Pink Slime: The Latest Battle over the First Amendment

In yet another case trying the first amendment, ABC settled a $1.9 billion libel lawsuit from Beef Products Inc (BPI) in a state court in Elk Point, South Dakota on Wednesday. The suit stemmed from a 2012 story from ABC’s World News, in which the broadcast repeatedly used the term “pink slime” to refer to lean, finely textured beef (LFTB).

BPI claimed the story, which highlighted the production LFTB and its USDA approval process, defamed the company and their beef product, which was at one point found in 70% of all ground beef from around the country.  As a result of the story, BPI claimed they were forced to shutter three of their plants, and lay-off hundreds of employees, resulting in billions of dollars in damages.

The case had the potential to be one of the largest defamation suits in America’s history, due in large part to South Dakota’s Agricultural Food Products Disparagement Act, which allows claimed damages to be tripled. This meant that BPI’s 1.9 billion dollar claim could have resulted in a 5.7 billion dollar pay-out for ABC.

While the BPI case had been loitering in various courts for the past five years, the settlement earlier this week marks the third such high-profile libel case in recent years.

In 2016, a Florida jury found Gawker media guilty in a case stemming from the site’s decision to publish wrestler Hulk Hogan’s sex tape. In November, a Virginia jury found the Rolling Stone guilty in their explosive 2014 report “A Rape on Campus.”

These cases come at a time in which the media is increasingly working against the court of public opinion, in a climate where “fake news” is a buzzword, and under a president who has been making headlines over the past week due to his attacks on journalists and news organizations.

It’s this pernicious environment that has many first amendment lawyers concerned.

“Part of it is the current political climate,” said Alan Chen, a first amendment lawyer and professor of constitutional law at the University of Denver. “There’s this wholesale onslaught against the media as sort of an untrustworthy institution. Sometimes the plaintiffs are bringing these cases in places where the juries are likely to be sympathetic with the businesses.“

Indeed, ABC did attempt to persuade a judge that the case should not be heard in a South Dakota state court, largely because federal courts are viewed as more sympathetic to media organizations.

Chen argues that in a town like Elk Point, it would be difficult for ABC to get a fair shake.

“The plaintiff is big employer. ABC is an outsider and an East coast news entity. There’s going to be bias because ABC is being accused of defaming an important employer,” said Chen.

Further, Union County (the county in which Elk Point sits) went 67% for Trump – who has repeatedly targeted news organizations in recent months – and more intensely in recent days.

Though the terms of the settlement aren’t clear, the potential payout from the lawsuit was enough to prompt the Disney Corporation (ABC’s parent company) to include the lawsuit on their 10-Q report, according to the Hollywood Reporter. Such a move indicates that the company believed the suit was potentially damaging enough to have a “’material’ impact on their bottom line.”

It’s that sort of belief that has scholars like Chen concerned. If a libel lawsuit has the possibility to impact the bottom line of a multi-billion dollar corporation like Disney, the potential impacts on a smaller media organization could be catastrophic.

Still,  in most cases, the larger company does not carry an incentive to be very careful about what to report and how to report it. “Even with will resourced companies, it’s hard to imagine there wouldn’t be some hesitance to publish certain stories,” said Chen. “The downside of this is that I think they will start to censor themselves out of potential fears. Think about a much smaller entity. With much fewer resources they’re going to even be more hesitant.”

The first amendment battles are far from over for the media, however. On Tuesday, former Alaska governor Sarah Palin filed a defamation lawsuit against the New York Times for their recent op-ed. Battles for the press may very well migrate from the Twittersphere to courtrooms, affecting constitutional press rights and how business is done within these organizations.

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