Why ABC’s ‘Pink Slime’ Settlement Is a Red Flag for Free Press

Settling a libel case mid-trial invites not only more lawsuits but also more “fake news” media bashing, experts warn

abc news pink slime

ABC News’s decision to settle a food libel lawsuit over its “pink slime” report sends a dangerous signal that a powerful mainstream news organization is unwilling fight to vindicate its reporting.

And that sends a signal of vulnerability that may invite frivolous libel lawsuits and crippling legal expenses, experts warn.

“Does the settlement send a message to potential litigants, who perhaps have only spurious claims, to move forward with filing suits?” said University of Minnesota journalism professor Jane Kirtley. “Probably.”

“I always regret when a news organization, especially one who could mount a credible defense and has solid financial resources, elects to settle,” Kirtley told TheWrap.

ABC News announced Wednesday that it had reached a confidential settlement of a food libel lawsuit stemming from its 2012 broadcast, “Pink Slime and You.” The report discussed how bits of beef are removed from fat trimmings in a centrifuge, sprayed with ammonia gas, and added to ground beef and hamburger meat, which a whistleblower called “pink slime.”

Beef Products, Inc, which calls its product “lean finely textured beef,” sued ABC News in South Dakota for allegedly violating that states’s so-called ag-gag law by implying the processed beef is unsafe to eat.

The law, Liability for Disparagement of Agricultural Food Products, bans intentional publication of false “disparagement” of any perishable “food product of agriculture” or “health practices with livestock.”

The potential financial hit to ABC News — possibly as much as $5.7 billion in damages — was large enough that its parent company, Disney, mentioned the lawsuit in its quarterly reports to the Securities and Exchange Commission.

Lawyers for ABC News argued during the South Dakota trial that the term “pink slime” is a hyperbolic opinion about the beef product that is protected by the First Amendment, Kirtley said.

Los Angeles media lawyer Ted Boutrous of Gibson Dunn & Crutcher said it was difficult to declare winners and losers without knowing the terms of the settlement, but anti-press attacks will continue nonetheless.

“It may well be a great settlement for ABC, but we just don’t know and these days attackers of the press feel free to ignore the facts and will seize on and twist almost anything to undermine the legitimacy of the media,” Boutrous told TheWrap.

“I am concerned about the outburst of recently filed defamation suits, and I think news organizations need to fight back hard and explain what they do and why they are doing it,” Boutrous said.

Kirtley said she thought the “pink slime” case against ABC News “was a ‘chilling’ one from the beginning.”

The settlement “does play into the hands of those who want to undermine public confidence in the mainstream media,” especially by those who use the term “fake news” as “a rallying cry for forces on all parts of the political spectrum,” Kirtley said.

There are indications that ABC News settled on somewhat favorable terms.

As of Wednesday, ABC News did not issue any retraction, correction, or apology, or remove its 2012 broadcast, “Pink Slime and You,” from the ABC News website, which libel plaintiffs typically demand as part of a settlement.

By settling, BPI gave up its chance to ask the jury to award $1.9 billion in damages, which would have been tripled to $5.7 billion under the treble damages provision of the ag-gag law.

ABC News may have wanted to avoid rolling the dice with a jury after the website Gawker was hit last year with a $140 million jury award in a sex tapes / privacy case brought by Terry Bollea, aka wrestler Hulk Hogan.

Oprah Winfrey went to trial in 1998 and beat an ag-gag lawsuit brought against her by Texas local cattle ranchers over her television segment, “Dangerous Food,” that examined the potential of mad cow disease infecting U. S. cattle.