Veggie Libel Meets Free Speech: A Constitutional Analysis of Agricultural Disparagement Laws
By Megan W. Semple
INTRODUCTION
In February 1989, the Natural Resources Defense Council (NRDC) issued a report in which the NRDC contended that young children faced increased dangers created by pesticide use. The publication of this report and the resulting publicity caused a firestorm of debate. In part, the NRDC report concerned the effects of the herbicide daminozide, also known as Alar. The CBS news program “60 Minutes” reported on the NRDC publication, highlighting NRDC's warnings about Alar, a chemical which was used by apple growers to stimulate growth and enhance apple appearance. American consumers responded to the program by boycotting apples and apple products.
Washington state apple growers subsequently filed suit against the NRDC, CBS, and CBS affiliates airing the broadcast in Washington. Alleging that the broadcast was inaccurate and disparaging, the apple growers sued to recoup the economic losses from the scare. The Ninth Circuit recently affirmed the decision of the Washington federal district court to grant the defendants' motions for summary judgment, dismissing the apple growers' suit. Both courts held that the plaintiffs failed to meet their burden of proving that the broadcast was verifiably false.
Since the eruption of the Alar controversy, agriculture and pesticide lobbyists have persuaded eleven state legislatures to enact statutes authorizing damages for “the disparagement of any perishable agricultural product.” Concerned that it would inhibit debate on health issues, Governor Roy Romer of Colorado vetoed one such bill after it passed in the state legislature.
Governor Romer's concern recall s the First Amendment's guarantee of free speech and the principles underlying the Supreme Court's seminal defamation decision, New York Times Co. v. Sullivan. Deciding that the First Amendment protected certain statements even if they were defamatory, the Supreme Court imposed additional burdens on defamation plaintiffs. Thus, although these agricultural statutes ostensibly create a right to bring a disparagement suit, the Supreme Court's defamation decisions cast significant doubt on their ability to withstand First Amendment challenges.
Defamation laws redress false statements that harm an individual's personal reputation or deter third parties from associating with the defamed individual. Similarly, the tort of injurious falsehood, which includes “product disparagement,” protects plaintiffs who prove they suffered as a result of a false, disparaging statement. Unlike defamation, which remedies injury to one's reputation, the tort of injurious falsehood compensates for harm to one's commercial or economic interests.
Under the New York Times ruling, defamation plaintiffs must meet the common law requirements; and some plaintiffs must additionally prove that the allegedly defamatory statements were made maliciously. Supreme Court decisions after New York Times have more fully defined the plaintiff's burden of proof in a defamation action. Although its application to product disparagement actions remains uncertain, the injurious falsehood doctrine, coupled with recently-enacted state laws, may chill potentially beneficial debate regarding health issues. Those concerned about the use of pesticides may censor themselves to avoid potential liability and thus limit the progress of the environmental movement. At present, however, no court has decided a case involving the constitutionality of veggie libel laws. This Note will evaluate whether these laws can survive a constitutional challenge.
Although the legal and financial difficulties experienced by growers in the wake of the Alar scare prompted the enactment of several veggie libel statutes, these statutes may fail to accomplish at least one of their goals--to relax the plaintiff's burden of proof. These statutes may soon face constitutional challenge because they defy established defamation law by shifting the burden of proving the falsity of the statement and fault of the defendant from the plaintiff to the defendant. Limiting free speech on important matters such as food safety and public health may also require a higher standard of fault than the negligence standard specified in the statutes. Moreover, because public debate on food safety is so important, the presumption of falsity in the statutes may render them unconstitutional.
Part I of this Note presents the Alar controversy and outlines the progression of the apple growers' lawsuit. It also introduces the veggie libel laws, describing the main facets of the statutes and the variations enacted by the states. Part II outlines the common law elements of a defamation action and a product disparagement claim, the distinction between the two torts, and the constitutional doctrine surrounding defamation actions. Part III addresses the constitutional shortcomings of veggie libel laws and concludes that the statutes, as enacted, unconstitutionally inhibit protected speech.
In February 1989, the Natural Resources Defense Council (NRDC) issued a report in which the NRDC contended that young children faced increased dangers created by pesticide use. The publication of this report and the resulting publicity caused a firestorm of debate. In part, the NRDC report concerned the effects of the herbicide daminozide, also known as Alar. The CBS news program “60 Minutes” reported on the NRDC publication, highlighting NRDC's warnings about Alar, a chemical which was used by apple growers to stimulate growth and enhance apple appearance. American consumers responded to the program by boycotting apples and apple products.
Washington state apple growers subsequently filed suit against the NRDC, CBS, and CBS affiliates airing the broadcast in Washington. Alleging that the broadcast was inaccurate and disparaging, the apple growers sued to recoup the economic losses from the scare. The Ninth Circuit recently affirmed the decision of the Washington federal district court to grant the defendants' motions for summary judgment, dismissing the apple growers' suit. Both courts held that the plaintiffs failed to meet their burden of proving that the broadcast was verifiably false.
Since the eruption of the Alar controversy, agriculture and pesticide lobbyists have persuaded eleven state legislatures to enact statutes authorizing damages for “the disparagement of any perishable agricultural product.” Concerned that it would inhibit debate on health issues, Governor Roy Romer of Colorado vetoed one such bill after it passed in the state legislature.
Governor Romer's concern recall s the First Amendment's guarantee of free speech and the principles underlying the Supreme Court's seminal defamation decision, New York Times Co. v. Sullivan. Deciding that the First Amendment protected certain statements even if they were defamatory, the Supreme Court imposed additional burdens on defamation plaintiffs. Thus, although these agricultural statutes ostensibly create a right to bring a disparagement suit, the Supreme Court's defamation decisions cast significant doubt on their ability to withstand First Amendment challenges.
Defamation laws redress false statements that harm an individual's personal reputation or deter third parties from associating with the defamed individual. Similarly, the tort of injurious falsehood, which includes “product disparagement,” protects plaintiffs who prove they suffered as a result of a false, disparaging statement. Unlike defamation, which remedies injury to one's reputation, the tort of injurious falsehood compensates for harm to one's commercial or economic interests.
Under the New York Times ruling, defamation plaintiffs must meet the common law requirements; and some plaintiffs must additionally prove that the allegedly defamatory statements were made maliciously. Supreme Court decisions after New York Times have more fully defined the plaintiff's burden of proof in a defamation action. Although its application to product disparagement actions remains uncertain, the injurious falsehood doctrine, coupled with recently-enacted state laws, may chill potentially beneficial debate regarding health issues. Those concerned about the use of pesticides may censor themselves to avoid potential liability and thus limit the progress of the environmental movement. At present, however, no court has decided a case involving the constitutionality of veggie libel laws. This Note will evaluate whether these laws can survive a constitutional challenge.
Although the legal and financial difficulties experienced by growers in the wake of the Alar scare prompted the enactment of several veggie libel statutes, these statutes may fail to accomplish at least one of their goals--to relax the plaintiff's burden of proof. These statutes may soon face constitutional challenge because they defy established defamation law by shifting the burden of proving the falsity of the statement and fault of the defendant from the plaintiff to the defendant. Limiting free speech on important matters such as food safety and public health may also require a higher standard of fault than the negligence standard specified in the statutes. Moreover, because public debate on food safety is so important, the presumption of falsity in the statutes may render them unconstitutional.
Part I of this Note presents the Alar controversy and outlines the progression of the apple growers' lawsuit. It also introduces the veggie libel laws, describing the main facets of the statutes and the variations enacted by the states. Part II outlines the common law elements of a defamation action and a product disparagement claim, the distinction between the two torts, and the constitutional doctrine surrounding defamation actions. Part III addresses the constitutional shortcomings of veggie libel laws and concludes that the statutes, as enacted, unconstitutionally inhibit protected speech.
