PETA sued by Australian Wool Industry: What about Free Speech?

PETA sued by Australian Wool Industry: What about Free Speech?

by Michelle Kaminsky, Esq., December 2009

Ingrid E. Newkirk, president of People for the Ethical Treatment of Animals (PETA), is being sued by the Australian Wool Innovation (AWI), angered by PETA's yearlong campaign to convince major clothing retailers to boycott Australian merino wool. To be sure, PETA's campaign has had an adverse effect on Australia's wool industry, with companies such as The Gap, Inc., Abercrombie & Fitch, American Eagle, and Timberland joining the boycott.

PETA objects to the wool industry's widespread practice called "mulesing" in which skin folds are cut away from lambs' hindquarters to prevent deadly infestation of fly maggots. PETA says mulesing is inhumane and causes needless suffering, whereas many in the wool industry counter that they need more time to come up with a better procedure.

In response, PETA and some wool producers including the Australian Wool Growers Association (AWGA) came up with a proposal to cut mulesing every year until abolishing the practice by 2010. However, AWI wouldn't agree so PETA's campaign and AWI's lawsuit will be heard by Australia's Federal Court.

But, what if an industry in the United States brought a suit against a public organization or figure for potentially disparaging remarks? Who would win?

In this situation, the comment would fall under the law of defamation. The law of defamation protects against a statement, whether spoken (slander) or written or printed (libel), that unfairly damages a person's reputation. Normally, someone alleging defamation must show that the defendant made a false damaging statement which the speaker knew or should have known wasn't true.

The law is slightly different for those in the public eye, however. According to First Amendment case law, a "limited public figure" is one that enjoys greater access to "channels of effective communication," such as the media, and "attention and comment" about a topic "in order to influence the resolution of the issues involved." Under these guidelines, most, if not all, industries could be considered "limited public figures."

For such "limited public figure" plaintiffs, the standard of proving defamation is that they must show that the statement was false and that the defendant acted with actual malice in making the statement; this heightened burden, which is incidentally, also difficult to prove, shows how much our Supreme Court wanted to protect the freedom of speech, particularly as it applies to speaking out about public figures.

So, the Australian wool industry's suit would probably fail on First Amendment grounds in the United States. But, and there is a big but, what if PETA had boycotted an agricultural industry instead? A lawsuit like this would follow a far different path. The question is: Why?

Because in 13 states, if allegedly defamatory comments concern an agricultural industry, there are a whole different set of rules. So-called "veggie libel laws" or "food disparagement statutes" make food critics liable for damages for speaking out against a perishable food product. So far, so good, as this principle falls in line with regular defamation regulations.

However, these laws pose potential constitutional concerns, as many shift the burden of proof onto the defendant to show that a damaging statement was true; this represents a major departure from long-standing First Amendment jurisprudence. Moreover, ten of the 13 states defining false information as that which is not "based upon reasonable and reliable scientific inquiry, facts, or data," which begs the question as to what exactly constitutes "reasonable and reliable scientific inquiry, facts, or data."

One such law received a lot of attention a few years back—remember the beef industry's lawsuit against Oprah Winfrey? Texas cattle ranchers based their claims on their state's "False Disparagement of Perishable Food Products" law and alleged that statements made on Winfrey's show by Howard Lyman of the Humane Society of the United States (HSUS) regarding mad cow disease hurt their industry. The court dismissed the claim.

The roots of food disparagement statutes come from a 1989 "60 Minutes" broadcast in which the Natural Resources Defense Council (NRDC) warned about the use of Alar, a carcinogenic plant growth regulator used on apples. Apple sales plummeted, and apple growers sued CBS under traditional common law principles of defamation.

The apple growers lost in federal district court because they failed to show that the accusations on the CBS program were false. The Ninth Circuit Court of Appeals affirmed, and our Supreme Court declined to hear the appeal.

Post-Alar, the American Feed Industry Association got together with a powerful Washington, D.C. law firm and drafted model food disparagement legislation—vowing to never see another Alar case again. Now 13 states have one of these laws (many verbatim from the model), and at least 17 others have considered such statutes. The effect of the laws could be far more reaching, however; an allegedly disparaging remark against an agricultural industry on a website can make a group liable in any of the states with food defamation laws.

Our highest Court will eventually be faced with the constitutionality of the veggie libel laws, and its decision could extend well beyond agriculture. The Court's approval of such laws could mean special First Amendment treatment for other industries, potentially blocking open debate regarding many aspects of consumer health and safety, such as pharmaceutical trials and transportation safety.

We can only hope that the Supreme Court will agree with Oprah Winfrey's statement upon her victory against beef: "Free speech not only lives, it rocks."