By Steven Brill
Sept 18 First, the beef against ABC.
Most of us remember seeing or hearing about the multiple ABC
news broadcasts beginning last March about how meat packers were
adulterating the meat we buy in grocery stores and restaurants
with a filler called "pink slime."
Other news outlets picked up on the controversy over the
filler, which in fact had been reported on before, but which ABC
took on as a crusade.
Leading with Diane Sawyer's flagship evening newscast, on
which she touted her team's "startling investigation," ABC did
eleven separate broadcasts about "pink slime" over about four
weeks. This culminated in cheerleading and self-congratulatory
coverage of consumer groups responding to the ABC reports with
campaigns to demand that the major grocery store chains boycott
products containing "pink slime." It was as if Upton Sinclair
and his epic novel "The Jungle" that took readers inside the
gruesome meat packing plants of the early twentieth century had
been reborn in the person of Sawyer and lead on-air reporter Jim
These multiple reports - hyped by online and social media
reports from ABC producers and on-air people, along with
promotions on its local news outlets - and the resulting
consumer boycott campaigns had such a broad impact that the
companies that produce "pink slime" saw their business plummet
within a few weeks.
Last week, the leading "pink slime" purveyor, Beef Products,
Inc., whose primary operations are in South Dakota, sued ABC.
According to its complaint Beef Products quickly lost 60% of its
business as a result of the ABC broadcasts and had to lay off
700 of 1,300 employees.
Most of the modest press coverage of the filing of the suit
acknowledged the huge hurdles any plaintiff has in a country
where the First Amendment protects not only free expression, but
those, like ABC, whose expression angers its targets and even
causes them ruinous economic harm. That's true.
Some of the coverage, like a Wall Street Journal report,
also focused on Beef Products' invocation of a South Dakota law
"that gives agricultural companies the ability to sue when their
products are criticized," and noted that beef producers had
tried unsuccessfully to sue Oprah Winfrey in Texas using the
same type of argument that she had disparaged meat products.
That's true, too.
But I don't think that's the whole story. This case is not
likely to go away quickly.
Sure, the meat disparagement claims obviously will not and
should not survive First Amendment scrutiny, nor will Beef
Products' absurd claim that by cheering on a boycott of its
products ABC was "tortuously interfering" with the company's
contracts with its customers. (Actually, Beef Products claims
that ABC called for the boycotts, which is not true. But even if
it had, its First Amendment right to do so would easily trump
this interference with contracts claim.)
But - and this is a big but - there are 13 counts alleging
defamation in this complaint, and they are compellingly
persuasive. In fact, they make ABC look terrible.
To be sure, the great fun in writing about litigation is
that if both sides have good lawyers (and Beef Products' lawyer
is heavyweight former Chicago federal prosecutor Dan Webb), one
side's arguments can look persuasive until challenged by the
other side. So, maybe Beef Products' case will evaporate when
But as an aficionado of these cases, I can report that this
is the most detailed, persuasive complaint of its kind that I
have ever read.
After reading it - and, in fact, reading and re-reading its
painstaking explanation of how the plaintiff's product is
produced and used - and then looking back at some of the ABC
reports, I began to believe that it was Beef Products that was
slimed. I actually found myself believing that this may not be
"The Jungle, Part Two"; that what the company produces really is
the "lean, finally textured beef," or "LFTB" that Beef Products'
complaint says it is; that it is real meat, not "filler" or
"gelatin," as it was described on ABC; and that it is safe and
has been deemed so by federal inspectors and officials who were
not paid off or unduly influenced by corporate politics and
Moreover, I was especially intrigued by the claims that ABC
had blown off all the evidence Beef Products presented to the
network's producers saying that their first reports were wrong,
and that ABC not only did not correct them on air, but stepped
up its campaign against "pink slime."
If that's true, it could establish the kind of "actual
malice" or "reckless disregard" for the truth that would put ABC
in real legal jeopardy. Indeed, for me this is the most
compelling part of the complaint: Beef Products alleges that it
provided ABC with all kinds of evidence - including research
papers from respected independent agencies and even testimony
from the head of the Consumer Federation of America's Food
Safety Institute - refuting ABC's take on "pink slime."
Given the alarm sounded against "pink slime" by ABC and then
by so many other news outlets and consumer groups that piled on,
my buying into the idea that what Beef Products puts on our
grocery shelves is actually "lean, finally textured beef"
probably makes it seem like some of the slime has gotten into my
brain. But I've read the 256-page complaint - which is a good
place for a reporter to start before digging in and seeing what
ABC's answers are, including whether and why it chose to ignore
the countervailing evidence that Beef Products offered.
Whichever side is right, there is already enough beef here
for a terrific story that pushes beyond the ABC PR department's
standard response so far; that the suit "is without merit" and
"we will contest it vigorously."
Second, Romney as debater:
As explained here in June, I'm still hoping for a good
report on what exactly the rules are for the upcoming
presidential debates and what the points of contention were when
the two sides negotiated them. Who wanted the candidates seated
versus standing at a podium? Who wanted more or less structure?
Did both sides agree from the start that the second debate (on
October 16) would be a town hall format?
Who wanted which debate subjects to come first, second, and
third? (It seems to me that President Obama won that
negotiation, if there was one; foreign policy, which seems to be
his strong suit and underscores his status as President, is the
third debate topic, on October 22. That means it will be the
debate closest in viewers' memories as they think about their
votes 15 days later.)
I'd also like to see a report reviewing how Romney did in
his other one-on-one debates: when he ran against Ted Kennedy
for the senate in 1994 and when he ran for governor of
Massachusetts in 2002. We know he generally handled himself well
in the multi-candidate primary debates this year, but how does
he do when the focus is solely on him and one other opponent?