The more I read about Beef Products Inc.’s defamation lawsuit against ABC News over its “pink slime” reporting, the more I’m convinced the maker of lean finely textured beef should not have taken this public relations battle to court.

No one with any expertise in defamation law seems to think BPI can win the case filed last week. That’s because:

1. BPI would have to prove ABC’s reporting in March and April 2012 was false.

BPI is suing “in a South Dakota state court seeking at least $1.2 billion in damages under a state law that gives agricultural companies the ability to sue when their products are criticized.” But that South Dakota statute doesn’t supersede the First Amendment to the U.S. Constitution. A mountain of case law supports vigorous investigative reporting, and a case related to chemicals sprayed on apples established the precedent that “plaintiffs must prove statements made to disparage food products are false.” I highly recommend reading Dan Flynn’s whole article for the Food Safety News blog: “Alar Apples Case Precedence for BPI v. ABC.”

BPI’s lead attorney on this case, Dan Webb, conflates inaccuracies in ABC’s reporting with disparaging and pejorative statements:

“This disinformation campaign that extended over about a 30-day time period, among other things, consisted of over 200 false and misleading, defamatory and disparaging statements,” Webb said in a news conference today. Webb says the lawsuit takes issue with the term “pink slime” – which is how many of the news reports referred to the BPI product.

“A-B-C used that term ‘pink slime’ to refer to my client’s product over 130 times,” Webb said. “I will put experts on the witness stand that will tell this jury there is no worse pejorative or derogatory term that you could every use to refer to any food product.”

Webb said he will tell the jury that 30-years of hard work and production of a good product were decimated in the 30 days of ABC’s reports. “Our sales went down immediately 80-percent. Eighty-percent lost business because of what ABC did to this company,” Webb said.

The court will consider whether ABC’s reports were factual, not whether “pink slime” carries negative connotations. It’s not ABC’s fault if members of the public found lean finely textured beef unappetizing once they learned more about the manufacturing process.

BPI points to several factual errors:

Defendants stated that LFTB is “not what the typical layperson would consider meat,” they called it “filler,” they said it was added to “pump up” the volume of ground beef. BPI says these claims are “intentional and knowingly false” because LFTB is “100 % beef.”

BPI also alleges that the defendants misled consumers into believing that LFTB is not safe for consumption by referring to the product as being made from “low grade” “scraps” and “waste.”

Plaintiffs also say ABC was wrong to claim that connective tissue is in lean finely textured beef, which according to BPI is made from muscle.

Even advocates of lean finely textured beef admit that the product allows manufacturers to get more pounds of ground beef out of each animal by using materials that in past decades were wasted on the slaughterhouse floor. I believe ABC will be able to demonstrate that for the most part, its reporting on BPI’s manufacturing process was accurate.

Slapping ABC with $1.2 billion in damages over this series of reports would likely have a “chilling effect” on news coverage of food manufacturing in the U.S. That is clearly BPI’s intention, and probably also the point behind the South Dakota law on food disparagement, but it’s not likely to convince the court, because:

2. BPI also would have to prove ABC correspondents and producers knew the reporting was false and intended to harm the manufacturer of lean finely textured beef.

Drake University Law Professor Neil Hamilton, director of the Agricultural Law Center, summed it up well:

“The U.S. places great importance on free speech and the value of open public debate,” Hamilton said. “A jury may have a very difficult time finding the news stories involved here were defamatory, or that there was any intent to harm the company.” […]

BPI will have to produce “extreme” evidence that the network acted irresponsibly, such as proof that their research used obviously unreliable sources, said University of Wisconsin journalism professor Bob Drechsel, who teaches media law.

Defendants besides ABC News as a whole include anchor Diane Sawyer and reporters Jim Avila and David Kerley, former USDA Food Safety and Inspection Service employees Gerald Zirnstein and Carl Custer and a former BPI employee, who appeared on ABC. All of those people will testify that they were speaking out of concern for public health, not with an agenda to destroy the manufacturer of lean finely textured beef.

Reporters for corporate news organizations don’t dream up story ideas to harm private companies. ABC makes money through advertising. Its producers and journalists want to boost television ratings (and to a lesser extent web traffic) in order to increase advertising revenue. BPI can document losing 80 percent of its business, but they’ll never be able to prove that fallout was ABC’s intent.

The huge public interest in the series on “pink slime” demonstrates that ABC’s stories were newsworthy. Sensational, slanted reporting is hardly a recent development in television news, and not evidence of intent to defame BPI.

The Wall Street Journal’s Bill Tomson noted,

BPI is also suing ABC News for saying the company’s beef product isn’t actually beef, but rather a waste product from cattle carcasses. The suit also says ABC put pressure on supermarkets to stop carrying the product.

Supermarkets respond to what they perceive their customers want. ABC is not liable for decisions various supermarket chains made independently in order to preserve their own sales. It’s a stretch to claim ABC’s “blacklist” of stores that carry lean finely textured beef “interfered and damaged [BPI’s] business relationships with their customers.”

From Tomson’s piece:

There is no precedent of successful lawsuits based on the agriculture-libel statute, according to South Dakota University law professor Patrick Garry, who predicted BPI will have difficulty winning its case. The statute requires BPI prove that ABC News knew what it was reporting was false and intended to harm the company, he said.

Governor Terry Branstad, who went a little over the top in his vigorous defense of lean finely textured beef, supports BPI’s lawsuit.

“I know a lawsuit is an expensive proposition, but I hope it does make people think before they just repeat inaccurate smear language,” Branstad says. “There is a responsibility on the part of journalists to be fair and accurate in their presentation of information.” […]

Branstad says there “ought to be consequences” for broadcasting “inaccurate” information about lean, finely-textured beef.

“Now, what’s going to happen in the courts, but I hope it makes other people think about the language they use and that they need to be careful to be honest and accurate with their descriptions and not use charged words and smear language,” Branstad says.

I expect this case will make other food manufacturers think before they spend a bunch of money on legal fees to sue a news company. The defamation trial will generate a lot of publicity, like Oprah Winfrey’s successful defense against Texas cattlemen who accused her of slandering the beef industry in the 1990s. Reports may rehash the details of how lean finely textured beef is made. I don’t see that helping BPI’s cause. If a South Dakota jury does award damages to BPI, a higher court will likely overturn the ruling.

U.S. Secretary of Agriculture Tom Vilsack was politically correct in his comments to reporters, but you can tell the former trial lawyer knows the case is a loser.

“I’ve not had a chance to review anything about that lawsuit,” Vilsack says. “I certainly understand the frustration that the company had and, obviously, they made the decision (to sue) and I’m sure it’ll be vigorously defended and we’ll see what happens.” […]

“We will continue to maintain the safety of that product,” Vilsack said. “We’ll continue to maintain, as we have, that it’s got less fat content and it’s less expensive and we’ll continue to provide it as an option for school districts in their purchasing decisions, but we obviously can’t compel or mandate people to buy a certain product, nor will grocers mandate or compel people to buy a particular product.”

Some Iowa politicians didn’t think the U.S. Department of Agriculture did enough last spring “to correct the public record and educate consumers about the safety” of lean, finely textured beef.” Vilsack appeared at a joint press conference with Branstad to vouch for the product, though.

Any relevant thoughts are welcome in this thread.