Court rules BPI lawsuit against ABC News may continue

Illustration by Tim O'Brien for Mother Jones

Court rules BPI lawsuit against ABC News may continue
nicoleweddington
Daily Kos member
Mar 31, 2014

A defamation lawsuit filed by Beef Products, Inc., in 2012 against ABC News, will be heard in the state court of South Dakota, a circuit court judge ruled March 27. Defamed meat product and lost profits are at the lawsuit’s core.

Defamed meat product and lost profits are at the lawsuit’s core. The circuit court judge retained a majority of the counts against the defendants in her decision, which stemmed from a hearing Dec. 17.

The lawsuit’s claims are allowed under the state’s disparagement laws regarding food. The statements ABC News made in regards to BPI’s meat product were in fact disparaging, the judge said, however, the court does not recognize if the statements are true or false.

News anchors report BPI meat product is pink slime

Back in 2012, ABC News reported on BPI’s Lean Finely Textured Beef, deeming it “pink slime,” because, as ABC states, the meat product was pink and slimy. Not only was the term pink slime itself inappropriate, but the frequency in which it was used totaled 137 times while ABC also made over 100 false statements during the smear campaign, BPI asserts. The news outlet also paired its negative reports with positive statements about the meat product’s validity regarding approval from the FDA, but followed up by discounting the FDA.

The campaign made headway with consumers, who accounted for an 80-percent loss in sales. That equates to $400 million in profit. Three out of four plants closed and over 700 jobs were lost. Beef Products, Inc., is a private family business.

Reporters named in lawsuit

Other defendants in the case are two U.S. Department of Agriculture employees, two reporters who have a history with the story and a former employee of BPI who granted interviews. Diane Sawyer, anchor for ABC World News, is another defendant. All have a deadline of April 16 to file an answer on the current counts against them. Attorneys for ABC News, say the ruling may affect the First Amendment in an uncomfortable way.

The injury lawyer argued to dismiss the claims against ABC, but the judge was guided to the decision based on a reasonable fact-finding method and concluded the plaintiffs’ claims of defamation were satisfactorily alleged based on the defendants’ public statements.

Gagged by Big Ag
Horrific abuse. Rampant contamination. And the crime is…exposing it?
By Ted Genoways
Mother Jones
July/August 2013

Shawn Lyons was dead to rights—and he knew it. More than a month had passed since People for the Ethical Treatment of Animals had released a video of savage mistreatment at the MowMar Farms hog confinement facility where he worked as an entry-level herdsman in the breeding room. The three enormous sow barns in rural Greene County, Iowa, were less than five years old and, until recently, had raised few concerns. They seemed well ventilated and well supplied with water from giant holding tanks. Their tightly tacked steel siding always gleamed white in the sun. But the PETA hidden-camera footage shot by two undercover activists over a period of months in the summer of 2008, following up on a tip from a former employee, showed a harsh reality concealed inside.

The recordings caught one senior worker beating a sow repeatedly on the back with a metal gate rod, a supervisor turning an electric prod on a sow too crippled to stand, another worker shoving a herding cane into a sow's vagina. In one close-up, a distressed sow who'd been attacking her piglets was shown with her face royal blue from the Prima Tech marking dye sprayed into her nostrils "to get the animal high." In perhaps the most disturbing sequence, a worker demonstrated the method for eutha­nizing underweight piglets: taking them by the hind legs and smashing their skulls against the concrete floor—a technique known as "thumping." Their bloodied bodies were then tossed into a giant bin, where video showed them twitching and paddling until they died, sometimes long after. Though his actions were not nearly as vicious as those of some coworkers who'd been fired immediately, Lyons knew, as the video quickly became national news, that the consequences for him could be severe.

As we sat recently in the tiny, tumbledown house he grew up in and now shares with his wife and two kids, Lyons acknowledged—as he did to the sheriff's deputy back then—that he had prodded sows with clothespins, hit them with broad, wooden herding boards, and pulled them by their ears, but only in an effort, he said, to get pregnant sows that had spent the last 114 days immobilized in gestation crates up and moving to the farrowing crates where they would give birth. Lyons said he never intended to hurt the hogs, that he was just "scared to death" of the angry sows "who had spent their lives in a little pen"—and this was how he had been trained to deal with them. Lyons had watery blue eyes that seemed always on the verge of tears and spoke in a skittish mutter that would sometimes disappear all the way into silence as he rubbed his thin beard. "You do feel sorry for them, because they don't have much room to move around," he said, but if they get spooked coming out of their crates, "you're in for a fight."

Lyons had been trained in these methods of hog-handling (many of them, including thumping, legal and widely practiced), but a spokeswoman for Hormel—one of the largest food processors in the country and the dominant buyer of MowMar's hogs—had already called the video "appalling" and "completely unacceptable," and MowMar's owners had responded by vowing that any additional workers found guilty of abuse as authorities pored over the tape would be terminated. Still, it came as a surprise when his boss informed him that he had been formally charged and immediately fired. "We don't want to do it," the supervisor told him, "but we got to—because Hor­mel will quit taking the sows." He told Lyons to turn himself in at the courthouse.

While Lyons filled out paperwork and had his mug shot taken, his wife's cellphone buzzed again and again: Her husband's name was already on the evening news. Lyons hired a lawyer—but he was on video and he'd confessed to the deputy sheriff. "They got you, dude," Lyons said his attorney told him. He accepted a plea agreement—six months' probation and a $625 fine plus court fees—and signed an admission of guilt. It may seem like a slap on the wrist, but Lyons was the first person ever convicted of criminal livestock neglect on a Midwestern farm—and only the seventh person convicted of animal abuse in the history of the American meat industry. He wasn't alone for long: Five of Lyons' coworkers soon signed similar agreements.

It was a major PR win for PETA—which often appeals to local authorities to make arrests but rarely gets the kind of cooperation they got from the Greene County Sheriff's Office—but it was also a hollow victory. "Who in their right mind would want to work in a dusty, ammonia-ridden pig shed for nine bucks an hour but somebody who, literally, had no other options?" asked Dan Paden, the senior researcher at PETA who helped run the investigation. "And at the end of a long, frustrating day, when you are trying to move a pig who hasn't been out of its crate in [months], that's when these beatings occur—and people do stupid, cruel, illegal things." PETA was urging prosecutors to go beyond plea agreements for farmworkers; they wanted charges against farm owners and their corporate backers, to hold them responsible for crimes committed by undertrained, overburdened employees.

Don't Squeal
Which states have ag gag provisions? This prospect scared industrial-scale meat producers into organizing a coordinated pushback. Recognizing that, in the era of smartphones and social media, any worker could easily shoot and distribute damning video, meat producers began pressing for legislation that would outlaw this kind of whistleblowing. Publicly, MowMar pledged to institute a zero-tolerance policy against abuse and even to look into installing video monitoring in its barns. And yet last summer, at the World Pork Expo in Des Moines, MowMar's co-owner Lynn Becker recommended that each farm hire a spokesperson to "get your side of the story out" and called the release of PETA's video "the 9/11 event of animal care in our industry."

As overheated as likening that incident to a terrorist attack may seem, such thinking has become woven into the massive lobbying effort that agribusiness has launched to enact a series of measures known (in a term coined by the New York Times' Mark Bittman) as ag gag. Though different in scope and details, the laws (enacted in 8 states and introduced in 15 more) are viewed by many as undercutting—and even criminalizing—the exercise of First Amendment rights by investigative reporters and activists, whom the industry accuses of "animal and ecological terrorism." Ag gag laws allow industry "to completely self-regulate," says a whistleblowers' advocate. That should "scare the pants off" consumers who want to know how their food is made.

Using a legal cudgel to go after critics wasn't entirely a new tactic for agribusiness. PETA first began undercover investigations around 1981—getting video of rhesus monkeys being vivisected in a Maryland medical research lab by posing as employees—and a few legislatures responded by enacting laws to protect animal research from exposés. (Only Kansas had the foresight to expand its law to cover "livestock and domestic animals.") Then, in 1992, when two ABC PrimeTime Live reporters shot undercover video of Food Lion workers in the Carolinas repackaging spoiled meat, Food Lion sued—not for libel, since the tapes spoke for themselves, but for fraud and trespass, because the reporters had submitted false information on their job applications. (A jury awarded $5.5 million, but an appeals court reduced it to just $2.) In 1996, at the height of the mad cow scare, the Texas Beef Group launched a two-year lawsuit against Oprah Winfrey over an episode that questioned the safety of hamburger. Recently, not only has the rhetoric heated up, but so has the coordinated legislative effort. Deeply invested in industrywide methods that a growing number of consumers find distasteful or even cruel, agribusiness has united in making sure that prying eyes literally don't see how the sausage is made.

"If you think this is an animal welfare issue, you have missed the mark," said Amanda Hitt, director of the Government Accountability Project's Food Integrity Campaign, who served as a representative for the whistleblowers who tipped off ABC in the Food Lion case. "This is a bigger, broader issue." She likened activist videos to airplane black-box recorders—evidence for investigators to deconstruct and find wrongdoing. Ag gag laws, she said, don't just interfere with workers blowing the whistle on animal abuse. "You are also stopping environmental whistleblowing; you are also stopping workers' rights whistleblowing." In short, "you have given power to the industry to completely self-regulate." That should "scare the pants off" consumers concerned about where their food comes from. "It's the consumer's right to know, but also the employee's right to tell. You gotta have both."

Until the 20th century, American meat production, especially in the Midwest, was necessarily seasonal. Cattle, hogs, and chickens were part of small, diversified farms that sustained livestock all year long but tended to fatten animals and bring them to market only after harvest, when feed was plentiful and cheap. After profits ballooned during World War II, packers were eager to keep upping output (and sales) by turning packing into a year-round activity.

But hog farming on the cold, windswept plains of the Midwest was difficult in those days. Even in milder winters, farmers often suffered deaths among their herds, and sows would farrow only once a year. Midwestern stockmen tended to raise either cattle, which were hardy enough to withstand the cold, or chickens, which could be cooped during winter months. But then some enterprising hog farmers began building large confinement barns with slotted floors and pits below to catch manure. Such enclosures not only overcame mortality due to bad weather, but they made it possible to farrow sows twice a year.

By the close of the 1960s, the practice was so successful that Midwestern family farmers worried that meatpackers would build their own confinement facilities, establishing feed-to-market monopolies that would squeeze out small operations. Between 1971 and 1982, laws devised to forbid vertical integration and price-fixing passed in every state between Wisconsin and Oklahoma. Thus, when big meat producers began erecting barns capable of holding thousands of animals, the boom centered in the unregulated South.

But as the 1990s drew to a close, the industry suffered a devastating one-two punch. First, in July 1999, a North Carolina grand jury handed down the first animal cruelty indictments of farmworkers in American history after a three-month PETA investigation at Belcross Farm documented "daily violent beatings and bludgeonings of pregnant sows with a wrench and iron pole." Then, in September, floodwaters from Hurricane Floyd ruptured and overtopped manure lagoons all across the state. As the New York Times reported, "Feces and urine soaked the terrain and flowed into rivers." The ensuing backlash pushed producers to reconsider the Midwest, already depopulated by farm consolidation, as a place they could build large facilities with little governmental oversight or public outcry.

Through a series of lawsuits, big meatpackers successfully rolled back the family-farm protection laws, and soon industrial producers were rushing to buy up smaller Midwestern meatpacking plants and finance large-scale confinement facilities and feedlots. Beef packers moved into cattle-rich Nebraska, but hog development tended to focus on Iowa, where three of the biggest packers—Smithfield, Cargill, and Hormel—had gained special exemptions to the family-farm protection law by agreeing to two conditions: They would not engage in price-fixing of feed or livestock, and they would not seek to punish whistleblowers.

This compromise led to a mind-boggling boom in Iowa factory farms. For example, Greene County—which had few large-scale facilities when MowMar Farms applied for its permit a decade ago—now has 70, with at least another 14 permitted for construction. In a county of roughly 9,000 people, the hog population is more than 250,000.

As in any boom, the quick money and minimal restrictions attracted a number of fly-by-night developers. They sold to long-distance owners who, via a few local management companies, often hired inexperienced workers. And before long, Iowa resembled North Carolina of a decade before: a state dotted with giant hog confinements, many operating in violation of health codes, environmental requirements, and animal cruelty laws.

The release of the MowMar Farms video could have been a gut-check for the industry, a moment to reflect on whether the runaway growth had led to conditions unsafe for man or beast, perhaps even an opening for dialogue with animal welfare advocates. Instead, Julie H. Craven, the spokeswoman for Hormel, went on the offensive against PETA, criticizing its practice of methodically building cases over a period of months in order to demonstrate patterns of abuse. "If they are truly concerned about animal welfare," she said, "they should release information when they obtain it."

It marked a transition in the industry's strategy: Where once it had pushed back against journalists and whistleblowers after their videos ignited public outrage, now they were looking for a way to prevent such exposure in the first place. Soon afterward, meat industry lobbyists dusted off a long-dormant piece of model legislation crafted by a conservative think tank that would not only make it harder to release undercover video but would criminalize obtaining, possessing, or distributing it to anyone—including journalists or regulators.

Cindy Cunningham, spokeswoman for the National Pork Board, told me she thought such legal protections could be appropriate. "I liken it to somebody walking into your living room and taking video," she said. "If you're at a cocktail party and somebody shoots video of you from behind a candle—like they did to Mitt Romney—is that legitimate?"

Back in September 2003, the American Legislative Exchange Council (ALEC) released a piece of model legislation it called the Animal and Ecological Terrorism Act. Like so many bills drafted by the free-market think tank, AETA was handed over, ready made, to legislators with the idea that it could be introduced in statehouses across the country with minimal modification. Under the measure, it would become a felony (if damages exceed $500) to enter "an animal or research facility to take pictures by photograph, video camera, or other means," and, in a flush of Patriot Act-era overreaching, those convicted of making such recordings would also be placed on a permanent "terrorist registry."

After a few years on the shelf, ALEC's pet project found new life when radical groups like the Animal Liberation Front and the Earth Liberation Front destroyed testing labs and torched SUVs, prompting FBI deputy director John Lewis to say in 2005 that "the No. 1 domestic terrorism threat is the ecoterrorism, animal-rights movement." The bill was overhauled—modifying the ban on shooting video to "damaging or interfering with the operations of an animal enterprise" and eliminating the section on creating a terrorism watch list. This defanged version, renamed the Animal Enterprise Terrorism Act, was repackaged to congressional leaders as a needed revision of existing laws protecting medical research from unlawful interference. Though it wouldn't become apparent until much later, it was the beginning of lobbyists and lawmakers conflating radical ALF-type incidents with the undercover work done by PETA and journalists. The bill sailed through the Senate by unanimous consent, and in the House encountered resistance only from Rep. Dennis Kucinich (D-Ohio). Kucinich warned it would "have a chilling effect on the exercise of the constitutional rights of protest," before a voice vote on the bill allowed it to be ushered through.

Application of the law soon nipped at the heels of the First Amendment. Most notably, a jury found a New Jersey chapter of a UK-based anti-animal-testing group guilty of conspiracy for publishing the home addresses of researchers at Huntingdon Life Sciences—handing down convictions for seven, including the chapter's webmaster. The case was chronicled in a low-budget documentary called Your Mommy Kills Animals, which discussed the case for prosecuting animal rights activist groups, including PETA and the Humane Society of the United States (HSUS), as homegrown terrorist organizations. The movie was underwritten by über-lobbyist Richard Berman, who runs the Center for Consumer Freedom and was immortalized by 60 Minutes as "Dr. Evil." Because nonprofits don't have to reveal their donor lists, it's impossible to know exactly how much money Berman takes in from particular corporations. However, a canceled check for $50,000, introduced as part of a lawsuit resulting from the documentary, revealed that Hormel was a backer—and Berman described them in testimony as a "supporter." (Berman sued the filmmakers because, contrary to his wishes, they made a movie that was too evenhanded.)

Next Page: Why would the industry possibly want to protect a few bad actors at the risk of major expense and public outcry?