In 1997, Oprah was sued for saying she would never eat another hamburger after a discussion about mad cow disease. You might wonder: wasn’t her right to say that protected under the first amendment right to free speech? Although it was, she was still able to be sued under what’s called “veggie libel laws.”
What are veggie libel laws?
Because these statutes primarily target animal rights activists, they have been termed “veggie libel laws.” They are also known more generally as food disparagement and food libel laws. They are designed to allow corporations to sue critics of their products in order to protect their profits, at the cost of the public interest.
A brief history of veggie libel laws
In the 1990s, thirteen states adopted food disparagement laws. This was sparked by a 60 Minutes program citing a study by the National Resources Defense Council (NRDC), which rightly stated that many of the apples grown in the US were sprayed with a potent carcinogen. As a result, Washington apple growers’ profits suffered a loss, although they later rebounded. They charged CBS and NRDC with product defamations. However, the apple growers were unable to prove that the claim was false and lost the case.
Burden of proof shifted to the defendant
As in the apple growers’ case, the burden of proof in defamation cases used to protect people who defame products with the intention of protecting the public. This was based on the 1964 case New York Times v. Sullivan, in which the Supreme Court ruled that the First Amendment protects defamation when it is related to public concern.
Yet this case made agricultural corporations realize that consumer advocates could harm their profits. Thus, they lobbied for a new type of disparagement law that would place the burden of proof on the defendants to prove that their claims were true, rather than on corporations to prove they were false.
These are the food disparagement laws some states have today. As a result, it is easier for people to be held liable for criticizing products. It is also easier for the corporation to drag the case out over multiple years and collect expensive punitive damages, attorney’s fees and economic damages. For example, in 2012, Beef Products, Inc. sued the ABC network for $1.9 billion for stating that its products were unhealthy and unsafe. They settled the case five years later with a confidential amount.
Which states have veggie libel laws?
Currently, thirteen states have some form of these disparagement laws, including Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.
What counts as “libel”?
To count as libel in a food disparagement case, a statement must: 1) always be proven to be a false, 2) typically must also be about the lack of safety of a food product, 3) be about “perishable” products, and 4) have been made with malice, or reckless disregard for whether or not it was true.
Part of SLAPP
Food libel cases like these are part of “strategic lawsuits against public participation” (SLAAP), which attempt to silence those who speak out and intimidate others from doing so. Animal agriculture corporations threaten these suits to silence their critics.
A “chilling effect”
Like every other defendant in these types of cases, Oprah won. However, the law under which this suit was brought remained on the books in Texas, as did similar laws in twelve other states, too. To date, no veggie libel claim has ever won a legal case.
Despite this, the laws still have their desired impact by exerting a “chilling effect.” Even groundless suits can take years and thousands of dollars to defend against. After seeing the costly litigation that Oprah, CBS and ABC faced, for example, journalists tend to avoid stories on food safety. Activists may not speak as publicly as they may have otherwise. For instance, the 2011 documentary Food, Inc. featured a mother whose child had died from food-borne illness but could not speak out for fear of being sued.
Legally baseless but still effective
Thus, veggie libel laws still achieve their aim by indirectly limiting free speech due to the risk of costly legal prosecution. These laws have not gone unnoticed by civil liberties activism groups, who have long fought against them.
As of April 2022, anti-SLAPP laws exist in thirty-two states. They are designed to help defendants quickly dismiss groundless lawsuits. However, protections are murky, as they vary greatly state to state. Additionally, it is unclear whether state anti-SLAPP laws apply in federal court and the Supreme Court has not yet made a decision on the subject.
So, are veggie libel laws an unconstitutional restraint on free speech? Some parts of the law suggest yes, while other parts of the law suggest it depends on whether the supposed disparagement could be proven true or false. No courts have ever declared a food libel law to be unconstitutional. Yet no corporations have ever successfully sued someone using them, either.
Even though activists technically have the right to speak out about food-product related issues, corporations could still sue for it under veggie libel laws. As a result, most people are dissuaded from doing so due to fear of civil damages and legal costs.
We do not truly have the right to free speech until we can speak out on all issues without fear of costly retaliation.
See also: ag-gag laws
