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The revelation that a Holstein dairy cow in Washington was infected with “mad cow disease” has sparked a renewed interest in the disease and in the safety of American beef. This naturally calls to mind the mad cow crisis in Great Britain during the 1990s. That time, however, it made news in the United States not as a public health controversy, but rather as a free speech controversy. In 1996, the Oprah Winfrey Show broadcast “Dangerous Food,” which included a discussion of the mad cow outbreak in Great Britain and the risk that it could occur here. Central to the program were the comments of Howard Lyman, a cattle rancher turned vegetarian activist who was a vocal critic of industry practices. Lyman stated that it was common then in the American cattle industry to give cows feed made from the carcasses of dead, possibly infected cows (thus transmitting the disease). He suggested that there was a risk of a similar outbreak of mad cow disease in the United States and that thousands of people could be infected with a variant of the disease. In the most-repeated line of the broadcast, Winfrey stated that Lyman’s report had stopped her cold from eating another burger. Veggie libel laws Winfrey, her show and Lyman were sued by Texas cattle producers under Texas’ so-called “veggie libel law,” which provided for a civil action and damages against speech stating or suggesting that a perishable agricultural product was not safe for human consumption, if those statements were not supported by reasonable and reliable scientific inquiry, facts or data (even though the show never mentioned Texas, the plaintiffs or their products). The 1998 trial in federal court in Amarillo, Texas, became a public relations bonanza for Winfrey. Midway through the trial, the veggie-libel claim was dismissed (under the reasoning that the law did not apply to the speech at issue because live cattle are not perishable agricultural products). The ordinary product disparagement claim went to the jury, which found in favor of Winfrey and the other defendants. Although resolved on statutory grounds, Winfrey’s case was regarded at the time as a victory for free expression. The current controversy over mad cow disease shows that the Winfrey case was indeed an important, if subtle, free speech landmark, because it illustrates the dramatic free speech defects in statutes that target speech, such as veggie-libel laws. Speech about food safety is political speech, the expression at the absolute minimum core of the First Amendment, which must be zealously guarded against laws that chill or discourage it. Speech about food safety addresses issues of government and public policy. Lyman criticized government policies that condoned the practices of the beef and cattle industries, specifically the feeding of cow carcasses to cows. He argued for a ban on that practice as necessary to avoid a similar outbreak in the United States, and, in fact, the Food and Drug Administration (FDA) enacted just such a ban in August 1997, less than one year after the broadcast. It is difficult to imagine speech more at the heart of public concern than the safety of the food that people eat and the policies regulating that food. That was true in 1906 when Upton Sinclair wrote The Jungle, calling attention to working conditions in Chicago meat-packing plants and leading to passage of the Pure Food and Drug Act of 1906. It was true in 1996 in the Winfrey broadcast. Indeed, much of what Lyman said to Winfrey has proven to be true and accurate. There was, prior to the 1997 FDA ban, a practice in the American cattle industry of feeding cows to cows. It appears that the practice did, in fact, cause mad cow disease in the cow in Washington, which, apparently, was given feed (apparently outside of the United States) made from the brains and spinal cord of an infected cow. And government perhaps is not moving quickly or aggressively enough to enforce its ban and to test for the disease. Of course, Lyman also warned of an epidemic of the disease that would make “AIDS look like the common cold,” which has not come to pass. To the contrary, statistics suggest that far more people (approximately 5,000 each year) become sick and die from other food-borne illnesses, such as salmonella. Nonetheless, the Winfrey show presented accurate statements about cattle industry practices and the risks inherent in those practices. It is impossible, as a First Amendment matter, to defame government; questions of public policy cannot be victims of character assassination. Generalized statements about policy concerns (such as the public-health need for enforcement of a ban on ruminant feed), even if false or inaccurate, must be accorded the full protection of the First Amendment. It is axiomatic that one purpose of the First Amendment is the free exchange of information and ideas for the purpose of discovering truth, particularly on matters of public concern. Such truthful information is chilled by the specter of civil damages. Veggie libel laws caused Winfrey to be hauled into court; she expended time, money and effort to defend herself. That she prevailed is beside the point. Winfrey’s broadcast, and her guest’s speech, were examples of truthful, political core protected expression that never should have been the subject of litigation. The events of the past few weeks illustrate, starkly, the importance of this speech and the reason that it must be vigorously protected against civil actions under the veggie libel laws that remain on the books in many states. Howard M. Wasserman, an assistant professor of law at Florida International University College of Law, wrote about this topic more fully in the February 2000 issue (Vol. 8, No. 2) of the William and Mary Bill of Rights Journal.

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