Hamburgers and Free Speech

Copyright 1998 The Washington Post Company
January 5, 1998

A LIGHT-HEARTED study done for the holidays purports to show that consumption of fruitcakes, despite decades of relentlessly bad press, increased this year by 20 percent. It's a lesson that might usefully be pondered by the sponsors and champions of the set of wrong-headed and probably unconstitutional laws known as food-defamation laws, which will be tested for the first time in federal court Wednesday in Texas. The case in question was brought against talk-show host Oprah Winfrey by two groups of Texas ranchers in Amarillo under the Texas False Disparagement of Perishable Food Products Law, after a 1996 broadcast in which a vegetarian guest discussed the dangers of "mad cow disease" so vividly that Oprah declared she would stop eating hamburgers. The ranchers blame the comments for a sharp one-day fall in beef prices and subsequent losses in profit, though prices later recovered.

It may strike an observer that these comments sound well short of actionable and that lively discussions about the safety of the food supply are a good deal more useful to civic health than some of the bizarre fare to which Oprah-style talk shows are prone. But bringing the case to court could be an equally useful exercise if it focuses more attention and alarm on these odd "food disparagement" laws, now in force in 13 states and potentially covering comment on a wide variety of meats, vegetables and specialty products.

Even a modicum of such attention ought to be enough to overturn most of these laws on constitutional grounds. In an era of Olestra, worldwide food shipping, chemical breakthroughs such as irradiation and ever-changing orthodoxies on nutrition, the society-wide discussion of food issues is not just freewheeling but at times positively brawling. And this is as it should be. It's possible to sympathize with the initial impulse that led apple producers to seek ways to protect themselves after the Alar scare -- later determined to be unfounded -- or that leads beef producers such as the plaintiffs in the Oprah case to look for someone to blame after a societal bout of panic about mad cow disease. But that should not lead to acceptance of an attempt to muzzle speech on a matter of public interest.

The laws, say their defenders in the relevant industries, were written to be constitutional, merely targeting negative unproven comments about food -- a simple matter of redressing the burden of proof. But this can't be done. Those who oppose such curbs on good-faith speech point out that science, not to mention public policy, moves forward precisely by means of debate, charge and counter-charge over not-yet-proven dangers. The Oprah case is a good opportunity to set this straight.

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