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Cass R. Sunstein, Even Beef Can Be Libeled, in The New York Times, at 29 (January 22, 1998)

A lot of people think the Texas cattlemen have no legitimate complaint against Oprah Winfrey. If free speech means anything, many people argue, surely it means that the host of a television show can hold a discussion on the possible health hazards of beef -- without facing a lawsuit.

But Texas cattlemen are suing Ms. Winfrey for $12 million, contending that an April 1996 show on mad cow disease cost them at least that much -- the day after the show was broadcast, cattle futures prices dropped 10 percent.

The cattlemen are relying on a Texas law that forbids anyone to spread information about perishable food products that he knows is false. Free speech advocates generally say that this law is patently unconstitutional. In reality, however, this may not be the case.

The First Amendment is not an absolute. Even public officials can sue people who have intentionally, or with reckless disregard for the truth, spread libelous falsehoods about them. If the First Amendment allows states to protect even public officials from intentional or reckless falsehoods, why can't the states prevent intentional lies about products?

Thirteen states have come to believe, quite reasonably, that government should also protect against those who knowingly make false claims about products, especially perishable foods.

Public scares aren't innocuous. Bad news travels fast, and it can put people's jobs at risk if an industry is so hurt that it has to lay off workers.

Laws forbidding intentional lies about products also prevent intentional misstatements from competitors, who have an economic interest in spreading such falsehoods. These laws can even help head off a destructive form of competition in the news media. Nothing is more sensational than a scary account of risks from food. After one or two such reports, there is intense competitive pressure for other newspapers and broadcasts to repeat them, preferably in the most attention-grabbing form. The result is that people are both more frightened and less informed; like ordinary libel laws, product libel laws can improve the marketplace of ideas and strengthen the competitive position of those who are more scrupulous and careful.

No one claims that states should be able to impose civil or criminal liability on a television program or newspaper simply because it gives false reports about products. Mere opinions are absolutely protected by the First Amendment, which allows room for any good-faith judgment. The free-speech principle also allows for jokes, hyperbole and even negligence.

But the Texas law is far more modest. It says that those who say what they know to be false must pay for the damage they have done. The law has some ambiguity, to be sure, but the best interpretation is simple: people who spread what are proved to be lies, and who knew that they were lying, must provide compensation for any harm done by their falsehoods.

If the cattle industry can't meet its burden under Texas law -- if the court finds no intentional falsehood and no harm -- Oprah Winfrey and her fellow defendants will be vindicated. But narrowly interpreted laws that protect products from libel can do a lot of good, and they aren't unconstitutional.

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