IN 1996, Texas cattle ranchers charged that talk show host Oprah Winfrey had disparaged their livestock when she expressed concern about the safety of eating hamburgers. Ms. Winfrey fought the suit -- and won. Case over. Well, not quite.
Ms. Winfrey is still fighting the cattle ranchers. Last week, a federal appellate court in New Orleans heard the cattlemen's appeal.
The lawsuit against Ms. Winfrey reveals how much the food libel laws of Texas and 12 other states can cost individuals who speak out on food and food-safety issues. Such laws stifle free speech and press and may result in costly and protracted litigation.
More importantly, such laws reach beyond state borders, affecting the entire country. Thus, Ms. Winfrey, who is based in Chicago, was subject to Texas law, where the cattlemen reside.
Basic to our constitutional system is the notion that states cannot interfere with the nation's business. That is, they cannot use their laws to impede interstate commerce. Yet that is what 13 states are doing with food libel laws.
Food disparagement laws grew out of the failure of Washington state apple growers to win damages for losses attributed to a CBS "60 Minutes" broadcast in 1989. That report said Alar, a chemical used to lengthen the time that apples ripen on trees, could cause cancer. The apple growers lost at the trial and on appeal, too.
After that, various agricultural groups began getting states legislatures to pass food disparagement laws. The 13 states with food disparagement laws are Alabama, Arizona, Colorado,Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas. Such laws have been introduced in Maryland's General Assembly but failed.
These laws are causing major problems for people involved in many types of media.
J. Robert Hatherill, a University of California at Santa Barbara professor, discovered the pitfalls of such laws. Before his book "Eat to Beat Cancer," was published last year, his publisher stripped lengthy passages from it, he noted. "I was not allowed," he said in a recent Los Angeles Times article, "to disclose dangers inherent in some common foods like . . . meat products.
"The problem had nothing to do with whether there was sufficient evidence to support the claims -- there is -- it came down to fear of litigation. I was told, "We could win the lawsuit, but it would cost us millions, and it is just not worth it."
In a recent issue of the Nation, actor Alec Baldwin said food disparagement laws have hampered his plans for a documentary: "I have been going to every major outlet -- the Discovery Channel, A&E;, the History Channel, every PBS outlet in the major markets . . . looking for financing to help me to produce a documentary, titled 'The History of Food,' about the political and economic determinants of what we eat in this country.
"And every single person I talk to who has an IQ over 100 is overwhelmingly intrigued by the idea of the show. But at all of these outlets, they're like, 'Oh, God! We can't do that, because of that Oprah Winfrey beef lawsuit.' "
In other words, national, local and cable stations are feeling the free speech chill of a Texas food libel law.
Such laws have a real impact on book publishers, broadcasters, magazines and newspaper publishers, and, in fact, on anyone who has a Web site. In this way, then, they very much interfere with the workings of those who conduct business by communicating nationally.
At the very least, we must have national legislation to protect the right of individuals and businesses to communicate interstate.
Thirteen states should not be allowed to dictate how the nation's commerce in communication is to be regulated. Equally important, they should not be permitted to do so when their laws violate the First Amendment.
The nation's freedom of speech can no longer be entrusted to the parochial interests of a few states.
Ronald K.L. Collins heads a First Amendment project at the Center For Science in the Public Interest, a nonprofit group based in Washington, D.C.
Pub Date: 6/10/99