'Pink Slime' Trial Begins, But It's The News Media Under The Microscope

May 31, 2017
Originally published on May 31, 2017 10:50 pm

In a South Dakota court room, ABC News will defend a series of stories it reported five years ago in a defamation law suit. Jury selection started Wednesday.

It's a trial that could prove to be a measure of public attitudes toward the media.

Back in 2012, ABC Correspondent Jim Avila reported on a practice of a South Dakota-based company called Beef Products, Inc.

To lower the fat content of its ground beef, the company added something it called finely textured beef product, made from the trimmings of the cow – lean bits derived from muscle and connective tissue — after it was butchered.

"Seventy percent of the ground beef we buy at the supermarket contains something he calls pink slime," Avila said in a clip from the original reporting – using the name for the substance that former USDA scientist microbiologist Gerald Zirnstein had given it: "pink slime."

ABC News pointed out in its stories that the addition of "pink slime" was common and not unsafe to eat, but was not labelled on meat packages.

Beef Products, Inc. says sudden public awareness of something with such an unappetizing name cost it business, leading it to close three plants and lay off more than 700 workers. In the wake of the ABC News reports, fast-food chains severed ties with the company, and hundreds of thousands of people signed petitions to keep pink slime" out of school lunches. In 2012, Beef Products, Inc. brought the suit that is just now coming to trial.

All Things Considered host Robert Siegel discussed the case with Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. A transcript of their conversation follows, edited for brevity and clarity.

What does the company, Beef Products, Inc., have to show to win a defamation judgment against ABC News?

If what they're suing under is the agricultural disparagement law in South Dakota, they have to prove that ABC News said the beef product was unsafe to consume. If it's a common, garden-variety libel case, they have to prove that what was published about them was false. Moreover, they have to show that ABC News acted with what is called actual malice.

Is the company bringing this action under both laws?

It's suing under everything under the sun – product disparagement, interference with business operations and a variety of other claims.

Can Beef Products, Inc. argue successfully that by being the only company that was described doing this — even though it was done by many other companies — that this constituted defamation in some way?

One of the questions about the agricultural disparagement law is whether it deals with the company or with the product itself. BPI has claimed that essentially what ABC News has said is that the company was complicit in mislabeling or not labeling when [finely textured beef product] was included in beef that was sold to consumers in grocery stores.

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?

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.

This case comes to trial at a time when the so-called mainstream media, which would include ABC News, are routinely attacked for purveying fake news and the president of the United States complains about lax libel laws. Could this case possibly move the standard for defamation?

It's only a trial decision at this point, so of course, it would have no precedential value. But I do think it's a bellwether in the sense that it raises two very critical issues. One is that BPI claims that ABC News was basically on a disinformation campaign, which is another way of saying fake news. The other goes at the heart of what the media are supposed to be doing, which is informing the public about things that might be matters of interest to them but which corporate America might not be interested in sharing with them. And I think that was ABC's justification for doing this story – simply to let people know that this substance was in their ground beef.

NPR senior editor and Salt host Maria Godoy contributed to this report.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

ROBERT SIEGEL, HOST:

In a South Dakota courtroom, ABC News will defend a series of stories it reported five years ago in a defamation lawsuit. Jury selection started today. It's a trial that could prove to be a measure of public attitudes toward the media.

Back in 2012, ABC correspondent Jim Avila reported on a practice of a South-Dakota-based company called Beef Products Inc. To lower the fat content of its ground beef, the company added something it called finely textured beef product made from the trimmings of the cow after it was butchered.

(SOUNDBITE OF ARCHIVED RECORDING)

JIM AVILA: Seventy percent of the ground beef we buy at the supermarket contains something he calls pink slime.

SIEGEL: In that clip from the original reporting, Avila used the name for this substance that a former USDA scientist have given it - pink slime. And while ABC pointed out in their stories that the addition of pink slime was common and not unsafe to eat, it wasn't labeled.

(SOUNDBITE OF ARCHIVED RECORDING)

AVILA: The USDA is clear in saying pink slime is safe.

SIEGEL: Beef Product Inc. says sudden public awareness of something with such an unappetizing name cost them business and lead to plant closures and job losses. And in 2012, the company brought the suit that's now just coming to trial.

Well, joining us to talk about this case is Jane Kirtley. She's the director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. Welcome to the program.

JANE KIRTLEY: Thank you.

SIEGEL: What does the company Beef Products Inc. have to show in court to win a defamation judgment against ABC News?

KIRTLEY: If what they're suing under is the agricultural disparagement law in South Dakota, they have to prove that ABC said that the beef product was unsafe to consume. If it's a common garden-variety libel case, they have to prove that what was published about them was false. And moreover, they have to show that ABC acted with what is called actual malice.

SIEGEL: And is the company bringing its action under both laws?

KIRTLEY: It is suing under everything under the sun - product disparagement, interference with business operations and a variety of other claims.

SIEGEL: Can Beef Product Inc. argue successfully that by being the only company that was described doing this even though it was done by many other companies, that that constituted defamation in some way?

KIRTLEY: One of the questions about the agricultural disparagement law is whether it deals with the company or with the product itself. BPI has claimed that essentially what ABC has said is that they were complicit in mislabeling or not labeling when it was included in beef that was sold to consumers in grocery stores and so forth.

SIEGEL: This case reminds one of Bismarck's line that people who want to savor either one shouldn't watch the process of making either sausage or laws. Making beef can look pretty ugly here. Is that essentially the essence of the lawsuit?

KIRTLEY: ABC actually did some reporting at BPI and showed what it characterized as a pristine plant with pristine processes. But the mere use of the phrase pink slime was something that captured the public imagination and I think frankly escalated the ick factor.

SIEGEL: This case comes to trial at a time when the so-called mainstream media, which would include ABC News, are routinely attacked for purveying fake news. And the president of the United States complains about lax libel laws. Is it possible that this case could possibly move the standard for defamation?

KIRTLEY: Well, it's only a trial decision at this point. So of course it would have no precedential value. But I do think it's a bellwether in the sense that it raises two very critical issues. One is that BPI claims that ABC was basically on a disinformation campaign, which is another way of saying fake news.

The other issue I think goes to the heart of what the media are supposed to be doing, which is informing the public about things that might be matters of interest to them but which corporate America may not be interested in sharing with them. And I think that was ABC's justification for doing this story - simply to let people know that the substance was in their ground beef.

SIEGEL: Professor Kirtley, thank you very much for talking with us today.

KIRTLEY: Thank you.

SIEGEL: Professor Jane Kirtley of the University of Minnesota.

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