texas state representative who authored and championed the agricultural disparagement legislation which became a Texas state law in 1995. "The intent of the bill was never aimed at creating a basis for a law suit. It was aimed at making people think twice before ruining an industry with unfounded claims," says Turner.
In a layman's nutshell, with ordinary business disparagement laws, a specific business - XYZ Cattle Co., as an example - must prove false and defamatory comments aimed at them damaged their business. Conversely, most agricultural disparagement laws are designed to help producers hold critics accountable for making known and false claims about the product, which in turn cause harm to all producers of that product.
So far, Turner says the law has only been used three times in the Lone Star State. One claim was tossed out of court, one was settled out of court, and the most infamous case of all is still in the appeals process.
Cactus Takes On Oprah In 1996 Paul Engler, president and founder of Cactus Feeders, and other plaintiffs used the Texas law to sue Oprah Winfrey, her production company and a guest on her show, claiming false comments made about beef and bovine spongiform encephalopathy fueled a slide in cattle prices. Ultimately, the judge in that case ruled that live cattle were not a perishable product and that the case had to be tried under general business disparagement laws. In that scenario, plaintiffs were forced to prove the false claims were made about them and their product, specifically. Thus, the current appeal.
Opinion Vs. Disparagement "One problem we had, and that the media never fully understood with the Oprah trial, is that it wasn't really about Oprah's opinion of hamburger," says Kopperud.
The media focused on Winfrey's comment about being too scared to eat hamburger, rather than the accusations her production company allowed allegedly false comments to be made without scientific evidence.
In fact, the case and the law used to sue her became new First Amendment flagpoles for activists to rally around.
As an example, consumer activist groups like the Center for Science in the Public Interest are working for repeal of the laws nationwide. In Texas, a bill was introduced during the last legislative session to repeal that state's law.
Ultimately, the effort died in the House of Representatives. "Free speech has to be fair speech," emphasizes Burt Rutherford, communications director for the Texas Cattle Feeders Association, which helped push for legislation in Texas. "The law doesn't say you can't speak an opinion. What this law does say is that if you make a specific claim against an agricultural product, you'd better be able to back it up."
Turner explains, "Freedom of speech folks think you should be able to say whatever you want, truth beside the point ... The way the Texas law is worded, the statement has to be made knowingly and intentionally, and the burden of proof is on the person bringing the suit."
For those hiding behind freedom of speech, Kopperud points out there have always been restrictions on speech in this country. One of the most dog-eared examples is that no one can stand up in a crowded movie theater and shout, "Fire!" without being held accountable for the results. Unless, of course, the theater is actually on fire.
"First Amendment protection extends to personal opinion, and there is no law that overturns that," says Kopperud. "But when you make a claim that a product will do X, Y and Z, and say it to affect the sale of the product, then there should be a way to protect yourself. No one says you can't say something, but if you say it, be able to answer for it."
Moreover, Kopperud, who was a reporter for 10 years and holds freedom of speech dear to his heart says, "I've come to believe these laws in many ways are a form of consumer protection."
Manufacturers and producers must jump through all kinds of legal hoops to make claims about their product, protecting the public along the way. He believes agricultural disparagement laws protect consumer on the other side of the fence by keeping others from making misleading statements about products.
Swinging While There Is Time Currently, state agricultural disparagement laws are a study in patchwork contrasts that make it tough to gather ahead of steam for them nationally. Some protect only meat and eggs. Others protect only vegetables. Still others blanket all perishable agricultural commodities. And, none has been tested in a court of law.
Even so, Kopperud says, "In some respects, I think there is more resolve to do these kinds of laws today." And, some who have the laws believe they're making critics weigh the value of their rhetoric.
"The laws are still doing what we intended them to do, in that they're keeping the issue at the forefront," says Rutherford. "If nothing else, I think the opinion would be that the laws have kept the issue alive about what is good, honest, fair reporting."
Likewise, Scott Dewald, executive vice-president of the Oklahoma Cattlemen's Association (OCA) says, "I think it has been a help. It has sent a message to people that if they're going to say something about our perishable agricultural products in Oklahoma, they'd better be accurate about what they're saying."
When OCA worked with other agricultural groups to enact state agricultural disparagement laws there was no pressing problem and virtually no opposition. Dewald explains, "We didn't have a crisis, like Alar. There was no burning issue on the table, so we went in and quietly did it in an anticipation of something happening in the future."
Tougher Sledding In Other States Producers who want the same protection in some other states are finding the sledding tougher. George Gough, vice-president of the California Cattlemen's Association, says producers there have worked with other groups to enact legislation for several years.
"There's a feeling among our membership that their needs to be a leveling of the playing field. We definitely support some sort of legislation," he says. But they haven't been able to rally enough support so far.
As time goes on, Turner says support could be tougher to muster for all agricultural issues as agricultural representation continues to shrink within the legislative process. With that in mind, he believes producers must take more responsibility in protecting their own interests.
"Something people don't think about a whole lot is that if we let our own agricultural industry flounder and go away, we will become a food-deficient country," he explains. Keeping the safest most inexpensive food supply at home requires consumer support, but first it requires consumer education.
Although Kopperud believes there is even more resolve to enact agricultural disparagement laws today, he believes other efforts could make them unnecessary.
"We spend a lot of time and effort selling our products. Milk, meat and egg producers do a fantastic job. But I would like to see a tiny percentage of the money spent on product sales being spent to tell the public about how well the product is produced and how good the people producing it really are. Let's reintroduce the public to the American rancher and farmer.
"If we could spend just a tenth of a hundredth of a percent of all checkoff money (in all commodities) selling producers and production practices, I don't think we'd have to worry about agricultural disparagement laws because there wouldn't be anything to disparage," Kopperud says.