Years ago federal regulatory authorities concluded that “lean finely textured beef” a.k.a. “pink slime” was safe for human consumption. So they approved its use as a food additive or filler in ground beef and beef-based processed meats. By the start of 2012, said slime was an ingredient in 70 percent of all ground beef sold in supermarkets in the United States. Then in March 2012 ABC News aired reports questioning its potential health hazards. Predictable public outcry followed–and ubiquitous retail fast food behemoths Burger King, McDonald’s and Taco Bell (and many large supermarket chains such as Safeway) immediately stopped buying beef that contained the product. South Dakota meat processor BPI, one of the biggest producers of so-called “pink slime,” recently filed suit against ABC in a South Dakota court, claiming the reports were false and defamatory and badly damaged its reputation (and its profits). BPI seeks $400 million for its claimed lost profits, which could be tripled under South Dakota’s Agricultural Food Products Disparagement Act, in addition to unspecified punitive damages. Most people would undoubtedly agree with BPI’s claims that the news reports have caused a dramatic decrease in demand for their products, and therefore, have caused BPI substantial lost profits. Yet, most legal experts believe that BPI will have a very difficult time winning its case—even if it can be proven that LFTB does not pose the health risks suggested by these reports. Why? And is this a good thing?
The First Amendment prohibits the federal and state governments from passing laws “abridging the freedom of speech, or of the press.” Freedom of speech and press rights have always been dear to Americans, and the Supreme Court has long noted the vital connection between free debate and a free society. Legendary Justice Louis Brandeis once observed that “Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination.” In order to give First Amendment rights real meaning, the Supreme Court has required that defamation and similar laws impose a very high burden of proof when the subject is a matter of public interest or involves a public figure. In order for a “public figure” such as BPI to recover, it must prove that ABC knew or had good reason to know that the information was false (“knowing or reckless disregard for the truth”), and that it nonetheless published it with intent (“actual malice”) to harm BPI’s business. This high burden encourages free expression and debate, in the press and in our everyday discourse, for, as Justice Brennan observed in the landmark 1964 case, New York Times v. Sullivan, “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.” It may be tough to swallow the “We didn’t mean to mislead people about you” defense, especially when bad facts cost you a bundle. But—as both The Constitution and ABC News assert—some things might be even worse to swallow. // Michael Racette