May 1 1998

Oprah’s Free–Are We?

In 13 states, no First Amendment for food critics

The National Cattlemen’s Beef Association (NCBA) must be breathing a sigh of relief. Their six weeks of courtroom combat with TV star Oprah Winfrey may have officially failed to silence her concerns about food safety, but in practice it came pretty damn close.

Despite Winfrey’s legal victory, the bottom-line lesson for the rest of us is grim: In 13 states, the First Amendment no longer applies on food-related subjects. Investigating, speaking or writing about issues from mad cow disease to pesticides to food additives can cost you years of legal hell and a lifetime of debt hiring lawyers and experts to fight against “food disparagement” laws in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.

Yes, Winfrey and her million-dollar defense won freedom for her and her co-defendant Howard Lyman, but the Texas law also survived. Furthermore, the lack of substantive news media attention to the real issues of this case proves that these laws do work to chill, warp and silence news reporting.

It was Lyman’s comments “disparaging” beef on Winfrey’s April 16, 1996 program that so enraged the beef industry. The National Cattlemen’s Beef Association first responded by pulling hundreds of thousands of advertising dollars from Winfrey’s program, while threatening legal action. Winfrey actually bent over backwards to appease the beef industry, bringing NCBA representative Gary Weber on a week later for 10 minutes of free airtime with no critics present.

That wasn’t good enough for a group of very wealthy Texas cattle-ranchers who filed suit in Amarillo in May of 1996, making Winfrey and Lyman the historic first defendants sued under a food disparagement statute. The Texas law never received the constitutionality test that First Amendment advocates hoped for, because Judge Mary Lou Robinson ruled the cattlemen failed to meet the law’s standards and the case went to the jury as a common law product disparagement suit.

Winfrey was ecstatic with the jury decision in her favor. “Free speech not only lives, it rocks!” she said, pumping the air with her fist outside the courtroom. Winfrey was passionate in her free speech remarks in ensuing interviews, but whether she will actually use her stardom to wage war against these laws is doubtful. Furthermore, Winfrey–along with the rest of the U.S. media–was strangely silent about mad cow disease itself and its attendant risks.


Hairdos and kazoos

Mad cow disease–known technically as “bovine spongiform encephalopathy,” or BSE–was the topic of the Oprah segment that prompted the cattlemen’s lawsuit, and it is a subject that the cattlemen simply do not want to see discussed at all. Their main worry going into the Oprah trial, in fact, was the possibility that the trial itself might spark such a discussion. “Our fear is that the trial revives the issue of BSE in the minds of the consumer again,” said NCBA president-elect Clark Winningham. “That hurts us because mad cow disease gets pushed out in the headlines again.”

As it turned out, his fear proved unfounded. Reporters turned out in droves to cover the Oprah trial, but their reports remained fixated on Winfrey’s outfit, her new hairdo, her lineup of guests during the show’s temporary relocation to Amarillo, and the fans outside the courtroom who chanted her name and serenaded her with kazoos.

The only substantive issue that entered the mix, in fact, was the question of whether the lawsuit posed a threat to the First Amendment. Editorialists generally agreed that Winfrey ought to be allowed to speak her mind (they could hardly argue otherwise), but simultaneously felt obliged to distance themselves from the specific health concerns that she and her guest had raised.

“There’s still an awful lot of whining, exaggerated reporting about the dangers of this or that additive,” said Geraldo Rivera (Rivera Live, 1/6/98), typifying the “critical but supportive” tone of the media in general. “The story’s always about the one person who gets sick, not the 20 billion people who are fine and well and thriving on–you know, on Double Whoppers with cheese.”

A sexist subtext crept repeatedly into discussions of the lawsuit. In Amarillo, bumper stickers and T-shirts called Winfrey “the only mad cow in Texas.” Accuracy In Media, Reed Irvine’s right-wing media watchdog organization (6-A/97), complained that Winfrey is a “mistress of manipulation” whose viewers “know nothing other than the canned story fed to them.” AIM worried over the fact that more than 70 percent of Oprah’s “vast afternoon audience…are women, who do the bulk of grocery shopping in America.”

Bill Maher, host of the ABC‘s Politically Incorrect talk show, offered similar thoughts about Winfrey’s hypnotic influence over the mindless female multitudes, speculating about whether her popularity proves that women are more “sheeplike” than men. Ironically, his comments came after the mainstream media’s lemming-like obsession with President Clinton and Monica Lewinsky had drastically reduced further news coverage of the Oprah trial.

Feeding Cows to Cows

The media’s obsession with celebrity was so complete that Winfrey’s co-defendant, vegetarian activist Lyman, might as well have been invisible. His statements about mad cow disease and the practice of “cow cannibalism” were quoted but never examined with any kind of interest in whether they might happen to be, well, actually true.

Lyman was in fact correct when he told Oprah’s audience that the practice of feeding ground-up cows back to cows was responsible for the epidemic of mad cow disease in England, and he was also correct in saying that the practice was continuing on a massive scale in the United States. Nine months after the show aired, in fact, the Food and Drug Administration admitted as much.

“The data and information raise concern that BSE could occur in cattle in the United States,” the FDA wrote in announcing its intention to ban the practice, “and that if BSE does appear in this country, the causative agent could be transmitted and amplified through the feeding of processed ruminant protein to cattle, and could result in an epidemic.”

If the networks and national wire services really cared to show some courage in discussing the safety of the U.S. food supply, they might therefore have devoted some space to examining the question of whether the FDA’s regulation was necessary (it was), as well as whether it is adequate (it isn’t).

Instead, virtually every report on the Oprah trial carried bland reassurances which misrepresented the nature of the FDA’s action. Reuters (2/12/98) stated that FDA had banned “the practice of feeding cattle protein to other cattle.” The New York Times (1/19/98) stated that it had “banned the use of ground animal parts in feed.”

Actually, the FDA’s final regulation was considerably less comprehensive than these statements suggested. Some cattle proteins, such as blood meal, are still being fed back to cattle. And same-species feeding practices are still legal with other livestock, including pigs, which have been proven susceptible to mad cow disease in laboratory experiments. Not only are pigs still eating the rendered remains of others pigs, they are being rendered into protein supplements fed to cattle, thanks to a taxonomic loophole in FDA’s regulations that arbitrarily excludes pigs from the category of “mammals.”

Human Victims

Equally absent was any media coverage of the human victims of Creutzfeldt-Jakob Disease (CJD), the human equivalent of mad cow disease. Surviving relatives of U.S. CJD victims have formed a support group, called CJD Voice, whose members believe that many cases go undiagnosed and misreported as Alzheimer’s or some other dementia. They want the disease made reportable to federal health authorities. They also want more funding for research and are seeking insurance industry reforms that will prevent discrimination against CJD victims and their families.

During the Oprah trial, members of CJD Voice tried in vain to bring these issues to the attention of reporters. “Now is the time to contact everyone you can regarding this,” urged Liz Armstrong, who moderates the organization’s internet discussion group. “Lack of knowledge in the general medical community, lack of funding for CJD research and lack of reporting of CJD lead the members of this group to the conclusion that this disease is much more prevalent than the authorities lead us to believe and that its incidence may well be increasing.”

The media are also failing to give much attention to other “food disparagement” cases now pending in state courts. In Ohio, for example, the Buckeye Egg Farm is suing the Ohio Public Interest Research Group for stating–correctly–that Buckeye has misled consumers by repackaging old eggs and backdating them as though they were new. Buckeye admits backdating the eggs, but claims that it is entitled to sue for damages because OPIRG has not proven a link between the old eggs and disease in humans.

The best news out of Amarillo is that the entire affair may have awakened some journalists, First Amendment defenders, food safety activists and others of the need to launch a national campaign to repeal food disparagement laws and stop their passage in other states. Ralph Nader, among others, is calling for a new national coalition for free speech on food issues. Stay tuned to see how much media attention that gets!

Sheldon Rampton and John Stauber are editors of PR Watch newsletter and co-authors of Mad Cow U.S.A.: Could the Nightmare Happen Here? (Common Courage Press, 1997). For more information, visit their website (