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

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.

Also Read: ABC News Settles 'Pink Slime' Defamation Case

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.

Also Read: ABC News on Trial for 2012 'Pink Slime' Report: What's the Beef in $1.9 Billion Case?

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.

Also Read: ABC News Hit With $1.2B Lawsuit Over 'Pink Slime' Reports

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.

Also Read: Bill Cosby Juror Says 2 Holdouts Prevented Guilty Verdict

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.

'Pink Slime' and 5 More Legal Fights Over Food Insults (Photos)

Top TV talents including Oprah Winfrey have been hit with food libel lawsuits, otherwise known as "ag-gag" or "veggie libel" lawsuits. Most of these claims fail, but they are expensive to fight. Here's a look at some recent food lawsuits.
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Pink Slime

ABC News was sued in South Dakota and accused of violating an ag-gag law that bans purposely publishing false "disparagement" of any perishable "food product of agriculture" or "health practices with livestock."

ABC
ABC News was sued over its 2012 report saying that a processed beef byproduct called "lean finely textured beef" is really processed beef trimmings. ABC reported that the processed beef has been dubbed "pink slime" by a former government scientist.
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The trial pits Beef Products, Inc. against ABC News. Sawyer has been dismissed from the suit, and the case is currently in trial.
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Stopped Cold

Winfrey said on her show in 1996 that an expert's concerns about beef safety "just stopped me cold" from eating another burger.

Winfrey was sued in Texas by ranchers who accusing her of defamation and violating the Texas False Disparagement of Perishable Food Products Act.
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The ranchers claimed they suffered $12 million in lost business after Oprah's segment "Dangerous Food" examined the potential of mad cow disease to infect U. S. cattle.
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The jury and a Texas appeals court sided with Winfrey, ruling that Winfrey did not violate the ag-gag law because she did not purposely publish false facts about Texas cattle.
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But Winfrey spent an estimated $1 million in legal fees for the trial and defeating the ranchers' appeal.

After winning, Oprah declared, "Free speech not only lives, it rocks."
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McLibel

Perhaps the first food libel lawsuit was brought by McDonald's in 1994 against two vegetarian activists accused of defaming the fast-food chain in London. It was dubbed the McLibel case.
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The activists, David Morris and Helen Steel, were sued for handling out leaflets accusing McDonald's of paying low wages, selling cancer-causing food, and buying products from vendors engaging animal cruelty.
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The two activists could not prove the truth of all their claims, and were ordered to pay nearly $100,000 to McDonald's.

The pair refused to pay. McDonald's eventually dropped its case.
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The Guardian newspaper described the litigation "as the biggest corporate PR disaster in history." The case cost McDonald's $16 million in legal fees and related costs.
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Hot Coffee

A 79-year-old New Mexico woman sued McDonald's after she was hospitalized for eight days with severe burns caused by spilling hot coffee onto her lap.
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Stella Liebeck claimed that McDonald's was responsible for her injuries because it had received other claims from customers who suffered similar burns from the coffee, but did nothing about it.

McDonald's said it did nothing wrong.
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McDonald's coffee was heated to 180 degrees, while home-brewed coffee is typically 135-140 degrees.

Liebeck said she was burned on her thighs, buttocks, groin and genital area and needed skin grafts.
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A jury awarded Liebeck $2.9 million, but a judge and appeals court slashed her award to $640,000. The case settled out of court for an undisclosed amount.

McDonald's has reduced the temperature of its coffee to 150 degrees.
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Liebeck's case was spoofed in a Season 7 "Seinfeld" episode, "The Maestro." It is also the subject of a 2011 HBO documentary movie, "Hot Coffee."
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Chicken or Soy?

Earlier this year, Subway sued Canadian Broadcasting Company over its 2017 report that the world's largest fast-food chain put soy filler in its chicken sandwiches.
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Subway called CBC's report a "misrepresentation" and sued CBC, accusing the network of defamation.

Before filing the lawsuit, the chain said it would seek $210 million in damages. The case is pending.
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A is for Alar

CBS was sued over its 1998 "Sixty Minutes" report that Alar, a chemical sprayed on apples, increased the risk of cancer for consumers, particularly in children.
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Apple growers sued CBS, claiming the report cost them millions of dollar in lost apple sales. CBS stood behind its report.
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A federal judge dismissed the apple growers' case, saying CBS relied on a government report and that the apple growers failed to show the news report was false.
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After the lawsuit and public outcry, the manufacturer of Alar pulled the chemical from the U.S. market.
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Animal Filming

More food lawsuits are expected now that it is a felony in many states to covertly film inside animal and agriculture facilities and air the footage.
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But future prosecutions may be in question. In 2015, an Idaho judge struck down that state's criminal filming law, ruling that the ban violates the First Amendment protection for free speech.

Other states' illegal filming laws are being challenged in court.
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Criticizing food can land you in court, as Oprah Winfrey and others have discovered

Top TV talents including Oprah Winfrey have been hit with food libel lawsuits, otherwise known as "ag-gag" or "veggie libel" lawsuits. Most of these claims fail, but they are expensive to fight. Here's a look at some recent food lawsuits.

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