Will Texas require changes in Bible because of food disparagement?
* Oprah multi-medio bio: "Oprah Winfrey is the most successful woman in television to date. She has achieved a tremendous amount of success in her professional life, despite the odds of being born black, poor and having suffered from child abuse. This site will explore her success and how she has remained on top with the media and her viewers."
* Cactus Feeder litigant home page. Paul Engler, president of Cactus Feeders Inc. is not widely known to most Americans. Yet the Amarillo, Texas cattleman is the largest cattle feeder in the nation with $650,000,000 in annual revenue [source: WSJ].
For the true connoisseur of the ludicrous, few things can match the trial of Oprah Winfrey in Amarillo on charges of libeling cows. It was embarrassing enough when the Legislature passed the veggie libel law, outlawing the disparagement of Texas agricultural products. At the time, I warned that Big George Bush could be nailed for his well-known disparagement of broccoli. But even I never contemplated anything as silly as suing Oprah for announcing that she wouldn't eat hamburgers any more...."
"But even without the right to free speech, that law is so vague that even the Bible could be construed to contain passages that slander perishable Texas foods.� The Bible lists as unfit for human consumption animals with cloven hoofs -- pork -- and meat from fish that don't have scales -- Texas farm-raised catfish."
The Texas Cattlemen�s lawsuit against TV talk show host Oprah Winfrey could have profound implications for the future of free speech especially in terms of food safety. Despite the importance of the public policies that will be decided in this case, the court has imposed a gag order which prevents the parties from discussing the issues. So it is necessary for groups that aim to protect consumer interests to explain how this lawsuit attempts to stifle public debate about consumer products and especially the safety of our food supply.
In our more than 60 years of product testing and reporting Consumers Union, publisher of Consumer Reports magazine, has been the target of numerous threats, lawsuits, and misinformation campaigns intended to silence our criticism of dangerous and inferior products. We are currently being sued by two major automobile manufacturers as a result of our independent reports critiquing the safety of their vehicles. In the past, we have prevailed against the attacks due to our rigorous testing and quality control, luckily we have the resources to fight back. But our victories are due primarily to the fact that we operate in a society that values and protects free speech. But that is not the only reason Oprah should prevail in the Amarillo court battle.
By now, most people are probably familiar with the facts giving rise to the suit. Texas cattle ranchers are suing Oprah and former rancher, now animal rights advocate Howard Lyman, who appeared on Oprah�s show in April 1996. The ranchers are relying on a 1995 Texas law that imposes liability for false statements alleging that perishable agricultural products are unfit for human consumption. Lyman said on the show that there is the potential for contaminated animal protein to be fed to cattle in this country and that, like in Britain, this could spread a form of mad cow disease to humans. The ranchers hope to prove that Lyman knew or should have known that his assertions were false. But even if the ranchers prove he knowingly made false statements, under the Texas law they must still prove that losses were incurred as a result.
The Texas Law. Having successfully lobbied against passage of the statute in 1993 and having drafted an amendment which altered the law that finally passed in 1995, I can attest that the Texas law, although in all probability an unconstitutional infringement of free speech, does not support liability in the Oprah case.
The Texas law, like laws in 11 other states, is based on a model food disparagement statute. The essential elements of such legislation is that a person is liable for disseminating, in any manner to the public, information that states or implies that a perishable food product is unfit for human consumption. Also, the statement is libelous if it is not based on scientific inquiry, facts or data.
The model laws differ from traditional product disparagement statutes in several important respects. Traditional product disparagement law requires a plaintiff to prove that the defendant made a false statement about the plaintiff�s product, that the defendant intended to cause harm, and that it was the statement which actually caused harm.
In addition to the other departures from the common law of product disparagement, the law that did not pass in Texas would have shifted the burden of proof from the plaintiff to the defendant. This is done by changing the meaning of the word false meaning untrue to �not based on reasonable and reliable scientific inquiry, facts, or data�. Under the model law also known as veggie laws, the plaintiff must merely show there are scientific facts in dispute, then it becomes the defendants job to prove their science prevails. This turns 600 years of common law on its head.
Unconstitutionally Vague. While an honest application of the Texas law to the facts of this case must lead to a finding of no liability, there should be no need to go through such an exercise. The Texas law like similar laws in other states is unconstitutionally vague and an infringement on the first amendment right of free speech.
A law is unconstitutionally vague if a person cannot differentiate between conduct that should incur liability and conduct that should not incur liability. Vague laws are unjust because a person can not identify the behavior they must avoid to prevent being held liable. The laws are also unjust because they can be applied arbitrarily in a discriminatory fashion.
Under the Texas law, as well as the food disparagement laws in other states, a person could be held liable for disseminating the Old Testament of the Bible. The Old Testament states in clear and unambiguous terms that certain perishable food products are unfit for human consumption. These dietary laws are still followed by adherents to Judaism and Islam. The laws prohibit the consumption of, among other foods, meat from animals with cloven hooves and animals that do not chew cud (pork). Also prohibited is the consumption of sea animals that do not have scales (Texas farm-raised catfish).
Such statements in the Bible are not based on reasonable and reliable scientific inquiry, facts or data. Neither can these statements be proven to be true. Finally, there is absolutely no question that the Old Testament and those who preach from it intend to halt consumption of these foods regardless of the economic impact on the producers. This is but one reason why a law so vague could be used either intentionally or unintentionally to deter socially beneficial conduct.
The greatest danger of these laws lies in their intent to stifle debate about the safety of our food supply, a crucial public safety concern. The sponsor of the Texas law stated on several occasions that it was not his intent to create another lawsuit to enrich lawyers. His intent was to make people, the media in particular, think twice before saying something that could harm agriculture. It is for exactly this reason that the law is unconstitutional. The intent of the law was to prevent speech that is protected by the first amendment.
Consumers Union, publisher of Consumer Reports, is an independent, nonprofit testing and information organization serving only the consumer. We are a comprehensive source of unbiased advice about products and services, personal finance, health, nutrition, and other consumer concerns. Since 1936, our mission has been to test products, inform the public, and protect consumers.
In this chapter, "perishable food product" means a food product of agriculture or aquaculture that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time.
(3) the information states or implies that the perishable food product is not safe for consumption by the public.
(b) A person who is liable under Subsection (a) is liable to the producer of the perishable food product for damages and any other appropriate relief arising from the person's dissemination of the information.
In determining if information is false, the trier of fact shall consider whether the information was based on reasonable and reliable scientific inquiry, facts, or data.
(3) was grown without the use of any synthetic additive.