There must have been some people swallowing hard recently at ABC News headquarters in New York and at parent company Disney’s base in California.
News broke this week that a South Dakota state judge has ruled that the network must face a jury whose small town was clobbered by allegedly biased news reporting. Judge Cheryle Gering dismissed defamation charges against anchor Diane Sawyer, but reporter Jim Avila and the network itself both remain as defendants in the case. Several other defendants have already been dismissed, including the former Department of Agriculture microbiologist who coined the now infamous term “pink slime.”
I do not think the plaintiff, Beef Products Inc., has much chance of winning. I think the company has even less chance of a verdict awarding monetary damages, up to a potential maximum penalty of $5.7 billion, standing up on appeal. But the news outlet is still likely to suffer a blow when the public gets a closer look at the slimy reporting that went into its coverage of Beef Products.
ABC did not invent the term “pink slime.” Aforementioned microbiologist Gerald Zirnstein used the term in a 2002 email to describe the product Beef Products calls “lean, finely textured beef,” or LFTB. The term “pink slime” was already widely used following a New York Times report from 2009 discussing the effectiveness of the ammonia gas treatment that was meant to kill pathogens in LFTB. But “pink slime” became a national buzzword through ABC’s reporting.
Avila spoke with Zirnstein and another former USDA microbiologist, Carl Custer, both of whom expressed the opinion that failing to label products that include LFTB accordingly is deceptive. Avila also toured a Beef Products plant, noting that no questions were allowed on the tour, though Beef Products executives did take questions at a subsequent news conference. Watching the clips, it seems clear that Avila’s stance is firmly on the side of the critics of “pink slime,” for all his gestures toward objectivity. In an appearance on Anderson Cooper’s talk show in 2012, Avila emphasized that ammonia gas lingered in LFTB after it was treated and praised the work of consumer groups pressuring supermarkets to label products containing the product.
Under defamation laws in several states, including South Dakota, food makers like Beef Products can file a civil suit for disparaging and false statements made about food products; “agricultural disparagement statutes” serve a similar purpose. Both recognize that perishable goods like vegetables or meat are uniquely vulnerable to reports like ABC’s because, unlike cars, for instance, the product may well become unsellable before the company can revive its reputation.
To win its case under South Dakota’s law, Beef Products will ultimately need to show that ABC’s reporting was both false and defamatory. It is not a big leap to find that merely reporting the pejorative term “pink slime” defames a consumer-oriented product. After all, what mother wants to feed her children slime of any color?
But the case will likely fail on the absence of demonstrable falsehood. In watching clips of ABC’s coverage of the issue, I see plenty of bias and selective reporting – but little, if anything, whose factual basis is truly questionable. Avila was even careful to note repeatedly that Zirnstein coined the term “pink slime” and that the term is used principally by LFTB’s critics, as if to say, “It’s not us calling the product pink slime – we’re just passing it along.”
Zirnstein later clarified that the infamous “pink slime” email was part of a private exchange with a colleague; The New York Times obtained it along with other documents as part of a Freedom of Information Act request. He did, however, stand by the characterization once it became public, calling himself an “involuntary whistleblower” but evidently willing to repeat his criticisms to ABC and other outlets when asked. (While he and Custer were initially defendants in Beef Products’ lawsuit, the company agreed to dismiss them with prejudice last year.)
ABC did not mention in its reporting that the method for treating the beef with ammonia gas was originally developed in response to repeated outbreaks of E. coli and other food-borne pathogens. Although the effectiveness of Beef Products’ method has been questioned in The New York Times report and elsewhere, the USDA believed the process to be beneficial in reducing the risk of an outbreak. McDonald’s and many other hamburger vendors initially accepted the USDA’s decision, until public outcry (driven largely by ABC) made them change course.
Also absent in ABC’s reports was the fact that, because the product is essentially concentrated beef protein, LFTB can reduce the percentage of fat in hamburger meat when blended with ordinary ground beef. Providing that information would have permitted the audience to recognize that, whatever drawbacks the product might have (none of them demonstrated), it also offers benefits they would want to consider. The same mother who would never feed her children slime is presumably interested in making sure that the meat she gives them is as healthful and sanitary as possible.
But providing this counterpoint would have undercut ABC News’ story that LFTB was developed solely to rip off customers and to line the pockets of a greedy corporation. Trite as that storyline is, it is the one ABC apparently decided would be best for its ratings. With so little thought given to the informational needs of its viewers, ABC clearly never contemplated the harm it would do, not just to Beef Products but also to the ordinary men and women who earned their livelihood at the company’s four plants – three of which closed after ABC’s reports gained wide circulation.
Now the neighbors of some of those men and women will find themselves in a position to judge the accuracy and fairness of ABC’s reporting. The trial is scheduled for June in Union County, South Dakota.
But the First Amendment does not tolerate damages for reporting that is merely unfair. In the end, it is most likely that ABC’s reporting will be deemed protected free speech, on appeal if not in the initial verdict. Ultimately the First Amendment applies to all journalism, however slimy it may be.
Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book,
The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book
Looking Ahead: Life, Family, Wealth and Business After 55.
Posted by Larry M. Elkin, CPA, CFP®
There must have been some people swallowing hard recently at ABC News headquarters in New York and at parent company Disney’s base in California.
News broke this week that a South Dakota state judge has ruled that the network must face a jury whose small town was clobbered by allegedly biased news reporting. Judge Cheryle Gering dismissed defamation charges against anchor Diane Sawyer, but reporter Jim Avila and the network itself both remain as defendants in the case. Several other defendants have already been dismissed, including the former Department of Agriculture microbiologist who coined the now infamous term “pink slime.”
I do not think the plaintiff, Beef Products Inc., has much chance of winning. I think the company has even less chance of a verdict awarding monetary damages, up to a potential maximum penalty of $5.7 billion, standing up on appeal. But the news outlet is still likely to suffer a blow when the public gets a closer look at the slimy reporting that went into its coverage of Beef Products.
ABC did not invent the term “pink slime.” Aforementioned microbiologist Gerald Zirnstein used the term in a 2002 email to describe the product Beef Products calls “lean, finely textured beef,” or LFTB. The term “pink slime” was already widely used following a New York Times report from 2009 discussing the effectiveness of the ammonia gas treatment that was meant to kill pathogens in LFTB. But “pink slime” became a national buzzword through ABC’s reporting.
Avila spoke with Zirnstein and another former USDA microbiologist, Carl Custer, both of whom expressed the opinion that failing to label products that include LFTB accordingly is deceptive. Avila also toured a Beef Products plant, noting that no questions were allowed on the tour, though Beef Products executives did take questions at a subsequent news conference. Watching the clips, it seems clear that Avila’s stance is firmly on the side of the critics of “pink slime,” for all his gestures toward objectivity. In an appearance on Anderson Cooper’s talk show in 2012, Avila emphasized that ammonia gas lingered in LFTB after it was treated and praised the work of consumer groups pressuring supermarkets to label products containing the product.
Under defamation laws in several states, including South Dakota, food makers like Beef Products can file a civil suit for disparaging and false statements made about food products; “agricultural disparagement statutes” serve a similar purpose. Both recognize that perishable goods like vegetables or meat are uniquely vulnerable to reports like ABC’s because, unlike cars, for instance, the product may well become unsellable before the company can revive its reputation.
To win its case under South Dakota’s law, Beef Products will ultimately need to show that ABC’s reporting was both false and defamatory. It is not a big leap to find that merely reporting the pejorative term “pink slime” defames a consumer-oriented product. After all, what mother wants to feed her children slime of any color?
But the case will likely fail on the absence of demonstrable falsehood. In watching clips of ABC’s coverage of the issue, I see plenty of bias and selective reporting – but little, if anything, whose factual basis is truly questionable. Avila was even careful to note repeatedly that Zirnstein coined the term “pink slime” and that the term is used principally by LFTB’s critics, as if to say, “It’s not us calling the product pink slime – we’re just passing it along.”
Zirnstein later clarified that the infamous “pink slime” email was part of a private exchange with a colleague; The New York Times obtained it along with other documents as part of a Freedom of Information Act request. He did, however, stand by the characterization once it became public, calling himself an “involuntary whistleblower” but evidently willing to repeat his criticisms to ABC and other outlets when asked. (While he and Custer were initially defendants in Beef Products’ lawsuit, the company agreed to dismiss them with prejudice last year.)
ABC did not mention in its reporting that the method for treating the beef with ammonia gas was originally developed in response to repeated outbreaks of E. coli and other food-borne pathogens. Although the effectiveness of Beef Products’ method has been questioned in The New York Times report and elsewhere, the USDA believed the process to be beneficial in reducing the risk of an outbreak. McDonald’s and many other hamburger vendors initially accepted the USDA’s decision, until public outcry (driven largely by ABC) made them change course.
Also absent in ABC’s reports was the fact that, because the product is essentially concentrated beef protein, LFTB can reduce the percentage of fat in hamburger meat when blended with ordinary ground beef. Providing that information would have permitted the audience to recognize that, whatever drawbacks the product might have (none of them demonstrated), it also offers benefits they would want to consider. The same mother who would never feed her children slime is presumably interested in making sure that the meat she gives them is as healthful and sanitary as possible.
But providing this counterpoint would have undercut ABC News’ story that LFTB was developed solely to rip off customers and to line the pockets of a greedy corporation. Trite as that storyline is, it is the one ABC apparently decided would be best for its ratings. With so little thought given to the informational needs of its viewers, ABC clearly never contemplated the harm it would do, not just to Beef Products but also to the ordinary men and women who earned their livelihood at the company’s four plants – three of which closed after ABC’s reports gained wide circulation.
Now the neighbors of some of those men and women will find themselves in a position to judge the accuracy and fairness of ABC’s reporting. The trial is scheduled for June in Union County, South Dakota.
But the First Amendment does not tolerate damages for reporting that is merely unfair. In the end, it is most likely that ABC’s reporting will be deemed protected free speech, on appeal if not in the initial verdict. Ultimately the First Amendment applies to all journalism, however slimy it may be.
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