Asserting that the beef market suffered substantial losses following the broadcast, several Texas cattle ranchers sued Oprah Winfrey, the producers and distributors of the Oprah Winfrey Show, and Howard Lyman, a guest on the show, in Texas state court. The cattlemen's suit was removed to federal court. At the close of the cattlemen's case-in-chief, the district court rejected the majority of the pending claims, saving only the business disparagement cause of action. This claim was rejected by the jury, and the cattlemen have appealed. Although we differ with the district court's reasoning on certain issues, we affirm.
Following the April 16, 1996, broadcast of the "Dangerous Food" program, the fed cattle market in the Texas Panhandle dropped drastically. Asserting that the beef market suffered substantial losses following the broadcast. In the week before the show aired, finished cattle sold for approximately $61.90 per hundred weight. After the show, the price of finished cattle dropped as low as the mid-50's; the volume of sales also went down. The cattlemen assert that the depression continued for approximately eleven weeks.
Under the Act, a person may be held liable for damages sustained by the producer of a perishable food product if that person knowingly distributes false information to the public stating or implying that the producer's product is not safe for public consumption. A "perishable food product" is defined by the Act as "a food product of agriculture or aquaculture that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time." Tex. Civ. Prac. & Rem. § 96.001. When considering the falsity of the spread information, the trier of fact is instructed to determine "whether the information was based on reasonable and reliable scientific inquiry, facts, or data." Tex. Civ. Prac. & Rem. § 96.003. This litigation represents one of the first applications of the Act. At trial, the parties disputed whether appellants' live cattle are a "perishable food product" protected under the Act and whether, in any event, the appellees knowingly disseminated false information about live cattle. Although the district court found that, on the facts before it, the fed cattle did not "decay beyond marketability" and thus did not fall within the statute's coverage, we do not reach that issue here. The court alternatively held that the appellees did not knowingly disseminate false information about beef.
False Disparagement of Perishable Food Products Act
In 1995, the Texas legislature passed the Act, following closely on the heels of the Alar apple scare.
The critical issue here is whether the appellees knowingly spread false information tending to show that American beef is not fit for public consumption. Tex. Civ. Prac. & Rem. § 96.002(a). The requirement of knowledge that the information is false is the highest standard available in the law. It is unnecessary to import First Amendment free speech protections in further embroidery of this already-stringent standard, except to note that the expression of opinions as well as facts is constitutionally protected so long as a factual basis underlies the opinion. There is little doubt that Howard Lyman and the Winfrey show employees melodramatized the "Mad Cow Disease" scare and discussion of the question "Can it happen here?" Perhaps most important, from the audience's viewpoint, was not the give-and-take between the glib Lyman and the dry Drs. Weber and Hueston, but Ms. Winfrey's exclamation that she was "stopped cold from eating another burger." When Ms. Winfrey speaks, America listens. But her statement is neither actionable nor claimed to be so. Instead, two false statements by Lyman and misleading editing are relied upon to carry the cattlemen's difficult burden. Like the district court, we hold they have not sustained their burden of articulating a honest issue of material fact concerning liability under the Act.
Branding
