Eric Jan Hansum*
Just when talk-show audiences thought they had seen and heard it all-Geraldo's nose being broken on national television, accusations of staged fights on the Jerry Springer show-in 1998, a new chapter was written on what talk shows may have to deal with in the near future. Oprah Winfrey received some early insights about this new chapter when she was forced to appear in court over her warnings made about hamburgers during an April broadcast entitled "Dangerous Food."1
The episode featured several guests appearing on The Oprah Winfrey Show to discuss the impact of bovine spongiform encephalophathy-dubbed "mad cow disease" by the press in Great Britain, where it began-and the ramifications if the disease spread to the United States.2 As is often the case with talk shows, there were two versions of the program: a prerecorded version that exhibited a relatively balanced viewpoint but did not air before a national audience and a controversial version that was broadcast to millions.3 The latter emphasized statements made by Howard Lyman, a vegetarian activist.4 According to Mr. Lyman, if humans eat beef tainted by mad cow disease, the health consequences "could make AIDS look like the common cold."5 Oprah responded to this dire prediction by saying she would be "stopped cold from eating another hamburger."6
The following day, beef prices plummeted-some cattle ranchers called it the "Oprah Crash." Rather than advertise about safety factors to counteract the show's effects, cattle ranchers filed suit against Oprah Winfrey in Amarillo alleging several different causes of action.' One cause of action, which is the subject of this Note, was brought under the Texas False Disparagement of Perishable Food Products Act.8
Texas's act was passed around the same time as twelve other state statutes in the aftermath of the seminal food disparagement case - Auvil v. CBS "60 Minutes. "9 In Auvil, Washington State apple growers claimed that their ability to sell apples was severely diminished after CBS broadcast a program that lambasted the spraying of the pesticide Alar on apples to regulate their growth because the substance had potential carcinogenic effects.10 After years of litigation, the action was dismissed on various grounds, one of which was that the CBS report had been balanced in its viewpoint and could not be regarded as disparaging.11
The agriculture industry was not pleased with the lack of legal protection for its goods, for a news organization could wreak havoc in the marketplace by broadcasting negative comments about a product. Consequently, thirteen states enacted various food disparagement laws.12 Unfortunately, the rush to create laws granting protection for the agricultural industry has created some complex questions over the constitutionality of such laws and whether they violate the 1 st Amendment's guarantee of free speech.13 While some articles have suggested that the answer to whether a food disparagement statute is constitutional may be derived from recent defamation cases such as New York Times, Gertz, and Dun,14 the interrelation between defamation and commercial speech cases has either been ignored or discussed with limited analysis.
Accordingly, Part II of this Note discusses the facts and policies underlying food disparagement laws, especially as adopted in Texas. Part III focuses on disparagement laws against the backdrop of defamation and commercial speech jurisprudence as developed by the U.S. Supreme Court. Moreover, that section introduces a twotiered analysis that examines first the plaintiff and second the context in order to help courts deal with food disparagement laws in a way that is consistent with current concepts of defamation and commercial speech cases. The two-tiered analysis attempts to balance free speech and the public's need for knowledge against the protection of business interests, especially those of the farmer, whose very survival depends on selling the next harvest. …