'Pink slime' lawsuit moves forward: Could ABC News be held liable?

For many Americans, ABC News’s 'pink slime' report was the kind of hard-hitting public interest piece that changes rules and punishes bad actors. But to critics, it became synonymous with media misconduct.

Phil McCarten/Reuters
A ground beef display, with a disclaimer about so-called pink slime, is seen at a Fresh and Easy market in the Van Nuys section of Los Angeles in March 2012.

The “ick” factor was immense when ABC News aired an investigative report in 2012 on a super-processed meat product dubbed “pink slime” that could be found in many school lunch lines and elsewhere.

For many Americans, it was the kind of hard-hitting public interest piece that changes rules and punishes bad actors. To critics, however, ABC’s “pink slime” report became synonymous with media misconduct.

On Thursday, a judge in South Dakota allowed the bulk of the complaints in a defamation lawsuit lodged by Beef Products Inc. against ABC News – including anchor Diane Sawyer – to go forward. The major US media company had asked for the lawsuit to be thrown out.

The lawsuit alleges that ABC slanted its coverage of “pink slime,” costing the company $1.2 billion and 700 jobs. ABC has countered that the meat industry doesn’t get to dictate how people describe its products, and it maintains that its reporting on what the meat industry calls “lean, finely textured beef” (LFTB) was both accurate and fair.

But in her ruling, Judge Cheryle Gering noted that ABC News isn’t protected from liability simply by couching damning reporting with a single sentence about how authorities say the product is safe and nutritious.

In that way, First Amendment experts say, the “pink slime case” could become a test for whether “hedging” a blockbuster story with a throwaway disclaimer is enough to protect reporters from liability if that story hurts a corporation’s bottom line.

More specifically, the case is likely to rest on the factual details of the report – in particular, its contention that “pink slime” is “not meat.” Another factor: the jurisdiction in which a jury might one day hear the case is the cattle ranch country of South Dakota.

“Diane Sawyer is E.F. Hutton,” says Lin Wood, a lawyer and defamation expert in Atlanta. “When she speaks, people listen.... That’s why this one sounds like it’s a little problematic for ABC, especially in this jurisdiction and especially if a company can show impact on its business.”

To be sure, the “pink slime” story raised some legitimate concerns: for one, that US food labeling didn’t require producers to list the ingredient separately. The US Department of Agriculture has now begun requiring more details on meat labels.

LFTB, according to medicinal chemist See Arr Oh, writing in Scientific American, starts with “connective tissue, trimmings, and scraps from industrial butcher plants [that] are mixed in a large steel reactor.” The mixture is then heated and centrifuged to leave a “squishy pink goo.”

The definition of “meat” in the Code of Federal Regulations, Mr. Oh points out, includes everything that is in “pink slime.” “In this light, ‘slime’ doesn’t seem half as bad; as a culture, we’ve implicitly agreed that throat, blood, and tendons are already on the menu,” he writes.

Judge Gering’s ruling on Thursday was procedural and not on the merits of the case, and ABC News has vowed to vigorously defend itself. The ruling means, however, that the beef company’s attorneys can begin the discovery process of how ABC News produced the story.

Beef Products and its attorneys said in December that while ABC News did include a disclaimer, the story also called the product “not meat” and questioned the Food and Drug Administration’s determination it was safe, because some scientists had questioned its use. In that way, Beef Products has argued, the network’s intent was to damage the company, the only one named in the report.

What happens if corporate interests are able to, through the courts, curtail not just how journalists, but also average Americans, use language to hail or decry companies? Even unsuccessful lawsuits against media companies can have a chilling effect on journalists, legal experts say.

“In principle, the law is very protective of the media, but it can also be very expensive to vindicate that principle,” says Michael Dorf, a First Amendment expert at Cornell University Law School in Ithaca, N.Y.

In a 2006 report from the Pennsylvania Center for the First Amendment, Mr. Wood said he believes that US judges at some point will begin to roll back at least some of journalism’s defamation protections to create “a much more level playing field for plaintiffs.”

But in an interview with the Monitor on Friday, Wood said the “pink slime” lawsuit, even if it’s won by the beef company, would ultimately not “suggest we’re going to begin to give greater weight to reputation versus First Amendment.”

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