• by Thom Forbes  @tforbes, June 5, 2017

“Pink Slime” was not only a memorable phrase coined by a USDA scientist, it has proven to be an actionable one as the trial for a $1.9 billion lawsuit begins today in Elk Point, S.D., to determine whether ABC and correspondent Jim Avila slandered Beef Products Inc. in a 2012 report that used the term to describe the filler — aka “lean finely textured beef” (LFTB) — that was widely used in ground beef products.

“In the wake of ABC’s reports, Beef Products says its sales plummeted and ground-beef processors canceled orders in droves, forcing the company to lay off 700 workers. Less than three weeks after ABC’s first report, Beef Products suspended operations in three of its four processing facilities,” Jacob Gershman and Lukas I. Alpert report for the Wall Street Journal.

“BPI is bringing suit under a 1994 state law that makes it illegal to knowingly disparage agriculture products with falsehoods. The law allows for treble damages,” reports Jonathan Ellis for the Sioux City Journal, meaning BPI could wind up with a $5.7 billion award if ABC is found culpable.

“ABC, a unit of Walt Disney Co., says it never reported anything about the beef that it knew to be a lie and contends Beef Products is trying to punish it for making reasonable editorial judgments,” the WSJ reports.

“South Dakota is one of 13 states with laws that protect agriculture from disparagement. State legislatures began passing the laws after a 1993 decision in Washington where a court rejected efforts by apple farmers to punish ‘60 Minutes’ for a story that questioned the use of pesticides on apples, said Dave Heller, the deputy director of the Medial Law Resource Center,” Ellis continues. 

Roy Gutterman, the director of the Tully Center for Free Speech at Syracuse University, tells Ellis that the laws were intended to intimidate and chill news coverage, noting that “pink slime” was consistent with language used in the industry.

Indeed, it was “first dubbed by a former USDA microbiologist in an email around the agency,” writes Anneliese Mahoney for Law Street. "Here’s an example of Avila talking about the ‘pink slime.’”

“It's a trial that could prove to be a measure of public attitudes toward the media,” Robert Siegel points out on NPR’s “All Things Considered” in a discussion of the case with Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota.

“This case reminds me of Bismarck's line that people who want to savor either sausage or the law shouldn't watch the process of making either one. Making beef can look pretty ugly here. Is that essentially the essence of the lawsuit?” Siegel asked Kirtley.

“ABC News actually did some reporting at BPI and showed what it characterized as a pristine plant with pristine processing. But the mere use of the phrase ‘pink slime’ was something that captured the public imagination and I think, frankly, escalated the ick factor,” she replied.

But one woman’s ick factor is another man’s “fake news” nowadays. 

The trial “pits big agriculture against big media, and is a first major court challenge against a media company since accusations of ‘fake news’ by U.S. President Donald Trump and his supporters have become part of the American vernacular,” as Reuters’ P.J. Huffstutter and Timothy Mclaughlin write in their lede.

“Last September, ABC begged South Dakota Judge Cheryle Gering to reject claims. In a summary judgment motion, the network's lawyers argued that it was wholly unreasonable to imbue words and phrases with meaning contrary to explicit assurances of safety found in its reports. They told the judge of there never being a case like this permitted to go to a jury,” Eriq Gardner reports for The Hollywood Reporter. 

“And as for use of the ‘pink slime’ phrase, these attorneys added, ‘BPI has argued that the term … implies that LFTB is unappetizing, “repulsive” or “disgusting.” But those are value judgments, not provably false statements of fact. What is gross or disgusting to one person may be a delicacy to another,’” Gardner writes. 

In a commentary for Forbes pointing out that there is no national libel law, Brutzkus Gubner attorney Joseph Rothberg writes: “As the Supreme Court explained in the landmark Getz v. Robert Welch, Inc. case: ‘The rights of free speech and of a free press were protected by the Framers in verbiage whose prescription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law….’”

But the jury of 11 women and 5 men “in the heart of Trump country,” as the Hollywood Reporter’s hed puts it, are riding a “cultural zeitgeist now in full-throated distrust of various news outlets,” points out Rothberg, and “it seems that BPI’s timing in this case could not be more perfect.”