The US Political Economy's Obstruction of Food

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2010 Milking the Media: The U.S. Political Economy's Obstruction of Food Free Speech Lauren Asmus

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COLLEGE OF COMMUNICATION AND INFORMATION

MILKING THE MEDIA:

THE U.S. POLITICAL ECONOMY‘S OBSTRUCTION OF FOOD FREE SPEECH

LAUREN ASMUS

A Thesis submitted to the School of Communication in partial fulfillment of the requirements for the degree of Master in Arts

Degree Awarded: Summer Semester, 2010

The members of the committee approve the manuscript of Lauren Asmus defended on April 23, 2010.

______Jennifer Proffitt Professor Directing Thesis

______Andrew Opel Committee Member

______Jeanette Castillo Committee Member

Approved by:

______Stephen McDowell, Director, School of Communication

______Lawrence C. Dennis, Dean, College of Communication and Information

The Graduate School has verified and approved the above-named committee members.

TABLE OF CONTENTS

ABSTRACT ...... vi

1. INTRODUCTION ...... 1

2. POLITICAL ECONOMY ...... 13

2.1 Political Economy of the Legal System: Favors, Favoritism, Facts, and Funding ...... 18

2.2 Political Economy of Media: Profits Take Precedence over Principle ...... 25

2.3 Political Economy of Food: The Evolution and Ethics of ―Eat More‖ ...... 35

2.3.1 The Early Years ...... 36

2.3.2 An Unsteady Era for Agriculture ...... 41

2.3.3 The Gains of Grain ...... 45

2.3.4 Food Public Policy Determinants ...... 48

3. METHOD ...... 56

3.1 Critical Legal Studies ...... 57

3.1.1 Underlying Theory ...... 57

3.1.2 The Individual-Collective Dichotomy ...... 58

3.1.3 Linguistic Construction ...... 59

3.1.4 Scientific Uncertainty ...... 60

3.1.5 Legal Interpretation ...... 61

3.1.6 A System Inherently In Need of Self Correction ...... 61

3.2 Political Economy ...... 63

3.3 The Proposition ...... 63

4. BILLS, BSE, AND BULLYING WINFREY ...... 68

4.1 In the Beginning: Industry Created the APD Statute ...... 70

iii

4.1.1 Constitutional Questions of Truth: Absolutism and Abridgements ...... 72

4.1.2 ―Privileged‖ Statements can be Perplexing ...... 75

4.1.3 The Demarcation of Public and Private Figures ...... 77

4.1.4 Meanings of Malice ...... 78

4.2 Model APD Statutes Manifest into Law ...... 79

4.3 APD Statutes are Adopted in Texas ...... 83

4.3.1 Profit Preservation is Justified to Protect the ―Public‖ ...... 84

4.3.2 Notions of Evidence: Isn‘t Science Already Confusing Enough? ...... 87

4.3.2.1 CLS and Contradictory Evidence ...... 87

4.3.2.2 Junk Science, Lobbying, and Legislative Interests ...... 88

4.4 Goliath v. Goliath: Big Industry Fights Big Media in the Court Room ...... 90

4.4.1 Who Could Have Determined How Winfrey Would be Sued? ...... 93

4.4.2 Winfrey as a Public Protector? ...... 94

4.4.3 How Many Cattle Ranchers Does it Take to Sue Oprah? ...... 95

4.4.4 Beef: Overstated Risk or a Truly Perilous Product? ...... 96

4.4.4.1 Mad cow isn‘t bad for you…yet ...... 97

4.4.4.2 Legal and Scientific Background of the Winfrey Case ...... 97

4.4.5 The Perils of Perishable Beef ...... 100

4.4.6 Winfrey‘s Menacing Malice ...... 101

4.5 The First Amendment Goes Into Hibernation ...... 103

5. AKRE AND THE ABSENT APD CASE ...... 105

5.1 Posilac: The New Miracle Drug ...... 107

5.2 Akre and Wilson and the Battle over BGH Information ...... 110

5.3 The Truth Does Not Make Money ...... 111

5.4 Akre and Wilson Go To Court ...... 117

5.5 The Goliath Gang: Six Heads are Better than One ...... 120

5.5.1 In the Aftermath: Insight into Monsanto‘s Interorganizational Interests ...... 125

5.5.2 Dairy Threatens a Disparagement Suit ...... 128

5.5.3 Media Chill: The News Stifles Itself ...... 133

6. MILKING THE MEDIA: CONNECTIONS, CONSEQUENCES, AND CONCLUSIONS 139

6.1 Winfrey and Akre: From Similarity to Side Effects ...... 140

6.1.1 Uncertainties of the System ...... 140

6.1.2 Cattle Products and Interorganizational Interests ...... 143

6.1.3 Distracting from the Larger Issues ...... 144

6.2 Pressure Has Permeated the System ...... 145

6.3 Mitigating the Citizen-Consumer Model ...... 148

6.4 Recommendations and Expanding Future Research ...... 149

6.5 Conclusion ...... 152

APPENDIX: NUTRITIONAL AND POLITICAL FOOD MOVEMENTS TIMELINE ...... 157

REFERENCES ...... 160

BIOGRAPHICAL SKETCH ...... 174

ABSTRACT

A response to a myriad of rising doubts of the constitutionality of free speech regarding food, the present manuscript offers an alternative political economy and critical legal studies approach to agricultural product disparagement (APD) laws and the disconnect between legal theories and the realities that complicate the legal process. In reality, it is the political economy facing the legal, media, and food system have been driven in the interests of profits over citizen protections, wielding severe limitations on the distribution of food criticisms and information on food safety in the mainstream media. Additionally, the critical legal criticisms of the underlying philosophies and tenets of legal liberalism point to structural rather than mechanistic problems, especially considering the tactical use of SLAPP suits. This manuscript will use the stories surrounding Texas Beef Group v. Winfrey (1998) and New World Communications of Tampa v. Akre (2003) to illustrate how the greatest problem facing food free speech is the tactical manipulation of information by significant actors in the food and media systems. Without a reconsideration of the research, food criticisms will continue to be stifled and consequently consumers will be unable to question food preferences or vote with their dollars for change. In order to continue the fight for fair food, reconsiderations of the legal and policy making process surrounding food and media must be considered and corrected.

CHAPTER 1 INTRODUCTION

The United States food system has become increasingly questioned by consumers, scientists, and reporters, all concerned with the safety and quality of the products on supermarket shelves. As criticisms have grown, so has the resistance of industrial food producers to the dispersal of any information that could potentially harm profits or encourage people to demand change. This obstruction of food free speech is indebted to a legal system in which confusion and coercion walk hand in hand. As food writer Michael Pollan points out in Eric Schlosser‘s and Robert Kenner‘s documentary Food INC. (2008),

The food has become much more dangerous in ways that are being deliberately hidden from us. You've got a small group of national corporations who control the entire food system from seed to the supermarket. They are gaining control of food. This isn't just about what we're eating; this is about what we're allowed to say. What we're allowed to know. It's not just our health that's at risk. (n.p.)

Recent issues surrounding food have become a source of concern, yet it is not the rising rates of health problems, debatable diseases, or peculiar processes that are being portrayed as most threatening to the food system; surprisingly, it is the wavering consumer ability to know and debate these issues. Consumer health is at risk because it is faced with a media no longer capable or confident to discuss food concerns.

In order to maintain the momentum of the movement toward more savory food practices and products, protecting the interests of United States citizens over the corporate world, information must be enhanced so that consequently decision-making capabilities of the American public can be enhanced as well. First, however, people need a clear understanding of the ways in which their rights are being debased so that they can actively seek to change these violations. This manuscript will therefore illustrate the means by which critical information has

been marginalized in United States, the ways in legal protections involving food have evolved to suit the interests of industry, and how these processes work against free speech and information rights. This manuscript will do so by utilizing the history of the continually jeopardized legal, media, and food systems, exhibiting specific cases of legal retribution against free speech and the consequential chilling of voices in the media. By clearly illustrating the means by which agricultural product disparagement statutes (APD) and outside forces in the political economic realm have influenced and dominated the majority of food related information, this manuscript will offer a better starting point to seek change, and in turn recommend ways to use already visible ruptures in the system to dig at the roots of the food free speech problems and overturn practices that damage public interest. Information must reach not only the affluent, the educated, and the inquisitive journalist to create a movement toward fair food, but also the masses.

The inability to criticize food in the media first came to the public‘s attention in the early 1990s, when fast food giant McDonald‘s sued five Greenpeace workers in Great Britain for handing out leaflets titled, What’s Wrong With McDonald’s? Everything They Don’t Want You to Know (Gibb, 1999, p. 1; Nestle, 2002, p. 160). The group nicknamed the fast food giant, ―McMurder, McProfits, and McGarbage,‖ accusing McDonald‘s of exploiting workers and children, torturing animals, promoting Third World Poverty, selling unhealthy food, and destroying the Amazon rainforest (Schlosser, 2001, p. 245). McDonald‘s in turn accused the group of libel, claiming that every statement was an atrocious falsity (Schlosser, 2001, p. 245). After acting as their own lawyers, being spied upon by the corporation and the police, receiving no aid from their own government, and enduring the longest court case in Britain‘s history and multiple appeals, the defendants won (Nestle, 2002, p. 161; Schlosser, 2001, p. 249). It took nearly twenty years and over $60,000 in legal fees for the case to reach the European Court of Human Rights, who ruled that the two environmental activists did not receive a fair trial and had been denied freedom of expression, awarding them $150,000 in damages and loss (Frankel, 2005, p. 1). The activists finally triumphed over the fast food giant, with McDonald‘s ultimately spending $16 million in order to win a $68,000 settlement and gaining negative publicity, but the fear the case evoked amongst food critics offered a far greater award than monetary: silence (Beam, 1997, p. 1).

In the late 1980s the United States was also facing its own set of food frenzy crises in the media. One in particular would cause so much damage that it would catalyze the creation of specific legal protections for food and other agricultural products. CBS‘s 60 Minutes’ ―A is for Apple‖ segment pieced together the links between the growth regulating chemical Alar and supposedly cancer causing apples infiltrating the nation‘s juice and school cafeterias (Associated Press, 1989, p. 36). The report, based upon the results of the National Resource Defense Council‘s (NRDC) report, Intolerable Risk: Pesticides in our Children’s Food, a study on the carcinogens found in many of the chemicals used to grow the nation‘s produce, generated supermarket and media hysteria among the American public (Arnold, 1990, p. 2; Bremner, 1989, p. 1). Coverage graced the pages of USA Today, The Today Show, Entertainment Tonight, Consumer Reports, and even Meryl Streep‘s group ―Mothers and Others for Pesticide Limits‖ managed to raise half a million dollars after receiving a platform on Phil Donahue‘s program (Arnold, 1990, p.2- 5). While the Environmental Protection Agency (EPA) issued a report illustrating that legal amounts of pesticides are typically safe and that Alar never has caused cancer in humans, it was unable to drown out the cries of the mass media; the failed counter attack left the United States apple farmers market with a $200,000,000 loss and mountains of rotten unsold apples (Arnold, 1990, p. 2). Unlike the McLibel case, the NRDC findings were not entirely contested, but their presentation was; one of the pediatricians working on the report found that the group was ―overcommunicating the risk,‖ while another scientific reviewer found the report ―completely reasonable‖ (Dininny, 2010, p. 1). Feeling that their product was misrepresented, apple growers sued CBS and the NRDC under existing libel laws but eventually lost because the growers ―failed to raise a genuine issue of material fact regarding the falsity of statements made during the broadcast of "'A' is for Apple" (Auvil v. ―60 Minutes,‖ 1992; Auvil v. ―60 Minutes,‖ 1995, p. 823; Nestle, 2002, p. 162). The Supreme Court refused to hear the case, and as nutrition scholar and food writer Marion Nestle points out, ―food companies learned a lesson; statements suggesting that a product was unsafe could reduce sales—and badly‖ (Nestle, 2002, p. 162). Industry would take its case to the lobbying industry, claiming the need to protect small farmers from future irresponsible activist claims (Petersen, 1999, p. 1).

The result of the food industry‘s trauma was the emergence of agricultural product disparagement (APD) statutes, a series of legal regulations protecting against the slander of both aquaculture and agricultural products that perish in a short span of marketability (Bederman,

1998, p. 174). The laws are the result of the persistent work of the National Feed Industry Association and other lobbyists representing produce, chemical, and pesticide companies (Bederman, 1998, p. 172; Nestle, 2002, p. 163). With companies fighting to preserve profits from an unforgiving audience, by 1997 thirteen states officially adopted the statutes protecting food product disparagement and another twenty had considered them (Bederman, 1998, p. 174; Nestle, 2002, p. 163). Colorado makes it a criminal offense to slander salad, Florida protects both its agricultural and aquacultural products, Alabama laws are actionable whether the defendant knowingly made the statement or not, and Texas requires ―reasonable scientific evidence‖ for all unsavory claims toward food (Alabama Action for Disparagement of Food Product or Commodity §§ 6-5-620 to -625m, 1996; Colorado Destruction of Food Prohibited § 35-331-0, 1999; Florida Violations of Certain Commercial Restrictions § 865.065; Texas False Disparagement of Perishable Food Products §§ 96.001-96.004; Vernon, 1996). Food became officially protected from what industry viewed as activist rants, but as future cases would show, APD laws created adverse side effects, generating fear among reporters of being sued for providing questionable information, potentially protecting against appropriate criticisms, and ultimately undermining the decision-making capabilities of citizens in the pursuit of healthy food.

The nation is by no means in the dark about the problems stemming from its powerful industrial food system. In spite of the threats exhibited by landmark cases such as McLibel and Alar, many have attempted to counter the disparities in safe food production, citizen‘s health and nutrition, and even the distribution of food related information. From first lady Michelle Obama‘s efforts to fight obesity (Superville, 2010), to frequent mainstream media coverage of APD cases in popular platforms such as the New York Times (Cropper, 1997; Verhovek, 1998), to documentaries such as Food INC. (2008), Supersize Me, and McLibel, that specifically highlight stifled food criticisms, there has been increasing attention about the need to work against the obsessive drives for both consuming and creating cheap food. The result has been a slow but steady gradient of change against a powerful corporate force. Scholars have notably contributed to the movement, illuminating unsavory practices and pointing to constitutional confines in the application of free speech (Akre & Wilson, 2006; Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Lynch, 1998; Hansum, 2000; Semple, 1995; Wasserman, 1999). Slowly, ruptures in the dominant discourse of

production through the unveiling of shocking practices in the food system are asking people to more closely consider how they eat, how they learn about food, and how they support the practices surrounding their food; consequently, they are slowly realizing their power in both the system surrounding food processes and their power as a decision-making force in society as a whole.

However, even the best attempts to stop these infringements on information and facilitate better transparency in the food system have been unable to reach mass audiences and incite far- reaching change. Much of the battle against the dominant ideas perpetuated by the food industry has only been fought by journalists and those already privileged to education and trained to question information; even these sources face constant fear of retaliation from food producers, industry, and even their own bosses. This is in part due to the potential APD legal battles facing those who wish to confront industry, but the largest problem in the pursuit of food transparency is the consequential lack of institutional criticisms. Safe food, nutritionally-sound diets, responsive societies, and even constitutionality are all important factors that can eventually help consumers, but ultimately these issues do not address the overwhelming and all encompassing problem that change will fail to effectively happen unless public information is once again restored to its full right. In short, the American public is still lacking critical, complete, and far reaching information that can substantially affect the people who most desperately need to become aware of the problems and seek changes regarding their food.

As American media critic and professor Herbert Schiller pointed out in 1977, ―Most of us are unable to comprehend the full dimensions of what is happening (or not happening) in the economy, because the media are unable, actually institutionally incapable, of presenting the true character of what is occurring‖ (Schiller, 1977, p. 101; emphasis in original). This is because the structure of the media is ―indistinguishable from that of industry,‖ working toward the imperative of profitability, introducing technology with no notice of social cost, and operating without heed to its ideological outputs (Schiller, 1977, p. 101). The structure of this perilous system still stands true years later; in the crisis of food free speech today, the pollution that stems from media outputs can be more deadly than physical threats, because pollution of the mind creates a generalized inability for the citizenry to discern the problems in their system (p. 102). APD statutes have dirtied the act of speaking against unethical, unhealthy, and unclean food

practices, polluting the American plurality of ideas and tainting it with the idea that free speech can create unnecessary economic ruin and is a shameful act that could trick the citizenry with false facts. Even greater than the threats harmful information poses to the public is what specifically stems forth from APD cases and mediated chill: today it is a lack of information that has become one of the greatest threats to consumer safety and citizen‘s rights, inhibiting effective decision-making and changes in the food system.

In order to understand the magnitude of the fear APD creates on speaking out against unfavorable products, it is important to consider a few definitions and overarching themes that run through agricultural disparagement. First, APD statutes fall under tort law, with a strong basis in libel and common law; this primarily means that cases are reviewed at the state level on a case-by-case basis, using the examples of former cases found in state, federal, and Supreme Court precedents (Cohen, 1989, p. 1). Second, defamation and disparagement have become nearly synonymous concerning their protection of rights. While defamation protects reputation and disparagement falls into the protection of property rights, goods, and services, it is the difficulty encountered in proving disparagement that has led to an ease of cause of action (facts that justify the right to sue) in agricultural disparagement laws, meaning in short, states are favoring the creation of statutes that make it easier to recover damages under proof of injurious falsehood (Fell, 1989, p. 983; Garner, 1996, p. 183-185; p. 210). Both standards can be used in a disparagement case; thus, while each case is pursued under a distinct category, the precedents the judge decides to use and which aspect of the case each precedent applies to may vary.

Third, while still considering that litigation varies by state, there are several overarching themes. In order to show disparagement, plaintiffs must prove that the defendant published a falsehood; acted with malice; this falsehood was communicated to a third party; the falsehood played a material and substantial part in inducing others not to deal with the plaintiff; special damages were incurred in the form of loss or trading; and the defendant was not privileged to make the statement (Arnold, 1990, p. 108; Cohen, 1989, p. 2). Typically statements that are privileged are those made in the defendant‘s interests, made in the interests of others, made in the evaluation of an employee, made to protect the interest that a speaker and the recipient of the statement have in common, and statements made to public officials (Arnold, 1990, p. 111; Cohen, 1989, p. 2). Finally, there is one major complication that particularly affects APD cases

involving a society in which plaintiffs typically live in a state separate from a major media figure or television station defendants. Disparagement laws are regulated by state law unless there is a ―diversity of citizenship,‖ where a plaintiff and defendant reside in separate states, in which case the case is tried in federal court (Cohen, 1989, p. 3). Since cases are governed by the laws of the state even when brought forth in federal court, burdens of proof differ depending on the state in which the plaintiff resides (Cohen, 1989, p. 2). Therefore, it is critical to keep in mind that any person who has the potential to be seen as a public figure and speaks out against an agricultural or aquacultural product can be sued by any company in any state, according to the laws of the plaintiff‘s state, and regardless of whether the defendant has APD laws in his/her own state.1

Oprah Winfrey, talk show host with an audience of millions, is well aware that the exercising of one‘s right to free speech can end in controversy; she encountered the complicated web of agricultural disparagement statutes in one of the most highly publicized cases to date. The subject of her April 16, 1996, episode illustrating the practice of providing cattle with feed derived from cattle and other ruminant animal scraps led Winfrey to publicly swear off burgers, a revelation Texas cattle ranchers claimed cost their industry $90,000 the following day and caused a 10 percent drop in cattle futures prices from which it took weeks to recover (Baldauf, 1998, para. 8; Verhovek, 1998). As a result, the media giant was sued for more than $12 million on the grounds of agricultural disparagement, and the United States‘ food free speech found its first major battle with free enterprise (Verhovek, 1998, para. 5). Winfrey‘s suit was the first civil action brought forth under agricultural disparagement in the United States (Wasserman, 2000, p. 325). Interestingly, Cactus Feeders and their president Robert Engler, responsible for suing Winfrey, are listed as a major contributor to the group who drafted the APD laws (Goetz, 1997).

Texas has run as a popular example of David and Goliath litigation, featuring a multitude of public figures such as Oprah, the Texas Beef Industry, American Honda, and emu ranchers (Cropper, 1997; Durchslag, 1998, p. 179; Texas Beef Group et al, v. Winfrey, HARPO Productions Inc., Lyman, 1998). Since Winfrey‘s suit was the first and arguably the most famous civil action brought forth under agricultural disparagement in the United States, it offered great hopes of becoming a precedent for constitutionality and a means of encouraging citizens to protect their free speech rights (Wasserman, 2000, p. 325). However, the case‘s win resting on the plaintiff‘s failure to adhere to legal definitions of perishable product and proof of malice, a

verdict that could appear relatively erroneous to those unfamiliar with the legal system, illustrates how First Amendment protections are sometimes not realistically addressed in the legal system (Texas Beef Group; et al, v. Winfrey; HARPO Productions Inc., Lyman, 1998 [Herein Texas Beef Group v. Winfrey]). The win led Winfrey to proclaim, ―free speech not only lives, it rocks!‖ (Katel, 1998, para. 1). However, rumors of the celebrity‘s newfound carefulness, including her refusal to release the episode or speak out on the issue, illustrate how questions of chill, or the act of deterring people from engaging in an activity through fear of fine, punishment, or depravation of governmental benefit, have risen to new heights in the media (Nestle, 2002, p. 165; Rampton & Stauber, 1997, p. 192; Schauer, 1978, p. 689).

In the midst of Winfrey‘s legal crisis, other journalists were experiencing the effects of a media intimidated by the newfound APD and high profile cases illustrating legal vindication from food producers. Jane Akre and her husband Steve Wilson, reporters for a Fox affiliate news station located in Tampa, FL, were both fired over their attempt to maintain the integrity of their story on food (Akre & Wilson, 2006, p. 552). In 1997 the investigative reporters were working on a story about the effects of the rBGH hormone, its affects on health, and the roles of farmers and chemical companies in its dispersal (Akre & Wilson, 2006, p. 553). On the eve of its February airing, however, Monsanto, a major manufacturer of rBGH, sent a letter to the head of Fox News in New York threatening to create ―dire consequences for Fox News‖ if the unfavorable and defaming information was released (Akre & Wilson, 2006, p. 553). The story was suddenly pulled; after eight months of re-reviews, undergoing eighty-three rewrites, and refusals of the journalist to ―massage the facts‖ of the story, the piece was abandoned and Akre and Wilson received letters of dismissal from Fox‘s attorneys (Akre & Wilson, 2006, p. 554). According to Akre and Wilson (2006):

Fox was not prepared to work without fear or favor as is the professional standard for journalists. We were mindful that a news organization does have the right to choose not to air a story. As distasteful as this was, Fox News chose to exercise that right. (p. 554)

Akre felt that she had been retaliated against for refusing to lie in her story and thus participate in illegal activity; she consequently filed the first whistleblower lawsuit ever brought by a journalist against a news organization, arguing that Fox was attempting news distortion over the public airwaves (Akre & Wilson, 2006, p. 554). After a series of trials and appeals, the couple lost, and

not only was Akre unable to find work in the media and left in massive legal debt, but the news was faced with an example that could encourage journalists or networks to avoid information that could perpetuate expensive lawsuits (Akre & Wilson, 2006, p. 554). It was later revealed that Akre and Wilson were offered a settlement to keep quiet about the network‘s attempt to silence them; the pair refused (Achbar, 2003, n.p.).

Akre and Wilson‘s case is unusual because it clearly exhibits a fear of the legal system without an actual APD lawsuit. While former similar cases such as Food Lion and Chiquita Banana did not address the plaintiff‘s poor practices because of the unethical means the journalists took in investigative reporting, Akre and Wilson went by the book, obtaining their information from accredited sources and were not accused of committing any illegal investigating (Akre & Wilson, 2006; Achbar, 2003, n.p.; Cohen, 1998, p. 28; Food Lion v. Capital Cities/ABC, 1999; Nestle, 2002, p. 165).2 The ability of this story to still be silenced points to additional complications beyond the realm of the legal means of investigative reporting and APD laws, exhibiting a web of connections that seem to protect profits over journalistic integrity. While the words ―drastic measures‖ gave the impression of an impending lawsuit, the fact that this pressure was also coming from one of Fox‘s major advertisers, Monsanto, leads to questions regarding the capability and willingness of the station to question a food product (Akre & Wilson, 2006, p. 553).

Akre and Winfrey‘s troubles were affected by what many scholars point to as the current political economy, or ways the political and economic environments affect each other through a complicated web of relationships between lobbyists, legislators, firms, owners, labor practices, market structures, policies, occupational codes, and subsidies (McChesney, 2008, p. 150). This case illustrates that the United States political economy, particularly the inter-organizational connections surrounding agricultural disparagement statutes, has now become intricately woven with a media system already facing pressure from a powerful food industry, the result of which has been an obstruction of free speech. The cozy relationship of industry to both those in the media and those who regulate it stands to create even greater harms to citizens, consumers, and the journalists who attempt to protect their interests considering the critical nature of information on nutrition, disease, and other perils facing the food system. As the former cases illustrate, Akre was not the first to be affected by a media facing pressure from economic interests and

outside industrial ties. However, the timing of Winfrey‘s case, the Fox journalists‘ silencing, and subsequent events surrounding APD statutes, and the silencing of other food criticisms in the media leave questions as to whether the individual events are the result of circumstance, or instead if systemic problems surrounding legal institutions under capitalism and the interests of the media system as an economic venture have merged and are keeping food criticisms at bay.

Analysis of the consequences and potential problems arising from the Winfrey and Akre case, multitudes of similar litigation, and lawsuit threats have generated considerable controversy, with research pointing to constitutional confines in the application of food free speech and positing that protections must be enhanced lest all future cases be subject to the poorly constructed verdicts such as the ones in Texas and Florida (Akre & Wilson, 2006; Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Lynch, 1998; Hansum, 2000; Semple, 1995; Wasserman, 1999). Wasserman (2000) is correct in his assertion that ―no court has yet addressed directly the many constitutional concerns with these statutes‖ (p. 325). However, while the literature argues that constitutionality is essential to rid the food system of oppressions on free speech, addressing this mechanistic shortcoming of the court will not incite long lasting change. In the agricultural disparagement controversy, it is ultimately the influential ties the food industry holds over media that are responsible for the greatest threats to free speech and transparency in the food system. The literature has not considered the importance of an inherently flawed legal system, where faith in liberal legal assumptions ignores the reality of the world the legal system inhabits, one which is both unstable and contains corporate relationships that reach beyond consumer concern. Critical legal studies (CLS) and theories of political economy provide a means of analysis for detecting the underlying and inherent problems in the legal system, offering explanations for why constitutional protections in agricultural disparagement cases has failed to protect free speech and prevent media chill and how such protections could cause greater infringements on rights than the ones already being enacted. An analysis of the political economy of food and media illustrates the inability of speakers to confidently discuss issues in the food system because of the intricate web of interests strung both within and between those who make the nation‘s laws, those who make the nation‘s media, and those who make the nation‘s food.

While reporters should consider the risks concerned with inciting food related panics, by informing consumers of agricultural risks in a more timely and complete manner, without worrying about the threat of overbearing shareholders or legal threat, the media can better function as a watchdog of the public interest (McChesney, 2008, p. 25). Without reevaluating the significance of the effects the legal system and political economy create on coverage of food issues, future stories stand to either remain untold or be deprived of critical information that could greatly improve consumer health. Therefore, an analysis of the political economy of food and political economy of media regarding food must be considered alongside the ways that critical legal studies find the legal system and APD laws as a latent infringement on free speech, a means of regulation under the radar. Akre and Winfrey‘s cases offer ties between agricultural disparagement statutes, their subsequent negative effects on reporting, and the pressure and problems created by the current political economy, illustrating how questions of the constitutionality of these laws is not the greatest problem.

This manuscript examines the underlying issues surrounding the difficulties in reporting food criticisms in the media. This manuscript will first offer an explanation of the evolution toward and basic structure of the political economy, political economy of media, and political economy of the food system, highlighting the specific implications their relationships hold in accordance with food free speech. Next, this manuscript offers a means of analysis by which to consider Winfrey and Akre‘s cases, providing critical insight on the importance of critical legal studies and the inherent faults in the individual-collective dichotomy, linguistic construction, scientific uncertainty, legal neutrality, and the liberalism‘s self corrective measures. It will also provide a means of mapping the political economic ties both within and between the two cases. Next this manuscript offers a critical legal and political economic analysis of the Winfrey case and subsequent events and illustrating the evolvement of the APD laws that affected her. This manuscript then offers a critical legal analysis of Akre‘s case, highlighting not only the political economic implications but also the ways uncertainty was perpetuated in the legal system with a critical legal analysis. Lastly this manuscript offers a discussion of the connections and consequences stemming from the Winfrey and Akre cases; an illustration of the potential effects of not correcting the speech stifling actions resulting from the relationships between political, media, and food groups; and proposes solutions for protecting both viewers and producers. In order to drop the ―veil between us and where our food comes from,‖ information processes that

affect the public interest must be reinvigorated and protected, and only then can the veil be lifted and consumers vote to enact change in the food system (Schlosser & Kenner, 2008, n.p.).

CHAPTER 2 POLITICAL ECONOMY

In order to understand the obstruction of free speech in a nation which so strongly embraces Constitutional liberties, it is critical to consider the theoretical structure of the social system and role of the current political economy, not as an absolutist conspiratorial state, but as a clever, creeping, and coercive evolutionary factor amongst institutions, a movement Habermas refers to as ―the rise and fall of the public sphere‖ (Albert, 1992, p. 17; Roberts & Crossley, 2004, p. 2). The public sphere was initially perceived as a way to restore historic debate on public life and citizenship, with theories maintaining that communication as a speech situation provided a foundation for citizen participation in the decisions that affect their everyday lives (Habermas, 1994, p. 93). This idea is supported in multiple theories and philosophies, with communication through free speech often perceived as the critical factor in the maintenance of citizens‘ rights. Napoli (2001) points to the protections of Free Speech in the First Amendment as a way for individuals to achieve self fulfillment and liberty; a means for the development of individual faculties; the process that advances knowledge; a method for enhancing the democratic process; an aid for achieving stability in a community; and a road to self realization and the autonomy of consciousness (p. 33). Mill (1859) found that,

the peculiar evil of silencing expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. (p. 59-60)

His idea enhanced the very spirit of the public sphere, where a collision and free exchange of opposite opinions could be linked to the reaching of truths and more importantly the best representations of the wants and needs of the public (Napoli, 2001, p. 101). This was a process

of active engagement, where opponents‘ willingness to hear and understand both sides of arguments could allow conflicting doctrine to share a truth between them; essentially the public conception of truth would be the middle ground of a variety of ideas in the debate of the public sphere (Roberts, 2004, p. 72). Meiklejohn (1948) went on to posit that the uninhibited flow of accurate information could result in societies where ―unregulated talkativeness‖ could be replaced with the protection of collective interests, where ―what is essential is not that everyone shall speak, but that everything worth saying shall be said‖ (p. 25). Through all of these interpretations, free speech through freedom of the press allows a facilitation of the negative concept of liberty, or freedom against censorship by the government and a check on government power (Soley, 2002, p. 191). Free speech became representative of society and not the sovereign, and in order to protect against absolute power of the government, media corporations were given control of media content (Soley, 2002, p. 191).

In short, violations of free speech should not be an issue because the United States political system has been designed in a way that offers rational checks and balances against absolute power, corruption, and inefficiency. Governments are meant to enforce, embrace, and obey the laws outlined in the Constitution and the First Amendment; the media are responsible for enforcing these laws by providing transparency of the government and other issues critical to the public (Jhally, 1989, p. 65); and economic sectors should provide perfect information about their products to facilitate consumer choice in the free market (Mosco, 2009, p. 62). The ideal social system should support a free flow of information and facilitate decisions, ideological and economical, based on the public‘s support. The role designed by the public and for the public was simply to choose; citizens‘ rights are based on the ability of citizens to make informed decisions and vote, either through protest, purchase, or compliance, accordingly. ―The duty of the democrat, and especially of the democratic intellectual,‖ is to work to unveil forces of power, and work toward enlightened and egalitarian social decision-making (McChesney, 1999, p. 3).

Ideally the public sphere ―was reduced to an aggregation of individuals with no existence sui generis and no technology,‖ making institutions natural results of human interaction but skeptically watched because of their tendency to restrict freedom of choice and the free flow of ideas (Mosco, 2009, pp. 38-39). However, with the onset of technology, such as centralized television networks and a print media that reaches world-wide, problems regarding citizen

participation in public decision-making have stemmed from the fact that the ―public‖ input in the ―public sphere‖ has been drastically reduced. Mosco (2009) points out that the emergence of the contemporary commodified mass media and the general expansion of consumerism and the bureaucratic state became the root causes of the decline and privatization of social debate and ―oppositional spaces,‖ essentially acting as the downfall of public decision-making capabilities (Mosco, 2009, p. 151-152). Habermas supports this by attributing the ―rise and fall of the public sphere‖ (Roberts & Crossley, 2004, p. 2) to the emergence of the state as a welfare state, increasingly intervening in people‘s lives, and ―assuming their private concerns and interests as their own‖ (p. 5). As McChesney (1999) points out, ―our era is increasingly depoliticized; traditional notions of civic and political involvement have shriveled. Elementary understanding of social and political affairs has declined‖ (p. 2).

Reasoned arguments over key issues of mutual concern have been placed in the hands of economists and politicians rather than the democratic public (Roberts & Crossley, 2004, p. 2), and as Adam Smith (1904) so famously pointed out in The Wealth of Nations, ―it is not from the benevolence of the butcher, the brewer or the baker, that we expect our dinner, but from their regard to their own interest‖ (Bk 1, Chap. 2:2). The evolvement from a public to a private sphere reliant on the free market has become a means for inequality and exploitation (Mosco, 2009, p. 39). The formerly ―informed citizen‖ has over the past few centuries increasingly come to rely upon the state for information and representation, losing his/her independence and what Roberts and Crossley (2004) refer to as the central essence that comprises the role of the citizen (p. 5): In short people no longer actively go out and speak their opinions to the benefit of the larger society: the media and government do this for them. As Roberts and Crossley (2004) point out,

And by the same route, political debate has increasingly lost its political edge by degenerating into utilitarian wrangling over the distribution of resources and private (domestic) interest. In the place of public debate between private citizens regarding public/political issues (i.e. public sphere) we find interest groups, representing sectional interests from within the state‘s clientele, competing and negotiating for a greater slice of the public purse. (p. 5)

While there are still some citizens who actively take a role in the dissemination of ideas and responsibility of contributing to the decision-making process, the ability and confidence of the

masses to incite change has notably gone into hibernation. As McChesney (2009) points out, ―What is conspicuously absent from notions of the United States as a democracy is anything that has much to do with democracy, the idea that the many should and do make the core political decisions,‖ and instead many key decisions are being made by the corporate sector and special interests process, leaving little regard for public awareness and input (p. 4). Now, more than ever, those in the private sphere are fighting to keep their profits above the considerations of the public sphere, not only attempting to create or stand outside the lines of governance but also avoid public sphere criticisms as well. In essence, ―Politics has become a stage show‖ (Roberts & Crossley, 2004, p. 5), and through the dumbing down of the public sphere, the marketplace of ideas and the economic marketplace have come to play vastly different roles in reality than they do in theory.

In his analysis of corporate media, Ben Bagdikian (2004) points to a quote from Lord Acton (1887) that thoroughly encompasses the spirit of the current political economy: ―Power corrupts; absolute power corrupts absolutely‖ (p. 1). The nation has been largely influenced by the power of the private sphere; in the media alone the power that has been handed to the largest media conglomerates is both ideologically and monetarily more powerful than any ―despot or dictatorship in history‖ (Bagdikian, 2004, p. 3). While the research argues that the crisis surrounding the food system and agricultural product disparagement laws is the result of a violation of constitutionality (Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Hansum, 2000; Lynch, 1998; Semple, 1995; Wasserman, 2000), the reality of the problems surrounding stifled food criticisms stem from a society that has over the years lessened citizens‘ abilities in decision-making (instead trusting media and government officials to do so) and operates largely under the influence of its drive for industrial survival and economic success. Rather than the informed public envisioned by those who drafted the First Amendment, today‘s triangle of power, the government, the media, and the economic world, has merged into an inter-organizational network that primarily functions according to one key principle: survival in a capitalist system. They find ways to work together to enhance their power, acting as the driving force that shapes contemporary American life (Bagdikian, 2004, p. 4-5).

The study of private interest in the public sphere is what the scholarly world refers to as political economy. Mosco illustrates this concept under two approaches. The first, a more narrow approach, defines political economy as ―the study of the social relations, particularly the power relations, which mutually constitute the production, distribution, and consumption of resources, including communication resources‖ (Mosco, 2009, p. 2). The second, a more general approach, defines political economy as ―the study of control and survival in social life,‖ with control alluding to political processes and economic survival (Mosco, 2009, p. 3). The combination of these definitions has the breadth to allow analysis to cover and encompass all human activity, giving consideration to the ―totality of social relations‖ in economic, social, political, and cultural realms (Mosco, 2009, p. 3-4). The major question in political economy then becomes, ―How are power and wealth related and how are these in turn connected to cultural and social life?‖ (Mosco, 2009, p. 4). Benson (1975) posits that the answer to this question lies within the inter-organizational network, where the distribution of these two scarce resources, power and wealth, are exchanged and distributed throughout various organizations of the political and economic realms (p. 230). Here, the inter-organizational network‘s close ties mean that industry and other institutions, such as the government, the media, or food agencies like the FDA or USDA, have significant amounts of interaction with each other, exchange scarce resources, and ultimately influence cultural and social life through the influence of policy, the physical production of goods, or the ideologies of the nation (Benson, 1975, p. 230).

The study of political economy illustrates that the era of the rights-bearing citizen has passed its former glory; citizenship is no longer expressed in the trust of the community, and rather the new citizen right has been manifested in a set of affiliations with political parties and interest groups (Schudson, 2003, p. 55). The new participation in the public sphere has been diminished to the role of the citizen-consumer, where citizens can only foster the expression of ideas and opinions by choosing which products to support; they can, in reality, determine very little in the production processes, both ideological and economic. Thus, this reality severely limits the ability of the individual to forward his/her opinions and have them translate to social change. This questionable form of free speech and the elite‘s motivation for infringing upon this right are now apparent in the actions of corporate capitalist institutions: if an idea is harmful to these institutions‘ survival, they not only have the power to stop supporting it, but also to eliminate it, and often under the radar of public perception and criticism. Often common

perceptions of and research about the legal system, the media, and the food system tend to ―ignore the relationship of power to wealth and thereby neglects the power of institutions to control markets‖ (Mosco, 2009, p. 62); naively, they focus instead on these institutions‘ theoretical functions and are surprised by the lack of influence the citizen is able to directly input.

As the emerging issues regarding the lack of information on food grow, it becomes more apparent that the capitalist system today encourages almost all institutions and organizations to operate far from their idealistic roles. It is important to understand, however, that this drive for dominating information and protecting profits is not necessarily evil, but rather an effect of the need for business to survive in a competitive network. These drives must be checked by the movements of citizens attempting to protect the rights of the people above those of the market, and in order to do so, people must recognize the materialization of these drives and the side effects these create on access to information. There must be a better understanding of the socioeconomic determinants of productivity and purchasing, particularly corporate structure and ownership, access to information, education and training, and social background in order to understand the drive and means by which the conglomerate and corporate world abuses obstructs free speech (Mosco, 2009, p. 62). The infiltration of the nation‘s protective organizations and diminishment of vested public interest are best illustrated through the study of the evolving and current political economy, as private interests in the legal process, media, and food policy encourage institutions to consider economic concerns over those of the citizens they are each meant to protect.

2.1 Political Economy of the Legal System:

Favors, Favoritism, Facts, and Funding

It is a common misconception that while government and economic interests are related, they have distinct functions and can be conceptualized separately (Halcrow, Spitze, & Allen- Smith, 1995, p. 16). The reality of the situation is that currently, the political system is afflicted with an ever-growing accumulation of business interest, increasingly shortening the separation between the conceptualized realms of government and economics. The best way to understand the inter-organizational network and its implications affecting the American legal system is by

analyzing political economy‘s study of how capitalist societies both encourage and manifest private influence in public realms. Following the Marxist line of thought, Jhally (1989) posits that capitalist societies are typically characterized by the increased concentration of power ―in the hands of those who own the means of production,‖ (Marx, 1852, p. 71-77; Jhally, 1989, p. 67), and in the United States this domination is both legally and ideologically achieved through institutions meant to protect the citizen: the state and media.

Understanding the means by which the governed consent to their own domination requires an analysis of the methods by which the groups in power solidify their authority through institutional manipulations. Under theories that consider political domination as legitimated forms of social domination, particularly those that analyze the role of the citizen in the public sphere, control of the legal and/or media system can equate to control of both the physical capabilities and ideological inputs of the governed. Domhoff‘s (1978) theories, for instance, posit that the ruling classes, composed of power elites from big business and media, work to systematically ensure their ownership of wealth and ideas by manipulating processes in government (p. 3). Their aim is to create legitimated claims to domains by gaining legal permission to operate in desired spheres, define the practices and claim the benefits within these realms, and consequently enhance both power and wealth (Benson, 1975, p. 232). This is done in several ways, primarily by utilizing the special interest process, the policy planning process, the candidate selection process, and the ideology process to shape and promote public policies which appeal to both their short- and long-term interests (Domhoff, 1978; Weingast, Shepsle, & Johnsen, 1981, p. 642).

One of the powerful tools of the corporate world is the ability to both create and make themselves an exception to the laws which govern society through the special interests process. Here big business promotes its short term interests by employing a world of lobbyists, Washington super-lawyers, trade associations, and members of the advisory committees of governmental departments and agencies to fight for their rights in the special interests process (Domhoff, 1978, p. 7). The result is a close intertwining of these corporate minions with governmental departments, congressional committees, and regulatory agencies; their close relationships create a world where a typical day in Washington involves industry asking the

government to protect business interests through tax breaks, favors, subsidies, wins of procedural rulings, and subversions of safety laws (Domhoff, 1978, p. 7; Kunz, 2009, p. 3).

Although the accumulation of favors is a bonus the special interest process provides, corporations tend to rely on the more solidified process of creating and changing the regulations that affect the capitalist class as a whole. Lasting elite survival is a result of a systematic perpetuation of power, and therefore the policy planning process is used to assure long term interests through input, involvement, and influence (Domhoff, 1978, p. 7). Here policy tends to fall particularly far away from its democratic theoretical intentions. Policy, defined by Halcrow, Spitze, and Smith-Allen (1995), is ―a deliberate course of action, as contrasted with a haphazard or capricious type of activity chosen and followed by a public body, private firm, family, or individual,‖ and generally implies wisdom or prudence in managing affairs through a basis in processes of thought and reason (p. 4). It should be a governmental means of solving problems at the local, state, and federal level, determined by the interests of individuals in the form of citizens, staff members of nonprofit organizations, and public officials and interest groups in the form of organizations of individuals draw together to preserve a public interest or private interests (Halcrow, Spitze, & Allen-Smith, 1995, p. 12-16). These interests are then represented and solidified into policy through the work of the Congress, the president, and the Supreme Court (Halcrow, Spitze, & Allen-Smith, 1995, p. 18).

According to Domhoff (1978), however, in this process the primary influence on the ―climate of opinion‖ in Washington are capitalist powerhouses: conglomerate corporations, industry-driven interest groups, and think tanks (p. 9). Their desires are then facilitated primarily through their ability to either comprise or hire the expertise that influences policy (Domhoff, 1978, p. 9), and they utilize resources such as funds, personnel, information, technology, products, and services to enhance the research on a given area and make their input appear as the most correct, current, and critical (Benson, 1975, p. 232; Mosco, 2009, p. 31). Today the major corporate powerhouses in Washington use their influence to enmesh themselves in critical institutions like the Council on Foreign Relations, the Committee for Economic Development, the Business Council, the American Assembly, the American Municipal League, the Environmental Protection Agency, or even the Federal Food and Drug Administration (FDA) (Domhoff, 1978, p. 8). They work with the government to design regulations or alter laws on

advisory committees, and these relationships are not only tolerated but embraced, because often the specialization required to work on specific or specialized policies requires a high level of education and skill regarding a specific subject.

This rationalized involvement between industrial informants and public service specialists is better known as the revolving door, where these experts on specific subjects move back and forth between jobs in public and the private sector. As Kaiser (2009) points out, the movement of public officials ―to corporate offices and lobbying firms that hire them for their ability to influence the people and policies they knew about or worked on as public servants‖ can be hazardous, because it often distorts ―public policy to favor special interests and the wealthy‖ (p. 1). According to Nestle (2002), ―the sharp disparity in ethical standards‖ between the private and public realm can create major implications when those in the permissive culture of Congress or the industry itself take a job in a federal regulatory agency (p. 138). The problem is that if these experts are allowed to walk back and forth between these realms so readily, they will want to maintain favor on both sides so they can keep job possibilities open, preserve close relationships, and protect the interests of those who are willing to offer them the larger salary. For instance, Michael W. Yost, a 2009 member of the Advisory Committee on Agricultural Biotechnology, formerly worked for the American Soybean industry (Organic Consumers Association, 2009). Following Kaiser‘s and Nestle‘s critical line of thought, it is difficult to say that Yost could act in the best interest of agriculture and biotechnology and provide sound and unbiased advice, especially if a former interest, such as the elimination of soybean subsidies, was compromised.

Alternatively, if corporations are unable to work directly within the policy sector, they resort to influence, and commission experts to plead their case. As Halcrow, Spitze, and Allen- Smith (1995) point out, this influence happens at every phase of the process; industry‘s ―policy research findings and educational materials and distributed at each participant level—hearings, subcommittees, committees, and executive agencies, as well as directly to the president and members of Congress‖ (p. 20). The ―sound views‖ and academic research of these experts and think tanks the public and government and media so readily rely upon are often sponsored and organized by the business community; they often influence legal terminology and other classifications in policy (Soley, 2002, p. 13). For example, Monsanto, the leading producer of

genetically modified food, utilized a fleet of ―scientific experts‖ to convince Congress and the Food and Drug Administration that genetically modified products were not different from non- genetically modified products, and therefore should not be labeled distinctly (Soley, 2002, p. 13). In these instances, the ―upper-middle class rulers become our real leaders by giving the elite the information that they use to suppress us and formulate mass opinions‖ (Domhoff, 1978, p. 10). Not only have they managed to create an economy that is deeply ingrained in the state, but they have also managed to suppress most criticisms of this neoliberal economy. With a veil of a need for deregulation and the free market, both big media and big business have managed to satisfy their interests with the support of the government (Gandy, 1992, p. 26). Business interests are not alone in this manipulation of the public sphere, and when it comes to protecting the interests of these moguls, ―the state is not an objective, unbiased observer‖ (Gandy, 1992, p. 31).

Even if politicians are able and willing to think outside the opinions profit-driven corporations commission, big business has assured its success by manipulating the candidate selection process (Domhoff, 1978, p. 7). Here the conglomerate industrial world ensures its access to public leaders by helping them win costly campaigns through both financial and physical support (Domhoff, 1978, p. 11). The voter‘s ability to determine which issues and candidates make it to election-day is replaced with the promise that compliance with the elite will reap campaign contributions and political advertising (Bagdikian, 2004, p. 210). This financial assistance can take the form of hard money funding, strictly regulated and limited donations to individual members of Congress through political action committees (PACs), or gifts legally acceptable under the guidelines of the lobbying reform act, including travel expenses and other forms of honoraria (Nestle, 2002, p. 106). Often lobbying takes place in ―gray areas‖ such as dinner parties, receptions, meetings, golf games, and weddings. In the late 1990s nearly $60 million dollars was spend on agricultural lobbying outside of tobacco related interests (Nestle, 2002, p. 102). It does not help that politicians are already likely to be part of the wealthiest 1/5 of the American population, be ideologically embedded, and are typically lawyers (Domhoff, 1978, p. 11); it tends to promote the conservative policies of deregulation and business rights preferred by the corporation (Bagdikian, 2004, p. 10). Many elections rely on what President Kennedy called ―‗serious‘ men who were expert enough to run a government‖ (Domhoff, 1978, p. 12). While the politicians engage in image-building, name-calling, horse- racing, and campaign-building, the executive officers of companies are busily running the issues

that affect citizens in a multitude of ways (Domhoff, 1978, p. 12). Additionally the ability of the top five media corporations, otherwise known as the ―big five,‖ to control these politicians has also lead to the dissolution or modification of laws restricting their media ownership, the result being that their combined control of almost 37,000 media outlets in the United States created a platform for one of the favorite tools, the ideology process (Bagdikian, 2004, p. 29).

Big media and big business do not stop their influence at the level of government, and ―the members of the ruling class work very hard at helping us (everyday citizens) to accept their view of the world‖ (Domhoff, 1978, p. 14). They utilize the ideology process to formulate, disseminate, and enforce their ideas and assumptions on a public who will in turn rationalize the policies which lead to their domination (Domhoff, 1978, p. 7). The concentrated ideals formulated in the upper echelons of the government realm are disseminated through seemingly apolitical networks like middle class discussion groups, special university and foundation programs, public relations firms, corporate financed advertising councils, books, speeches, education, and various efforts through the mass media (Domhoff, 1978, p. 14). This process also works because local elite are provided with information and legitimacy by the government, letting them function as ―opinion leaders‖ in their respective areas (Domhoff, 1978, p. 15). They use these outlets in addition to their own influential sources to promote the economic and political ideals of the elite and, as this manuscript will later show, to stifle any unfavorable ideas to the contrary.

It is also critical to consider that citizens are likely aware of some degree of the domination of the ruling classes, and indifference or acceptance of the dominant ideology is an additional factor to blame for the lack of citizen‘s movements against APD laws. Antonio Gramsci points to cultural domination as one of the primary forms of the elite classes for maintaining power. While this theory does not eliminate or ignore the idea that rule can be derived from force in the political realm or economic drives, the Gramscian concept of hegemony posits that in democratic societies, groups typically govern with a degree of consent from the people they rule (Jones, 2006, p. 3). Under this form of ideological authority, ideas such as racism can and ―need to be embedded through cultural institutions and practices that appear to be independent of politics,‖ or what Gramsci refers to as civil society (Jones, 2006, p. 7). Here, this special form of domination takes place through processes of transaction,

negotiation, and compromise between ruling and subordinate groups, creating the national- popular and common-sense ideas that guide society (Jones, 2006, p. 10). The actions that take place in politics, economics, and everyday life become in short justified through a ―coercion‖ of the public, forming a moral and intellectual consensus of the actions taking place in these realms (Jones, 2006, p. 95). Here ideological domination through cultural hegemony can be considered a far more powerful force than the direct imposition of rule. Because individual agency is willingly given up, resistance to elite power is primarily eliminated rather than repressed, thus making elite authority far more powerful and longer lasting (Jones, 2006, p. 10). The majority of citizens will not only be coerced to follow law, rules, and processes, but also consensually appreciate them through norms such as flag raising, wearing election pins, or even through discourse on the typicality and general level of acceptance of the disliked practices of politicians and corporations. The phrase ―that‘s just how it is‖ becomes common and in a way voluntarily mitigates efforts for change.

While the processes of domination that take place in both theories of legal and ideological domination propose some differentiations, it is important to consider that they are neither absolute nor entirely distinct. Society is clearly affected by the influences on the institutions citizens place trust in, as well as the ideas they utilize to make everyday decisions and to understand and support such powerful institutions. Both individual agency and a lack thereof play an important role in the creation of harms facing the food system, free speech, and the citizen-consumers of the United States. For the purpose of this manuscript, therefore, both institutional and ideological sides shall be considered, and particular attention shall be given to any and all processes that enhance media manipulation and criticisms of food. Overall, the processes which facilitate corporate control of the government and its people are the result of both physical and ideological frameworks. The private realm gains favors in the special interests process, shows favoritism through lobbying and the revolving door, manipulates the facts through its role in ―expertise,‖ and provides funding for grateful political candidates. Through their influence on public policy and politicians, big media and big business are able to concentrate their power and ensure their domination in society. In turn, they disseminate their ideals through both government and business bodies, creating a consensual rationalization of their power and policies. Those who fail to adhere to these wishes are often publicly criticized or unable to move up the corporate and political frameworks they dominate (Domhoff, 1978, p. 15).

These rationalizations of the inner workings of the legal system and media are then rationalized through the cultural hegemony formed in the civic realm, where individuals consent to their own domination as a common-sense way of life presented in the bourgeoisie‘s common-sense ideas (Jones, 2006, p. 10).

The combination of these means of capitalist influence in the public realm illustrate how the administrators of powerful agencies, institutions, and businesses ―defend their resource flow, claim new domains, resist claims advanced by less powerful agencies, and block the creation of competitive organization‖ (Benson, 1975, p. 234). With the growth of their power and monetary resources comes the ability for each firm to ensure that their domains are protected, and more importantly, that they hold power over weaker agencies (Benson, 1975, p. 234). Powerful organizations can force others to accept their practices and policies, both within their own organization and across the boundaries of other weaker organizations‘ decisions (Benson, 1975, p. 234). As McChesney (2008) points out, ―What political economy recognizes is that the policies and structures they foster, implicitly encourage certain values and discourage others, encourage certain types of content, and discourage alternatives‖ (p. 140). In short, the dissent of any force that diminishes the power or profits of big business is a punishable offense in the corporate realm, solidified and enforced by the relationships and roles implicating today‘s political economy.

2.2 Political Economy of Media: Profits Take Precedence over Principle

―If capitalism is our national religion‖ and ―consumption is its ritual sacrament‖ (Bettig & Hall, 2003, p. 80), then the mass media are undoubtedly the Holy Scripture. As Bettig and Hall (2003) point out, television, film, newspapers, and radio ―increasingly shape the realities in people‘s lives,‖ help them make sense of events, and provide a bounty of critical information to citizenry; they have increasingly overridden the traditional influences of the family, friends, and religion (p. 1). However, in regard to the dogmatic role of the media and its protection of citizen‘s interests, idealism has been overpowered by actuality, and traditional roles of the media as a guardian of the public sphere have been deeply affected by the current political economy. The roles imagined by the Constitutional forefathers have been cheapened by the preference for profits, wielding a media society deeply engrained with the needs of sales, shareholders and

superiors, and the drive to systematically support capitalist ideology. Its need for annual income yields high power, but only at the expense of profits taking precedence over principle.

Traditionally, theories of democratic publics hold expectations of the media as a watchdog of the public interest, ferreting out truth from among lies, presenting objective and informed positions on important issues, informing the public on the climate change of opinion, and through selective reporting, keeping a critical eye on the actions of those in power and those who wish to be (Bettig & Hall, 2003, p. 85; McChesney, 2008, p. 25). The media do so in several ways, primarily by creating support or opposition for political leaders, choosing whether or not to highlight the ―sins of industry,‖ and providing or not providing a voice to the public (Islam, 2002, p. 1). Theoretical expectations of the media as a guardian of democratic publics therefore all point to the ability to enhance the marketplace of ideas, promote decision-making, and concomitantly bring forth the ideas that will best aid the citizenry. As McChesney (1999) points out, ―the media plays an important, perhaps a central, role in providing the institutional basis for having an informed and participating citizenry. If this is, indeed, a democracy without citizens, the media system has much to answer for‖ (p. 2).

The facilitation of these roles, or the motivation and manner by which the media act as a watchdog, has been highly debated (McChesney, 2008, p. 25). Typically the research points to three different options (Napoli, 2001, p. 101). Under the first option, the marketplace of ideas is treated as purely democratic; its ultimate focus is citizen welfare. The media can aid in effective self governance by allowing the maximization of idea exchange, ultimately enhancing the supreme goal to protect both speakers‘ and listeners‘ rights by providing a platform for free speech and a diversity of information (Mill, 1859, p. 59-60; Napoli, 2001, p. 101). Essentially this approach embraces Mill‘s principle of truth being reached through a battle of opinions and allows a government role in the protection of the dissemination of these ideas (Napoli, 2001, p. 104). The state would in turn assure the dissemination of these ideas through protections in policy through Congress and agencies such as the FCC. Examples of these regulations can be seen in ownership restrictions on local markets or the Fairness Doctrine‘s requirements of balanced reporting regarding critical issues; they essentially act as public goods whose provision is ensured by the government.

The second option, when the marketplace of ideas is treated as purely economic, allows the media as a business to provide the most popular ideas by acting as an ambassador of the free market; its ultimate focus is consumer welfare (Napoli, 2001, p. 106). In short, allowing deregulated media to sell according to free market principles, largely uninhibited by governmental inference, will let the media function without restraint and could reflect the content that consumers wish to see. Here the invisible hand reflects the interests of consumers, letting choice affect content and the survival of the firms that produce it. It does not actively seek to achieve self governance, but rather seeks profits, consumer choice, economic efficiency, and competition (Napoli, 2001, p. 113). It is important to note that consumer interests may or may not promote the best public interest (Napoli, 2001, p. 82). While they can protect against free rider problems, typically examples of protections of the economic marketplace of ideas encompass favoring business and lessening the restrictions on cross integration of firms (Napoli, 2001, p. 112).

The third option is a combination of the two principles, allowing the marketplace of ideas to function according to its drive for both democratic and economic enhancement. As Napoli (2001) points out, communication products would be treated as goods to be bought and sold, and ultimately their exchange through competitive supply would create a multiplicity of tongues (p. 106). The media in this role can then run a highly sensitive market that will both reflect consumer preferences and enhance decision-making capabilities through choice (Napoli, 2002, p. 108). This view allows the media to act in a way that enhances some regulation and allows the public to be a citizen-consumer, where dollars or support of products create votes for the most wanted ideas, but some regulation is still allowed. An example of this would be 1980s elimination of ―Syndex‖ rules, or requirement of cable networks to not air the same programming as local stations, with the express intent to assure efficient video communications (via competition) services to citizens who rely on them for information (Napoli, 2001, p. 112).

The wavering positions over which of these options can best enhance the public sphere have tended to reflect societal concerns of the changing times. Initially, the onset of the Great Depression and World War II illustrated that ―Big Capitalism‖ needed ―Big Government‖ as a means to establish state functions in media, providing essential services such as mail and telecommunications to the public (Mosco, 2009, p. 71). With the onset of the larger markets‘

privatization, however, these services were transferred from government to business hands, and the media began to rely more on profits as a means of survival; it left increasingly fewer services subsidized or protected by the state (McChesney, 2004, p. 41; Mosco, 2009, p. 15). For the rest of the twentieth century the presence of government regulation tended to vary; but with the onset of increasing technology and the Telecommunications Act of 1996, the United States media markets were increasingly opened through state supported deregulation (Krasnow, Longley, & Terry, 1982, p. 23; Mosco, 2009, p. 15; Napoli, 2001, p. 154-155).

This movement illustrates that while the media do offer some opportunity for the exchange of ideas and debate, they have increasingly tended to fall under the second interpretation of the marketplace of ideas, expecting a lack of government intervention to yield the best possible system (McChesney, 2004, p. 49; McChesney, 2008, p. 16). Some see the privatization of media as a positive, relying on the notion that where state regulation does not dominate the market, it is unlikely to stifle free speech (Islam, 2002, p. 8); however, this overestimates the intentions of the state and media as citizen protectors rather than profiteers. It is important to remember that self governance has never been the economic approach to the marketplace of ideas‘ main concern (Napoli, 2001, p. 106). McChesney (2008) points out, ―Neoliberalism was not an effort to eliminate the state; rather it was an effort to have the state work purely in the interests of capital or the larger media corporations‖ (p. 17). The corporate media boom is indebted to the rise of this school of thought, as Neoliberalism maximized the role of markets and profit-making and minimized the role of non-market institutions (McChesney, 1999, p. 6). Neoliberal democracy is then a realm in which control and debate are relatively left out of the political sector, and ―In such a world political apathy and indifference are a quite rational choice for the bulk of citizenry, especially for those who reside below the upper and middle classes‖ (McChesney, 1999, p. 6).

As Soley (2002) points out, ―Contrary to the claims of free market advocates, deregulation and ‗privatization‘ have produced censorship,‖ heightening democracy-threatening development rather than achieving the intended goals to reduce it (p. 249). This is because just like regular markets, the media market is not free from imperfections; with the notable absence of the invisible hand, the restriction of information has ultimately impeded consumer choice (Napoli, 2001, p. 108). In the neoliberal system of today‘s economy, the media cannot subsist

exclusively on its gallant role as the shepherd of indispensable public information; rather as a private institution, it relies on the financial support of those it serves. ―For their ultimate survival the media depend on the state that regulates them, on the firms that pay to advertise through them, and on the consumers they serve,‖ and as Islam (2002) points out, ―balancing these different interest groups is a difficult task‖ (p. 1). The critical test of the media is whether ―when faced with government coercion or distortion of reality, the news media, protected by the First Amendment of the Constitution, would tell the American people the closest approach to the truth that is possible for a human institution‖ (Bagdikian, 2004, p. 75). The media as a business in the neoliberal state, however, has provided communications scholars with two major political economic criticisms of the system. First, the political economy of media looks at how ―ownership, support mechanisms (e.g. advertising) and government policies influence media behavior and content‖ (McChesney, 2000, p. 110). Second, the political economy of media analyzes the relationship of the media to the broader social structure of society, closely examining how economics affect politics and social relations (McChesney, 2000, p. 110; Mosco, 2009, p. 68). Afflicted with strenuous demands to please advertisers, maintain the interests of shareholders, and uphold elite power, the mass media of the current society have found themselves the target of such criticisms, but have done little to correct their self-interested behavior.

The effects of advertising‘s relationships to the media industry can only be described in terms of their relationship: necessary, ―symbiotic,‖ and slightly masochistic (Bettig & Hall, 2003, p. 79). Simultaneous expectations of the media to act as both a watchdog of the public interest and successful business venture have proven counterproductive, and in spite of the honest intentions of many producers, journalists, and broadcasters, the economics of the media system has rendered it democratically impotent (Bagdikian, 2004, p. 231). This is because the media sell information as a commodity, something which gains viewers‘ attention and loyalty and then turns interested audiences over to the hands of advertisers (Bettig & Hall, 2003, p. 74). The media industry‘s advertising base has necessarily created a need to please the selling atmosphere to maintain profits, and advertisers are more than willing to punish media companies whose stories to not flatter their products (Bettig & Hall, 2003, p. 5). The media take these threats seriously; they often ―edit or kill stories offensive to advertisers because media profits come from the sale of advertising, not sales of the medium to consumers‖ (McChesney, 2008, p.

271; Soley, 2002, p. 195). Newspapers and magazines only typically make about 25 percent of sales from single copy sales, and broadcast media make almost no profit from television or radio listeners (Soley, 2002, p. 195); advertising revenue, on the other hand, provides up to 80 percent for newspapers, 60 percent for magazines, and nearly 100 percent for broadcasting, allowing product producers to ―determine the structure of media industries by choosing simply where to spend their money‖ (Bagdikian, 2004, p. 230; Bettig & Hall, 2003, p. 5; McChesney, 2008, p. 235). Examples of this can be seen as far back as the 1930s; in one instance Proctor & Gamble cancelled advertising in newspapers that encouraged their readers to make homemade soap (Soley, 2002, p. 195). In another instance, illustrating that media companies repress themselves simply because of fear of advertising loss, the Duluth News Tribune not only fired a columnist who wrote an article instructing readers on how to sell their own homes, but also gave the real estate industry space to reply to the column (Soley, 2002, p. 196).

After it ensures it does not evoke offense, the media industry follows the conditions of ads by formatting media around ad space and creating content that is conductive to the ―buying mood‖ (Bagdikian, 2004, p. 241-243). The ultimate attempt is to please the ―commodity audience,‖ the group most likely to be drawn to content and find the products in the ―complementary‖ advertisements as necessary purchases (Bagdikian, 2004, p. 227), and advertisers are willing to spend large sums on this friendly and flattering environment. In 2001 advertisers spent almost $247 billion to assure content was the appropriate bait for the consumer subgroups (Meehan, 2007, p. 165), often rejecting dark content and hard hitting news because it cannot convince consumers that products can solve their personal problems. Critical and often important content has been reduced to escapism, comedy, and adventure (Bagdikian, 2004, p. 241-243). For free speech and informed positions, advertorials, self censorship, and false positivity have contributed to a rising ―supportive editorial atmosphere‖ (Steinem, 2003, p. 225) and a sinking ―news hole,‖ or place where content is allowed to remain after advertising has been satisfied (Bettig & Hall, 2003, p. 74.)

Product selling corporations have million dollar budgets to attack reporters and stories they dislike. As Bagdikian (2004) points out, ―each passing year they have yet another power: They are not only hostile to independent journalists. They are their employers‖ (p. 176). For the same reasons as advertisers, media owners place pressure on journalists to create, avoid, or

destroy content according to its ability to maintain parent profits. In the early 1990s, for instance, NBC was well known for its lack of coverage on the nuclear power program and its hazards, a move that is likely indebted to pressure from its corporate owner General Electric and its involvement in the manufacturing of such energy at the time (Soley, 2002, p. 230). However, media moguls are not the only puppeteers behind content, and the profit seeking influence over broadcast and print has increasingly been exposed to industrial peer pressure through other forms of inter-organizational ties. Frequently media companies also hold interests, either directly through their own business or indirectly through shareholders and interlocking boards of directors, that are outside of the selling of media commodities. The formation of ties is through the major media and business world‘s ―cartel-like relationship that leaves all of them alive and well‖ (Bagdikian, 2004, p. 7). Interlocking boards of directorates promote the long-term stability and goals of the ruling class as a whole, acting as sites where common political interests can be pursued, expertise can be exchanged, and favors can be traded (Bettig & Hall, 2003, p. 33).

Because the media industry has become increasingly concentrated, with five major firms operating most of the nations‘ media by 2003 (Bagdikian, 2004, p. 8), these interlocking ties have also grown and ―the boards of the nation‘s leading companies have a startling amount of overlap‖ (Krantz, 2002, p. 1). The top media companies, Time Warner, Disney, News Corporation, Viacom, and General Electric, for instance, had 141 joint ventures as of 2004, and eleven of the largest non-media companies in corporate America had at least two board members together on a different board (Bagdikian, 2004, p. 9). Essentially, the conglomerate corporate worlds have all become ―business partners with each other‖ (Bagdikian, 2004, p. 9) and will reasonably work to maintain their power and ability to trade resources. Companies working with a media owner can influence content by using common ties to ensure mutual protection. For example, a media company may have a member on its board that also serves on the board at Sea World; all future stories about Sea World could then be subject to bias, especially if Sea World through the connection would offer the other firm exclusive broadcast coverage of the park‘s events. These inter-organizational networks favor networks and their growing consolidation drowns out the diversity and authenticity of news and programming, moving our self proclaimed democratic and freedom loving society towards ―the Orwellian dystopia of a single organization controlling the circulation of information in society‖ (Leistyna, 2008, p. 3). The connected power elites‘ ―presence alone can make media executives think carefully about

running stories that may offend certain economic interests‖ (Bettig & Hall, 2003, p. 34), and this ―Control of public information by a handful of powerful global firms weakens democracy by omission of news that might interfere with media‘s maximizing their own profits‖ (Bagdikian, 2004, p. 102).

Media owned by business groups therefore will be far less likely to publish bad news about the group itself, drastically reducing the critical information content of the media (Dyck & Zingales, 2002, p. 121). Anderson (1997) adds to this idea, highlighting the ―overlap‖ between elites who control the media and the elites who preside over government bureaucracies (p. 67). While it is illegal for firms to have directors who interlock directorates with competing firms, many media companies have both ties to other non-media companies and such complex ties with other competing firms through board members ―that the law is seldom applied‖ (Bagdikian, 2004, p. 51). The inter-organizational network has become endlessly intertwined between institutions in government, media, and the big business world, and the complexity of its relationship makes it increasingly difficult for citizens to either be aware of or understand.

While advertisers, shareholders, and owners ―exert direct and indirect influences over news media content‖ in order to immediately protect products (Bettig & Hall, 2003, p. 95), one of the greatest influences they hold is a systematic protection of profits through the perpetuation of the elite capitalist ideology. As Jhally (1989) points out, the ignorance of public problems is often the result of the media fighting change by ensuring the stability of the controlling class‘ power, status, and wealth, otherwise known as the consciousness industry (p. 67-68). While class domination can be achieved by force, the consciousness industry relies on creating ideology that drives the mass populations of the working class to consent to their domination by the minority of wealthy leaders; the laborers support the current system and ―live their own domination as freedom‖ (Bettig & Hall, 2003, p. 6; Jhally, 1989, p. 67; Marx, 1852, p. 71-77). As a private institution either run by or answering to those interested in keeping ―concentrated wealth and power in their hands,‖ the media illustrate that wealth and power will act to repress and manipulate knowledge for their own good (Jhally, 1989, p. 68). Since journalists are paid by these corporate conglomerate moguls, any truth which could upset the current system of domination can become a transgression, and in turn news is affected by the protection of the elite. For example, since wars benefit incumbents in high office and the majority of the elite

agreed with conservative notions at the time, journalism criticizing or questioning the Iraq war was manipulated to look unpatriotic (Bagdikian, 2004, p. 77).

Often these omissions, manipulations, or strategic provisions of knowledge are not only used to protect, but promote the elite and the products they sell. This is facilitated through Dallas Smythe‘s second variant of critical communications theory, where the consumer is mystified and enticed to continue to be dominated through the media‘s ability to promote consumption as an ideology; they ensure the survival of the capitalist system in which people exist to spend (Jhally, 1989, p. 70). Here imagery and emotion impede rationalization, and consumers are delivered to advertisers via television, radio, news, and other media outlets. This mediated facilitation of the elite through products can be seen frequently in content: the wealthy are often portrayed as thin and beautiful; wholesome food is frequently portrayed as fancy and expensive. As Marx (1852) points out, ―it is not the consciousness of men that specifies their being, but on the contrary their social being that specifies their consciousness‖ (p. 160). As Jhally (1989) illustrates, this cycle of desiring a higher social standing perpetuates the consciousness industry and protects the power and wealth of the advertising and corporate elite by diverting, distracting, and amusing ―people away from the alienation and drudgery imposed by capitalist work relations‖ (Jhally, 1989, p. 71). In this world the elite can do no wrong, media become the new medicine man, and content becomes the mythic dogma highlighted in print, broadcast, and television that disseminates the elite‘s versions of the world, making corporations and big media heroes who rule by turning ―shrieks of private sin into hymns of public virtue‖ (Bagdikian, 2004, p. 178).

Under Gramsci‘s line of thought, this ideological domination often takes place consensually. Although groups may be aware of the disparities in their information systems, they continue to accept the situation because it is either portrayed as inevitable or the acceptable norm (Jones, 2006, p. 10). Coercion as a force does not work alone and therefore the media‘s use of the consciousness industry works as a type of consent; here citizens still follow the norms of society, believing they are the best available option (Jones, 2006, p. 84). Following this line of thought, while viewers may be aware of the inefficiencies of the media system, the lack of all other viable options may be reinforced or rationalized by hegemonic thought processes, claiming it is simply the capitalist rationale for the media to act selfishly. Because the media in particular

act as such teachers of the norms and acceptable practices in everyday life, news, popular film, and television strongly enforce ideas such as capitalism, consumerism, patriarchy, and government. The capability of media to both act as and reinforce hegemonic forces offers a powerful platform for maintaining or disseminating structures of power. The media can therefore act as both a means of revolution and counterrevolution. When ruptures in the system such as documentaries about poor food practices or newspaper articles about the food industry‘s domination of nutritional information appear, the media can also offer counter arguments that justify or excuse these unpopular practices, helping the dominated to associate the good of practices that benefits the upper class as a benefit to themselves as well (e.g., protections of state economies is a protection of each citizen in the economy). In these ways the dominated are both aware and unaware of their dominated state: they believe consensual domination is for their benefit, but ultimately are unaware of the alternatives or selfish motives of the elite for maintaining power.

The crisis of journalism lies within these lines of thought: the media as a business often cannot provide truthful or diverse ideas because they must financially support themselves and are highly influenced by the need to promote elite hegemony. As McChesney points out, ―The media system exists as it does because powerful interests have constructed it so that citizens will not be involved in the key policy decisions that have shaped it‖ (p. 15). The greatest problem facing the media today is that in order to survive as a private institution, they must cater to advertisers, corporations, and the elite who own and run these systems; the delivery of pertinent information to the public is often secondary to profit making and survival in a corporate world. Although the media appear to be controlled by the desires of the people and the government‘s attempts to enforce regulations, the reality is an ―illusion of fulfillment,‖ where the harms of the mass media and capitalist society are suppressed with a mirage of government regulation and a flak-filled concerned media (Bettig & Hall, 2003, p. 38). Self-censorship has been institutionalized, and ―it is impossible to know how many articles could not be pursued because journalists felt it could limit their careers to challenge their corporate parents,‖ their advertisers, or politicians and corporations who support the industry (Bagdikian, 2004, p. 154; Bettig and Hall, 2003, p. 30; McChesney, 2008, p. 39). Diverse and informed ranges of positions are in turn suppressed by the consciousness industry and its attempts to preserve elite power through means of ideological authoritarianism and controlling the flow of truthful information.

Complementing this problem is the notion that the majority of the American people are not entirely aware and consequently not upset over the lack of journalistic freedom. As McChesney points out (2008), perhaps the only problem that outweighs the disparity of content is that not only are viewers deeply infatuated in the current drama filled and meaningless media system, but also they fail to question its suitability in the ―development and functioning of a democratic polity‖ (p. 341). The recent problems regarding agricultural disparagement and the inability to criticize food in the media have shown that democratic questioning has not only been left out of the media, but has also been legally lobbied and regulated against (Nestle, 2002; Pollan, 2006; Schlosser, 2001). Even if the media were able to fully function according to the democratic expectations of the marketplace of ideas, the regulation of information regarding food they are presented with would leave them with little to say. They either do not know or believe that it is best that the information regarding their food has been primarily adultered or left out of the mainstream media.

2.3 Political Economy of Food: The Evolution and Ethics of “Eat More”

Over the course of the last century of food policies, research has been concerned that ―the dynamic of agricultural commodity tail appears to wag the dog of congressional food and fiber policies‖ (Porter, 1978, p. 15). As Halcrow, Spitze, and Allen-Smith (1995) point out, the purpose of policies that govern food, both agricultural and nutritional, lies in the same reasoning behind the rationale for democratic governments: we need them to enact necessary public order and improve public welfare when the private realm creates actions that are contradictory to these notions or result in conflict (p. 5). However, like the institutions of government and the media, agencies that regulate food policy are still afflicted with diet, not only as an ethical issue that regards the citizen-consumer, but also as a political and economic issue. Traditional studies of the United States political economy of food have focused on agricultural policy and international objectives, particularly the ways these policies shape the global food regime (Destler, 1979, p. 41; Halcrow, Spitze, & Allen-Smith, 1994, p. 3; Harle, 1978; Hopkins, 1978; Junker, 1979). It is quickly evident, however, that all international concerns were both the derivative of and incentive for many of the problems the United States‘ food system faces today, and the result has been shifting studies on the relationship between not only international economic food disparities, but also the ways these relationships have altered American eating (Browne, 1978;

Gardner, 1977; Halcrow, Spitze, & Allen-Smith, 1995; Nestle, 2002; Pollan, 2006 [For a complete timeline see Appendix]).

Two hundred years of agricultural history highlight agricultural policy as being wrought with highly developmental and ubiquitous protections of the state (Halcrow, Spitze, & Allen- Smith, 1995, p. 5). Initially, the government‘s interventions in the market were justified in the attempt to save the American farmer and food supply, but as many theories concerning justified intervention on the public‘s behalf have shown, business will manage to gain a piece of the governmental pie. Within a few short years protections moved beyond support of the idyllic family farm force, and instead turned to guard a much larger part of the American economy, a conglomerate force that maintained not only the interests of agriculture, but also the ever growing industry that creates food products. The movement went from protecting the single farmer to justified interventions and favors for an entire agricultural sector (Halcrow, Spitze, & Allen-Smith, 1995, p. 5). As Nestle (2002) points out, years of ―dietary guidance in the United States provides a fascinating introduction to food company attempts to compensate for the overabundance [or lack] of food products‖ and ethical challenges faced by those in power (p. 30). The history of agricultural policy, nutritional policy, and the lobbying processes behind food illustrate a selfish gene (Dawkins, 1989). They have exhibited a dominant trait of the need for profit making, and slowly bred the evolution and ethics of ―eat more‖ (Nestle, 2002, p. 36). As the history of agricultural and nutritional policy illustrate, while their evolution often diverged, it nearly always came back to complement the needs of the food producing sectors.

2.3.1 The Early Years

The USDA was initially created in 1862 with two major intentions: ensure a stable food supply and distribute dietary advice on the food supplied (Nestle, 2002, p. 33). The government‘s main intervention in the food practices of the nation during these years were minimal and mostly concerned a study of the relationship between agricultural practices and nutrition (Nestle, 2002, p. 33). More extensive interventions of politics into the agricultural- economy, however, were germinated during the late eighteen and early nineteenth centuries, during the grand movement toward big business and rising capitalist ventures (Junker, 1979, p. 52). The era positively benefitted the food industry because the factory process and onset of more efficient technology made food more plentiful, cheaper to produce, easier to keep, and

under the influence of the emerging conglomerate food chain (Junker 1979, p. 53). However, rights of citizens during this time took a back seat to capital; as Upton Sinclair illustrated in his famous 1906 novel The Jungle (1906), the mechanics of the process were far from perfect, yielding terrifying food production processes and grotesque human rights abuses. The movement toward larger industrial food practices, while they did positively create more food, ultimately wielded ―the incarnation of blind and insensate greed,‖ allowing food companies and their era of power to become ―the Great Butcher—it was the spirit of capitalism made flesh. Upon the Ocean of commerce it sailed as a pirate ship. It hoisted a black flag and declared war on civilization‖ (Sinclair, 1906, p. 326). The adulteration of common foods also became a serious concern during this era, with FDA regulations requiring strict regulation on certain foods, and several states requiring artificial butter, or ‗oleomargarine‘ be dyed pink so consumers would no longer be ―fooled‖ (Pollan, 2008, p. 34).

As Nestle (2002) points out, American industry was not the only hostage taken by this greed; nutritional policies were affected and made to be its puppet as well (p. 34). From the creation of the USDA in 1862, policies have reflected the need for Americans to eat more so that companies can sell more (Nestle, 2002, p. 34). As this manuscript will show, this avocation of ―eat more‖ can steadily be seen in increased governmental recommendations of portion sizes, calories, and specific foods. Nestle (2002) indebts the federal role of promoting food consumption to the evolution of colonial history, where traditional hunting and gathering based diets were steadily replaced thanks to increased technologies regarding food preservation, storage, and distribution that yielded an increased reliance on trade (p. 32). By the 1890s, the USDA began to study the relationship between agriculture and human nutrition, and began to list the amounts of food needed to meet the nutrient requirements of people doing varied levels of work (Nestle, 2002, p. 33). While first director of research activities W.O. Atwater found that Americans were consuming too much fat, starch, and sugar, he also believed that American men, who ―work[ed] harder‖ than European men, required more calories and protein than European nutrition guides recommended (Nestle, 2002, p. 33).

By the 1900s, leading causes of death including infectious diseases such as tuberculosis and diphtheria were found to be prevalent with the nation‘s poorer groups (Nestle, 2002, p. 31). Although some knowledge of the problem was associated with diet, little information was

offered about how these diseases could be corrected. In an attempt to improve the health of the American people, the USDA began collecting information about basic food commodities (Nestle, 2002, p. 33). In 1912, with the discovery of ―vitamins‖ came a slow unraveling of the links between disease and malnutrition, and an intensified valuing of food based upon special molecules and organic micronutrients began (Nestle, 2002, p. 33; Pollan, 2008, p. 21). By the time the 1920s rolled around, ―vitamins enjoyed a vogue among the middle class‖ and not just the lower income brackets most affected by infectious disease (Pollan, 2008, p. 21). Although these elite groups were not particularly effected by beriberi or scurvy, ―the belief took hold that these magic molecules also promoted growth in children, long life in adults,‖ and positive health in everyone (Pollan, 2008, p. 22).

The USDA jumped on the bandwagon, and taking into consideration the obsessions of the American public, they offered over 30 pamphlets by 1915 that informed ―housekeepers on the nutritive values of food, the role of specific foods in the diet, and food appropriate for young children at home or at school‖ (Nestle, 2002, p. 34). In 1917, these recommendations were solidified into the first overall set of dietary recommendations in the 14-page pamphlet, How to Select Foods (Nestle, 2002, p. 34). The document established food group formats based on nutrients and principles to govern USDA policy on dietary advice, and a grouping of foods into milk/meat, cereals, vegetables/fruits, fats/fatty foods, and sugars/sugary foods (Nestle, 2002, p. 34). It is critical to note that the document ―did not ‗recommend any special foods or combinations of foods or combinations of food,‖ allowing a ―healthy diet to be based‖ on the inclusion of all foods (Nestle, 2002, p. 34). These pamphlets were free from negative toned framing (Nitz & West, 2008, p. 229) and lacked any exclusions of eating certain unhealthy foods, such as fat and sugar (which Atwater had previously recommended eliminating from the diet) (Nestle, 2002, p. 34). Instead, following the capitalist need to promote and not reduce consumption, a positively toned frame (Nitz & West, 2008, p. 229) was utilized that encouraged the intake of recently discovered micronutrients; in turn, food producers quickly grasped onto the idea of particular foods‘ superiority in vitamin and mineral richness, successfully manipulating the nutritional concepts of health and longevity as a mere means for ―marketability‖ (Nestle, 2002, p. 35). As Nestle (2002) points out, because food was already abundant in the United States and producers were aware of this limit on marketability, the presentation of nutrients as essential by the USDA allowed food producers to ―exploit the discoveries of vitamins and

minerals to promote their products as vital for health and longevity. Because all food animals and plants contain vitamins and minerals, all could be promoted on this basis‖ (p. 34; emphasis in original). By 1923, USDA publications were emphasizing this point, positing that the abundance of food in the United States could only better contribute to the agricultural sector (Nestle, 2002, p. 34). Getting to public to ―eat more‖ now had limitless possibilities of products to incite consumption.

However, while praises of steadily eating more nutrients were rising, the agricultural economy itself burned during 1930s and the Depression. When corn prices reached almost zero, the agricultural sector, which had traditionally been run by the citizenry or the private realm, was necessarily rescued. The first major intervention of the state into agricultural economics was the emergence of farm policies and New Deal Programs, particularly the Agricultural Adjustment Act of 1933, enacted essentially to attempt to stop farmers from growing too much food (Dimitri, Effland, & Conklin, 2005; Pollan, 2006, p. 49). Storable commodities such as corn were given a target price established by the government, which would in turn allow the Commodity Credit Corporation (CCC) to give farmers loans at a preset loan rate for up to nine months (Pollan, 2006, p. 49; Schwab, 1988, p. 10). This allowed farmers to store their product and wait for the market to improve, thus allowing weak markets to be saved from becoming weaker, and the farmer to maintain profits until he could pay back the loan (Pollan, 2006, p. 49; Schwab, 1988, p. 10). If the market never picked up, farmers could elect to keep the money and repay the government with their crop, which was in turn placed in the Ever Normal Granary (Pollan, 2006, p. 49), a government sponsored storage house of unsold corn and wheat. If many farmers were unable to pay back the loans because of a particularly bad crop year, the government would simply sell the products in the Ever Normal Granary until the market bounced back (Pollan, 2006, p. 50). As Schwab (1988) points out, ―Whether this measurement specifically help[ed] small farmers has been debated because, obviously, large producers can benefit in proportion to their size,‖ and some have even argued that it encourages high production (p. 10). These assertions can be illustrated in the irrational effects of increased production in spite of falling profits in agricultural activity. ―After World War II, rising productivity, driven by the rapid adoption of mechanical and chemical technology, led to growing surpluses even as the number of farms and production agriculture‘s share of economic activity continued to decline‖ (Dimitri, Effland, & Conklin, 2005, para. 19).

In spite of the economic realities of this situation, however, it was believed that the government had successfully acted as a band-aid on the wounds inflicted by the Great Depression. Agricultural policy was also not the only force supporting the food home front, and throughout the Depression and World War II nutritional information food guides reflected attempts to maintain the agricultural economy. Food guides, for instance, were still emphasizing the need to eat larger portion sizes, but were recommending foods based on availability and the rationing of meat, sugar, butter, and canned goods (Nestle, 2002, p. 35). As Nestle (2002), points out, ―a depression era food guide, for example, explained that food selection has far- reaching implications for agriculture and producers,‖ who needed to know the dietary patterns of the nation and how consumption would rise and fall as economic situations changed (p. 35). The USDA identified the basic seven groups as essential, with several specific foods such as milk as ―Protective,‖ or rich sources of vitamins and minerals necessary to prevent deficiencies, and once again consumers were encouraged to eat more of the foods that would save the economy while avoiding those that were rationed (Nestle, 2002, p. 35; Pollan, 2008, p. 22).

During these years the USDA was not entirely without consumer concern, however. One of their greatest accomplishments was the establishment of the Food, Drug, and Cosmetic Act to require that any foods involving imitation ingredients be labeled as such (Pollan, 2008, p. 34). By 1940 the United States National Academy of Sciences also formed a committee that advised the government on nutritional problems that could potentially affect national defense, formally establishing the Food and Nutrition Board in 1941 (Nestle, 2002, p. 35). The board was primarily responsible for setting the standard Recommended Dietary Allowances (RDAs) and the recommended amounts of energy and eight nutrients the armed forces and general public should intake daily (Nestle, 2002, p. 35). Essentially these guides were created to help people determine how many calories and nutrients were needed to sustain health during desperate economic times, particularly for children.

World War II food guides in turn considered both pragmatic considerations of food availability and rising concerns over nutrient consumption (Nestle, 2002, p. 35). However, these guides‘ primary nutrition concerns appear short lived; they still highly reflected a need to support agricultural sectors. For instance, ―In 1942, federal pamphlets instructed Americans to ‗do your part in the national nutrition program‘ by eating foods from eight groups every day; four of these

groups were milk, meat, eggs, and butter—all sources of fat and cholesterol,‖ which yield only moderate amounts of nutritional value and minerals compared to say an emphasis on plant based groups (Nestle, 2002, p. 35). By the next year, the National Wartime Nutrition Guide had changed these standards again, keeping milk as a separate category, but grouping meat, fish, eggs and beans into one group (Nestle, 2002, p. 35). ―The changing number of food groups revealed a lack of coordination not only among federal agencies but also within the same agency,‖ and in the same year‘s wartime homemakers guide, meal recommendations were confusingly based on 11 food groups (Nestle, 2002, p. 36). In spite of the food scarcities, by 1946 the peacetime nutrition guide consumers were still encouraged to limit eating scarce commodities during times of crisis, but still ―eat more‖ of those that were considered plentiful (Nestle, 2002, p. 36).

2.3.2 An Unsteady Era for Agriculture

In time, industry not only bounced back but benefited from state subsidization of grain. After the 1930s and 1940s scares food companies began to merge as a rapid and rabid force throughout the 1950s and 1960s, their elimination of the independent middle tier of producers only held back by federal antitrust laws against extensive horizontal integration (Junker, 1979, p. 62). Supporters of laissez faire economics began to complain about the favored protection of just one market sector, particularly what some farmers referred to as a ―plague of cheap corn‖ (Pollan, 2006, p. 50). With the limited amount of sales allowed by the International Wheat Agreements and Marshall Plan sales to Europe shrinking, the government was becoming nervous about the large amount of agricultural surplus (Lauck, 2000, p. 69). The New Deal policies were quickly losing favor, but when Secretary of Agriculture Ezra Benson attempted to correct the situation by stopping the support of farm production, politics, economics, and largely Congress undermined this by proclaiming it would only aggravate an agricultural sector already in distress (Schwab, 1988, p. 69). For this reason, the export promotion of this ―bare shelf‖ (Hardin, 1978; p. 7) policy eventually caught on, which Schwab (1988) posits ―essentially turned into a form of state sponsored-trading, further undermining the potential for maintaining a private grain cartel‖ (p. 69).

By 1954 the Agricultural Trade Development Act, or Public Law 480, was developed; it was basically a ―free gift‖ to needy foreign countries that allowed surplus stocks to be sold internationally at low prices, and then the profits funneled back into the country for development

purposes and humanitarian aid (Hardin, 1978, p. 9; Schwab, 1988, p. 71). ―The surpluses impelled a shift in policy to embrace an idea advocated by many agricultural economists, to let prices go to the market level and use production payments to give farmers parity or whatever‖ (Hardin, 1978, p. 9). In a mere seven years agricultural exports had increased significantly, moving from $3 billion in 1953 to $5 billion in 1960 (Lauck, 2000, p. 70). Farm legislators such as George McGovern and Walter Mondale saw this as a golden opportunity for maintaining ―agripower‖ and viciously fought to keep the program in the hands of the USDA, even though others found that it really belonged in the state department (Schwab, 1988, p. 70). Cheap corn was now officially solidified into international relations.

Following the war and the end of food scarcities, notions of needing to conserve were replaced with dietary guidelines that instead actively promoted the consumption of fats, the re- introduction of sweets, and an ever-growing emphasis on the ―eat more‖ message (Nestle, 2002, p. 36). Once again nutritional policy and information reflected the interests at the hand of the state and economy; the food industry‘s harping for the government to find ways to get people to ingest ever-growing amounts of overproduced grain were aided by the USDA‘s decision to seek help in determining the nutrient needs of the country. In 1950, after comparing the RDA standards to the nutritional consumption of the majority of the population and finding that many Americans were below standard for the consumption of several critical nutrients, the decision to create a food guide was born. In an effort to achieve consensus on what these portions should be, ―the USDA invited leading nutrition authorities in government, research, and the food industry,‖ convinced that these groups would have a vital interests in any food supported by the government (Nestle, 2002, p. 36). In this guide, milk, meats, fruits and vegetables, and grain products were created as the individual food categories, and ultimately this condensed size reflected an attempt to avoid the former complexity of the basic seven and help the public to restore nutrition through a more easily navigated eating guide (Nestle, 2002, p. 36). Many food groups, such as the meat industry, felt that the portion sizes were too small for their respective products, but overall, the draft was a comparative success for industry, and the idea of supporting more ―varied‖ foods became wildly popular (Nestle, 2002, p. 37). Essentially, by grouping many foods into these four positive categories, consumers were encouraged to eat a diversity of products that could easily fall into any of these respective categories. The compilation of these standards was incorporated in 1958 into the first handbook for nutritional professionals and what

would later be a manual for the general public, better known as The Basic Four (Nestle, 2002, p. 36).

By the 1960s, vast changes were taking place in agricultural policies and politics, although there are differing opinions about the presence of the agricultural industry at the time. Farming declined, the Supreme Court nullified rural advantages in legislative apportionment, and the vested position of agriculture was considerably weakened (Hardin, 1978, p. 8). ―The agricultural political establishment, sometimes known as the ‗farm bloc,‘ was often said to be nearing extinction,‖ and for this reason farm legislation relied heavily on price supports and supply controls to ensure that farmers remained operational (Dimitri, Effland, & Conklin, 2005; Hardin, 1978, p. 8). However, the political economic ties of agriculture did not stay dormant for long, and ―its presence was still significantly felt‖ through several developments (Hardin, 1978, p. 8). First, researchers in the USDA found that agribusiness and other nonfarm interests had at the time actually expanded their investments in agriculture (Lauck, 2000, p. 33). It was the first notable governmental evidence of the corporate world‘s motivation for reaching its hand into the farm, manipulating the first step the production process. Second, the 1964 Food Stamps Act permanently assured the USDA of its ability to regulate and protect the interest of those facing food poverty (Dimitri, Effland, Conklin, 2005). Finally, the Food and Agricultural Act of 1965 created four year commodity programs of grains and cotton (Dimitri, Effland, & Conklin, 2005; Hardin, 1978, p. 8).

Agriculture and food policy were once again key government issues, but their emerging presence in the public eye made them take the heat for the nation‘s food problems rather than the honors for its success. Largely indebted to the CBS documentary Hunger in America, by the late 1960s the American public was well aware of the shocking reality that in the land of plenty many were suffering (Nestle, 2002, p. 38). Citizens began to question how in a nation with so much grain that it was necessary to send it out of the country, people were still going hungry. A report investigating the hunger and malnutrition of low income groups revealed that:

The failure of federal efforts to feed the poor cannot be divorced from our nation‘s agricultural policy, the congressional committees that dictate hunger and malnutrition in a country of abundance must be seen as consequences of a political and economic system that spends billions to remove food from the market, to limit production, to retire land

from production, to guarantee and sustain profits for large producers of basic crops. (Kramer, 1972, p. 4)

By the 1970s, the full fledged rebellion against hunger in America yielded drastic changes in the realm of political and nutrition agencies. George McGovern was elected by the Senate to the Select Committee on Nutrition and Human Needs, and for the next nine years his guidance would expand the laws of food assistance through long lasting initiatives such as the Food Stamps programs (Nestle, 2002, p. 38). ―Both the public and Congress strongly encouraged these ‗eat more‘ activities, giving the McGovern committee license to meddle in other areas of nutrition and health‖ (Nestle, 2002, p. 38). Essentially because McGovern had done such a good job at increasing consumption levels instead of asking some people to eat less so others could eat more, he was trusted to conduct whatever studies would best suit USDA and agricultural interests. McGovern began to study the effects of fat and sugar on the body, and the ―ironic‖ result of the initiatives created by the man hired to get the malnourished to ―eat more‖ was McGovern‘s public preaching of a need to eat less junk (Nestle, 2002, p. 38). During the 1969 White House Conference on Food, Nutrition and Health, McGovern discussed the nutritional deficiencies in the lower classes and the overconsumption problems facing members of the United States‘ affluent society (Nestle, 2002, p. 39).

Seeing the real malnutrition problem facing the nation, McGovern actively attempted to fight issues of diet and chronic disease. In 1977, the McGovern staff issued a report called Dietary Goals, a document calling Americans to limit their consumption of red meat and dairy products (Pollan, 2008, p. 23; ―United States Congress Senate Select Committee on Nutrition and Human Needs,‖ 1977). His ―meddling‖ in nutritional questions yielded a sharp transition from former encouragements of limitless devouring to a new public drive to ―eat less,‖ pointing out that malnutrition was not only the result of under consumption, but also overconsumption of nutrient free foods (Nestle, 2002, p. 38-40; ―United States Congress Senate Select Committee on Nutrition and Human Needs,‖ 1977). Those who formerly benefited from the overconsumption of ―unwise‖ foods such as alcohol, sugar, salt, cholesterol, and fat (Nestle, 2002, p. 39; Pollan, 2008, p. 23) were exposed, and in an unflattering series of papers, McGovern not only pointed out the nutritional disparities of the system, but also highlighted economic disparity through the industrial monopoly held over packing beef and other agricultural production processes (Lauck,

2000, p. 39). Other nutritional research organizations and associations followed suit, supporting the initiatives and bringing forth new research that highlighted the absence of disease amongst plant based diets (Lauck, 2000, p. 39; Nestle, 2002, p. 39). As Nestle (2002) points out, decades of research supporting the connection between meat, fat, and grain based diets and chronic disease had finally reached the forefront: ―‗Eat less‘ recommendations‖ had ―become inevitable‖ in an era where people were largely concerned that the nation was not eating enough.

2.3.3 The Gains of Grain

However, during the late 1970s, members of the ―unwise‖ food producers organizations, cattle ranchers, egg producers, sugar plantation owners, and the dairy industry were in all out protest and members of the committee who represented states with large meat producer constituencies insisted that the McGovern report be revised (Nestle, 2002, p. 41; Pollan, 2008, p. 23). Because McGovern‘s own state of South Dakota had many ranching constituents and members of the committee who represented states with large meat producer constituencies insisted the report be revised, McGovern backed down and admitted he wanted no part in disrupting the ―economic situations‖ of the meat industry or to engage in battles that he could not win (Nestle, 2002, p. 41). Within the same year another edition of Dietary Goals of the United States was rereleased (Nestle, 2002, p. 42; Pollan, 2008, p. 23). Although the new report still attempted to encourage healthy eating habits, it placated industry with the positively framed language that supported the government‘s agricultural friends (Nestle, 2002, p. 42; Pollan, 2008, p. 23). For example, rather than ―eat less meat‖ statements such as ―reduce consumption of meat,‖ advice was changed to ―choose meats, poultry, and fish which will reduce saturated fat intake‖ (Nestle, 2002, p. 42; ―United States Congress Senate Select Committee on Nutrition and Human Needs‖ [amended], 1977, p. 4). As Pollan (2008) points out, the language of the new report was drastically altered to no longer restrict certain foods, asking consumers to ―speak no more of food, only nutrients‖ (p. 24, emphasis in original). At the first gnarling of the agricultural industry‘s teeth McGovern had cowered down and rebuked his former distaste for poor, fat based, and unhealthy dietary practices in the United States, thus solidifying the power of the food industry to revoke health claims that worked against their products for decades to come (Pollan, 2008, p. 23).

Those who opposed this transition in Dietary Goals of the United States were quickly eliminated, including Nick Mottern, the committee staff member of the original report; when he objected to the compromises he was promptly asked to resign (Nestle, 2002, p. 42). Mottern found that when McGovern began lessening his criticisms and instead finding that fast food was acceptable and part of a balanced diet, it seemed that the inter-organizational ties and influence of the corporate world had yet again infiltrated the public interest; McGovern was ultimately attempting to back out of an unwinnable economic battle with industry (Nestle, 2002, p. 42). As Pollan (2008) points out, McGovern‘s ―linguistic capitulation did nothing‖ (p. 24) to save the blunder he against industry, and although Dietary Goals was ―issued, opposed, and revised‖ in the short time span of 1977, the impression McGovern made on industry could never be undone (Nestle, 2002, p. 40). The tactical revision to remove any notion of ―eat less‖ did little to save him from both industry‘s wrath and their influence on politics (p. 24). As quickly as this representative of the public interest was brought into politics, he found himself wishing he had revealed a little less the food industry‘s flaws, and the ―beef lobby succeeded in rusticating the three-term senator‖ (Pollan, 2008, p. 24). He was not reelected the in the 1980 election (Nestle, 2002, p. 42; Pollan, 2008, p. 24).

McGovern was not the only key player in the evolving influence of industry in the world of food policies. As Pollan (2006) points out, ―Earl ‗Rusty‘ Butz, Nixon‘s second secretary of agriculture, probably did more than any other single individual to orchestrate‖ the plague of cheap corn (p. 51). In 1972, Russia purchased 30 million tons of American grain, a sale Butz had arranged to tempt farmers away from supporting McGovern and his more transparent, less production oriented policies (Pollan, 2006, p. 51). The sale boosted crop prices to enormous heights, drawing many families back into farming and ultimately spiking the farm income, but also inflating the prices of groceries and leaving many ―housewives‖ protesting at the supermarkets (Pollan, 2006, p. 51). Because of this, the government attempted to restructure the agricultural economy to drive down prices and vastly increase outputs of American farmers (Pollan, 2006, p. 51). This was solidified by the creation of the 1973 farm bill, or Agriculture and Consumer Protection Act, which replaced the Ever Normal Granary‘s grain loan system and price supports with target prices and deficiency payments, low commodity loan rates, and a subsequent increase of producer reliance on markets to allow for free movement of commodities at world prices (Dimitri, Effland, & Conklin, 2005; Pollan, 2006, p. 51). Ultimately this was a

move by the state to enhance international grain markets, but the results actually more deeply affected the internal political economy of the food system (Browne, 1978, p. 3). For the first time since the Great Depression, farmers were encouraged to grow more and maximize yields through the relaxation of restraints on the production of corn and grain (Browne, 1978, p. 4); this directly translated to cheaper prices for agribusiness, fewer agitated farmers for political establishments to deal with, and a reengineered food system that officially became government policy (Pollan, 2006, p. 52). The floor prices of corn and grain were removed from the market, and ―instead of supporting farmers, the government was now subsidizing every bushel of corn a farmer could grow—and American farmers pushed to go flat out and grow a hell of a lot of corn‖ (Pollan, 2006, p. 53). Interestingly, during these years the only food McGovern did encourage people to ―eat more‖ of was grain based carbohydrates (Nestle, 2002, p. 40).

According to Browne (1978), whenever these types of changes have been enacted, it has been through the determination of a ―small cast of key members of Congress, United States Department of Agriculture (USDA) bureaucrats, interest group representatives, and research specialists‖ (p. 4). Studies during the late 1970s demonstrated substantial favoritism toward large progressive farmers in agricultural policy, with ―case studies demonstrating the impact that clientele relationships have on public policy in other areas‖ reported as ―too numerous to cite‖ (Meier, 1978, p. 67). Here the parallel relationship between agricultural political concerns and the ability and drive of food industry lobbyists can best be seen. In 1979, for instance, food producers objected to the USDA food guide Food because dairy and meat groups were visually placed below the vegetable, fruit, and grain groups and were close to the ―eat less‖ fat, sweets, and alcohol category; it was also one of the most popularly requested publications produced by the USDA (Nestle, 2002, p. 45-46). After that year, however, the Assistant USDA Secretary for Food and Consumer Services, Carol Tucker Foreman, and other proponents of reducing fat intake ―lost their politically appointed positions, and food producers found a more favorable reception for their complaints‖ (Nestle, 2002, p. 46). The New USDA regime neither reprinted the reports nor did they continue any publications in the series; all future reports avoided the terms ―avoid certain‖ foods and were replaced with ―avoid too much‖ (e.g. avoid fatty foods replaced with avoid too much fat) (Nestle, 2002, p. 46). As influence in agricultural lobbying increased over the years, dietary advice steadily reflects language that encourages ―eating more‖ of select foods produced by powerful groups. From the 1950s to the 1990s, for instance, as the

power of the beef lobby rose, so did the movement from recommendations of eating less to eating more. The 1958 Dietary Goals, for instance, say, ―decrease consumption of meat‖ and evolved to more consumption oriented statements such as the 1979 Dietary Goals‘ ―cut down on fatty meats,‖ and eventually turned into statements only excluding minor parts of the diet such as the 1995 Dietary Goals‘ ―choose servings of lean meats…limit intake of organ meats‖ (Nestle, 2002, p. 44). Most importantly, recommended meat portions had been increased substantially, from the USDA‘s initial recommendations of 1-2 servings per day to 2-3, advocating not only eating meat at almost every meal but also larger portions as well (Nestle, 2002, p. 44).

While the following several years reflected some attempt to savor the nutritional standards of ―eat less‖ and fight obesity through a limiting of fat and sugar, by the 1980s all nutritional agencies that had fought against industry had been merged or eliminated; for the next 16 years all restrictions on intake, particularly of meat, were unseen in dietary advice (Nestle, 2002, p. 46). During the industry-friendly era of the Reagan administration, food companies could simply complain to Congress and reports desecrating their products failed to be published (Nestle, 2002, p. 3). Agricultural policy was being highly influenced by and was reflective of the interests of major grain buyers such as Cargill and Archer Daniels Midland (ADM) (Pollan, 2006, p. 52). By the 21st century, consensus on nutritional information was increasingly compromised by wavering views on what should shape sound advice, a debate indebted to the same factor other theoretically public protection institutions, such as the legal or media system, face: a capitalist class that highly influences public perceptions and ideology.

2.3.4 Food Public Policy Determinants: Sales, Special Favors, Strategic Science, and the Citizen Consumer

As the evolution of food, agriculture, and nutrition in the United States illustrate, the food system does not survive for the sole purpose of serving the public: it is in fact a major part of industry. The politics of the food realm fall prey to the same complications faced by the political economy of the legal system or the political economy of media: profit and power. As food politics writer Marion Nestle (2002) points out, ―food companies—just like companies that sell cigarettes, pharmaceuticals, or any other commodity—routinely place the needs of stockholders over considerations of public health‖ (p. viii). In turn, this affects dietary information. While from a dietary standpoint smaller portions, low ingredient, and chemical free food make more

sense, ―from an industry standpoint… larger portions make good marketing sense,‖ particularly those that can be created with low costs (Nestle, 2002, p. 26). However, food markets are unique in that there is a natural limit on the amount of food that can be consumed, bought, and sold, as compared to another product such as clothing. As Pollan (2006) points out, ―The growth of the American food industry will always bump up against this troublesome fact: try as we might, each of us can only eat about fifteen hundred pounds of food a year,‖ and this is problematic because Wall Street and shareholders will not tolerate the ―anemic‖ 1 percent per year growth rate this market offers (p. 94). Fortunately for the food system, the historical need to keep farmers afloat and subsequent mountains of unneeded grain now have a purpose: livestock feed, corn syrup, and preservatives. By transforming grain into a means to essentially ―beef up‖ or ―complicate‖ products, producers can charge more while keeping costs in check by taking advantage of cheap corn prices the government subsidizes (Pollan, 2006, p. 95). Additional costs can also be cut by utilizing cheap processes of production, such as chemical fertilizers, additives, or genetic modifications that produce higher yields or prolong the life span of a product; for this reason, companies are more than willing to assure that these practices are legal. They go to great lengths to maintain consumer satisfaction, and one of the greatest means to do this is through an active participation in the policies affecting these products and the distribution of information about their benefits and risks.

According to Gardner (1977), the best way to look at political influence is to look at the markets in which pressure groups demand political favors and politicians supply such favors through their making of the laws and the ways these laws regulate income transfers through taxes and subsidies (p. 163). The food and agriculture industry clearly exhibit these symptoms; its case of political influence and the implications for food and nutrition have been epidemic for several reasons. First, agriculture is unique in that it is the only private industry identified by its commodities with its own cabinet-level department; it clearly enjoys an importance in the state economy and dominance in the political structure of the nation beyond other industries such as clothing or electronics (Halcrow, Spitze, & Allen-Smith, 1995, p. 21). Members of the sector and those who benefit from their profits are well aware of and take advantage of this fact. As Nestle (2002) points out, by the end of World War II, ―food producers had come to view the USDA as their department and its secretary as their spokesman‖ (p. 97). Second, members of the food and agriculture industry often stick together, keeping the power of concentration as a

means to produce massive lobbying funds and a front against opposition. ―Economic pressures force food and beverage companies to expand to tremendous size. In 2000, seven United States companies—Phillip Morris, ConAgra, Mars, IBP, Sara Lee, Heinz, and Tyson foods—ranked among the ten largest food companies in the world‖ (Nestle, 2002, p. 12). Finally, the food and agriculture industries heighten their already favorable reputation as a critical part of the system by spending millions on keeping favor with their inter-organizational ties both in Washington and in the industrial world.

Agribusiness invests large amounts of time and financial resources to make policy favor their sectors, serving their members or stockholders by publishing newsletters, sponsoring meetings, lobbying with policy makers and Congress, and contributing to political candidates and parties (Halcrow, Spitze, & Allen-Smith, 1995, p. 28). In government, corporations often yield enormous influence through donations, gifts, and job exchanges through the infamous ―revolving door‖ (Nestle, 2002, p. 99). Earl Butz, for instance, was a former employee of Ralston Purina; it is interesting that he favored the subsidization of grain after working for a company that produces animal feed that contains it (Nestle, 2002, p. 99). When food producers cannot directly influence legislation, they band together to form some of the most powerful trade associations in Washington; this includes the American Farm Bureau Federation and National Farmers Organization (NFO), The National Pork Producers Council, National Cattlemen‘s Association, and National Milk Producers‘ Federation (Halcrow, Spitze, & Allen-Smith, 1995, p. 26). These groups pursue their interests regarding policy matters ―independently and diligently‖ (Halcrow, Spitze, & Allen-Smith, 1995, p. 27), exhibiting influence by filing complaints, increasing awareness, lobbying for bills to be introduced to the legislature, or pressuring bills to be voted out (Halcrow, Spitze, & Allen-Smith, 1995, p. 36; Nestle, 2002, p. 95). They often ensure the special favors and interests they receive in Washington solely by their perseverance and size.

Food companies influence dietary advice by determining the ―truths‖ and ―scientific evidence‖ about their given products, what Nestle (2002) refers to as ―co-opting the experts‖(p. 111). Often food, supplement, and chemical companies work together to influence science and research to oppose regulations and dietary advice that could present a negative image for their produce and adversely affect sales (Nestle, 2002, p. 28). They do so by providing information

and funds to academic departments, research institutes, and professional societies; additionally they support meetings, conferences, journals, and other activities, all of which become the public‘s, the government‘s, and the media‘s major sources of evidence and information (Nestle, 2002, p. 111). Academic experts are hired as consultants or advisors for major firms, or given substantial research grants, yielding pressure on researchers to not publish unfavorable results (Nestle, 2002, p. 112). Some of the major sponsors of nutritional journals include Coca-Cola, Gerber, Nestle, Monsanto, and the Sugar Association (Nestle, 2002, p. 113). Additionally advertisers support popular as well as academic journals (Nestle, 2002, p. 113). The Journal of Nutrition, for instance, ―lists 10 food and drug companies as sustaining associates of its parent society, and the American Journal of Clinical Nutrition has 28‖ companies supporting its activities (Nestle, 2002, p. 113). A 1996 study found that nearly 30 percent of university faculty accepts industry funding (Nestle, 2002, p. 117).

The significance of the influence of the food industry on both the media and government is evident in the fact that nutritional information can often be confusing, and people rely on outside sources for explanations of how to eat. As Nestle (2002) points out, ―people are interested in nutrition and health but are confused by conflicting information,‖ (Nestle, 2002, p. 91); the average consumer likely has little understanding or evidence on the effects of nutrients, chemicals, or additives in food on his/her health or welfare. For this reason, the media and dietary agencies are heavily relied upon for such information and simple explanations of how and what to eat. The media and dietary agencies in turn rely upon science, publications, experts, and public relations representatives from food companies to provide this information, which becomes the primary means by which the food industry holds power over people‘s decisions to purchase certain food products (Nestle, 2002, p. 20). Often, research can present contradictory information, and as Nestle (2002) points out, ―the greatest beneficiary of public confusion is the food industry‖ (p. 21). The limited amount of news space left after advertising is satisfied, or news hole, does not have the time to explain the complicated issues of contradictory science (Bettig & Hall, 2003, p. 74), leaving industries to lobby for their results to reach food labels. Here the confused public will be much more likely to accept these nutritional claims at face value, treasuring the ―legitimacy‖ of government regulated information and unaware that often the truth of their food is the result of the battle over which industry could buy the most evidence in its favor (Nestle, 2002, p. 21).

A final consideration that must be given to the political economy of food is the expectations that citizens will be able to determine which products best suit them and consequently change social concerns (e.g., green products can promote environmentalism) through their farcical role as a citizen-consumer. While in theory the market should encourage citizens to consume or discontinue consumption of a product based on provided information about the product and the quality of the good, the reality of the situation is that the market is fighting hard to keep the consumer silent and spending. Johnston (2008) points to the role of the citizen-consumer as society‘s answer to diminishing public participation in an increasingly neoliberal state, but also highlights that this is in fact a completely contradictory notion (p. 245). She explains that,

At the level of culture, an ideology of consumerism emphasizes the maximization of individual choice and variety, whereas citizenship encourages the bracketing of self- interest and the restriction of choice in the interest of collective solutions to achieve social justice and ecological equality. (Johnston, 2008, p. 247)

In short, while the public is encouraged to vote with their dollars to maximize individual interest, keeping people consuming instead of allowing them to actually focus on an issue as a group mitigates the attempted goals. Industry is well aware of this, and according to Smith (1998), the productivist discourse perpetuated by industry through products and advertising begs consumers to represent themselves through their purchases (Smith, 1998, p. 5). Ultimately, any party attempting to work against this is considered a hindrance to the market because by speaking negatively about a certain product that partly encourages an obstruction in its purchase, and could ultimately discourage consumerism as a whole. Industry has a vested interest in keeping social movements from happening, particularly anything that could move beyond the realm of simply stopping one purchase but rather stopping a pattern of consumption. For example, while information about the high chemical content in one food would be negative for sales, ultimately this information is withheld because the panic it could create would lead to a greater social movement for having fewer chemicals in all food. Group efforts and rebellion against certain practices in the industrial world, such as after the Alar chemical scare, have far greater implications than sales: they harm the productivist discourse and capitalist ideology as a whole.

This illustrates that while social norms and advertising beg the citizen-consumer role to continue, they only really attempt to keep the consumer half of this entity running.

The combination of these influences and implications facing the food system has yielded a public often unable to decide which complications face its food and to know which information to trust. The major problem facing consumers today can therefore be summed through the disparity in the imperfect market (Lauck, 2000, p. 179). As Mosco (2009) points out, ―economics assumes that information flows freely to consumers who register their wants in the marketplace,‖ but this ignores the complex set of interactions between production, markets, advertisements, and desire (p. 62). Today the flow of information from the marketplace of ideas and the economic marketplace have been dammed, with many criticisms of food products and nutritional ideas left withering, hidden, and unused as a result of powerful capitalist profiteers protecting their own interests. This means that both democratically and economically the media offer a false and limited range of choice. The result of the combination of the political economy, political economy of media, and the political economy of food have created what Corbett (2006) refers to as a ―message environment,‖ more friendly to consumerism than anything that could negatively affect profits (p. 78). Political economists point to cultural imperialism as a side effect of the purposeful distribution of a certain culture or set of ideas upon another (Mosco, 2009, p. 73). The United States food economy has utilized the media to impress its consumption-oriented ideology upon the citizen-consumer, creating a ―one way flow of culture and information from center to periphery,‖ and discouraging all questioning of its products (Mosco, 2009, p. 73). The food companies in short have found a way to use the media, via advertising, reporting, and various forms of financial pressure on networks, to plant the seeds that grow the public‘s cultural perceptions of what food, healthy food, and unacceptable food practices are.

This chapter has highlighted the means by which the food system and information are being manipulated today through an increasing intertwining of the problems facing the political economy of the legal system, political economy of the media, and political economy of food. The combination has resulted in a media system both unable and unwilling to report on food issues, indebted to pressure from the legal system and its restrictions on food free speech and highly connected to the inter-organizational network that favors agricultural interests and the

industrial food system. The American public now faces not only independent resistance to its knowledge of the atrocities of the food system, but an organized front better known as the corporate media reporting on food issues. The industrial food industry‘s fear of consumer knowledge of these practices is evident in its multiple lawsuits against anyone who attempts to defy the system in a way that could allow greater consumer choice or could lead to consumer demands for changing unwanted (and likely more expensive) practices.

However, it is critical to refer back to Gramsci‘s idea of consent working more efficiently than coercion. In order for food companies and the capitalist elite to maintain this ideological hold over the citizenry, they must maintain their power without reaching a ―crisis of authority‖ (Jones, 2006, p. 96). When the ―moment of consent‖ slowly begins to evolve into a ―moment of force,‖ the enforcing group‘s rule has clearly begun to fail, and in turn they will attempt to construct a far more expansive hegemony through counter measures and a ―crisis in authority‖ (Jones, 2006, p. 96). The food industry has become the ―dangerous men of destiny,‖ the Caesars of society, meant to speak over civil society and reinforce failing ideological domination, but the direct appeals to the people to save the farmer and favor economies have slowly begun to lose their grip on society (Jones, 2006, p. 97). While these groups have trained cadres capable and complete with years of experience of reassessing power when society has tended to lose favor and consensual domination fades, the ruptures in the system are presently both inspiring and illuminating enough to evoke change and free thought. By highlighting the behavior of the ruling classes of society, the working classes can once again gain control of their food ideologies, customs, and common sense. It is critical that the anti-citizen nature of APD laws, the manipulative behavior of food, media, and legal institutions, and infringements on free speech be driven to the critical juncture that moves citizens who are currently indifferent or unmoved by what have become norms of an ―unchangeable‖ system.

Here it is critical to reconsider the current state of the American food information crisis. While there are ruptures in the system, where in spite of the fear APD laws create the media and citizens are willing and capable of criticizing unwanted practices surrounding food, these practices are limited to a small ring of intellectuals. While Gramsci acknowledges that ―all people are intellectuals,‖ only some people have the status and function necessary to incite change (Jones, 2006, p. 10). However, in the Gramscian concept of revolution, ‗organic‘

intellectuals, or the rising activist body in society, can ―work to tease out those progressive elements contained within that class‘s common sense‖ (Jones, 2006, p. 10). In short, the United States must tip the scales of intellectualism and informed citizenry towards the masses rather than the enlightened few, and only after this can the traditional ―common sense‖ practices corrupting the food system be changed for the better and/or eradicated and reinvigorated (Jones, 2006, p. 10). The intellectual playing field must be leveled so that all are aware of the inequalities in the food system, food information, and free speech as a whole. In order to do so, all barriers that prevent intellectualism from reaching those most affected by poor food practices must be eliminated, and the first step in this process is to illustrate that these problems are indebted more to inefficiencies of the legal system and a manipulation of the elite than unchangeable and inevitable side effects of capitalism.

In short, the right to have healthy and ethically produced food has been violated by the obstruction of the American consumers and citizens‘ right to be informed about and decide which products best suit these needs. People can neither vote on nor have the type of food they find best simply because information is being withheld to the point that aside from taste, there is no question over which product to choose. If people are aware of a problem and wish to expose it, they have been duly stopped by the media and governmental regulation of free speech, because when it comes to the food system of today, the truth does not make money. This manuscript will attempt to offer an incentive for resisting the dominant discourse in society, fighting against hegemonic culture, political force, and industrial manipulations of the current economic system, and returning the expected roles and benefits in society, particularly regarding food, to the interests of the many rather than the few.

CHAPTER 3 METHOD

Following the notion that history is useful to mankind because it repeats itself, the evolution of the political economy facing the legal, media, and food industry provides a useful foundation from which to analyze how the current political economy has obstructed food free speech. The culmination of the factors that afflict these three areas of the social and political realm has resulted in an ever-growing interest in industry‘s profit driven protection of eat more and retaliation against any entity or information that could halt or even retard the productivist discourse (Smith, 1998, p. 5), even if the given assertions are true. Consequential fears to speak out because of possible retaliation from media outlets or the legal system have become the clogged artery of the American public sphere, blocking the flow of crucial information and harming social welfare. This food criticism free realm is indebted to both the past and present political economy of food and media, facing pressure from profit preserving food industries, survival driven media, and legal systems attempting to promote agricultural wellbeing. While the literature argues that constitutionality is essential to rid the food system of the oppression of free speech (Akre & Wilson, 2006; Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Hansum, 2000; Lynch, 1998; Semple, 1995; Wasserman, 1999), the mechanistic shortcomings of the court cannot address the real problems a fundamentally flawed legal system and inter-organizational interests have created.

This manuscript will argue that there are two main problems in today‘s public sphere that severely mitigate free speech rights and their accompanying benefits, neither of which can be protected by merely addressing the constitutionality of APD laws. The first problem this manuscript will address is that it is not a failure of the legal system to work in the favor of the interest of the citizens it was made to protect, but a system wrought with fundamentally flawed logic and principles, making it prone to systematically fall short of its philosophical goals. The second problem this manuscript will address is that the checks and balances created to protect citizens against profit and power seeking interests have been infiltrated, both willingly and

unwillingly, inhibiting the ability of the mass media and other protective agencies to resist the collective pressure the food industry uses to stifle criticisms. This manuscript will illustrate these concepts using a chronological analysis of both the Winfrey and Akre cases, highlighting how both cases‘ manipulations of free speech are individually indebted to the fundamental flaws found in the critical legal approach and political economic critique. It will then portray how these problems are not merely coincidental, but are also systemic and create media chill. This will be done by first offering a legislative and economic mapping of the collective interests the parties involved in the Winfrey and Akre case share, as well as how the results of each case have directly inflicted media chill upon the other. Examining how the implications have affected each case will ultimately illustrate that the greatest problem facing food free speech is a fundamentally flawed legal system and an increasingly private domination of the public sphere.

3. 1 Critical Legal Studies

The literature has not considered the importance of an inherently flawed legal system, where faith in liberal legal assumptions ignores the reality of the world the legal system inhabits, one which is both unstable and riddled with corporate relationships that reach beyond consumer concern. Critical legal studies (CLS) provide a means for detecting the underlying and inherent problems in the legal system, offering explanations for why constitutional protection in Winfrey‘s and Akre‘s cases have failed to protect free speech and prevent media chill, and how such protections could cause greater infringements on rights than the ones already being enacted. This manuscript will apply the major critiques and underlying theories of CLS to confirm this position.

3.1.1 Underlying Theory

While textbook definitions of legality posit that the First Amendment‘s prohibition on abridgements of freedom of speech means that all executive actions and administrative rulings should be measured by the ―yardstick of the First Amendment,‖ the legal problems found in Winfrey‘s and Akre‘s cases illustrate that quite simply courts and laws can and do consider other concerns as primary (Pember & Calvert, 2008, p. 27). The ideal objectivism and formalism of the legal system ignore the fact that the legal system exists in a real world, where jurisdictions are enveloped by social standards, not just the decisions of judges and lawyers (Unger, 1983, p.

585). In reality, the legal system‘s efficiency and ability to achieve its fundamental goals are highly implicated by five major criticisms found in CLS: faults of the individual-collective dichotomy, linguistic construction, scientific notions, legal neutrality, and liberalism‘s self corrective measures.

3.1.2 The Individual-Collective Dichotomy

One problem in the formula for food free speech arises from the combination of two flawed ideas. First, liberal legalism holds the notion that the rights of the individual and the collective are separable, and that one must or can be protected above the other (Streeter, 1990, p. 45). CLS points out that this is flawed because individuals comprise the society they must speak in, making the rights of the autonomous speaker simply irrelevant if there are no other speakers or receivers to form a plurality of voice and robust debate that enhances democracy (Hutchinson & Monahan, 1984, p. 209; Streeter, 1990, p. 47-49). Society is necessary to reflect upon, protect, and influence the individual‘s existence, and therefore both rights must be protected. In short, there must be a balance driving citizens to have free speech or individual rights in the first place. Following this logic, if individuals exercise their rights within the collective that receives this information, individual expression is limited to that which does not majorly damage the collective interests of receivers, either ideologically or economically (Morant, 2004, p. 14), and often the law reflects this position.

The second flawed idea in the liberal legal system is that rights are separable and distinct, with collective interests clearly falling into separate categories than those of the individual; not only are the individual and collective inseparable, but their competing rights are as well. The problem reaches back to the roots of nineteenth century common law, when libel‘s basis in the protection of economic property rights set the legal blueprint for forwarding other rights, particularly free speech (Unger, 1983, p. 598). Initially the property right was issued in accordance with consolidated property, praising the ability to claim divisible portions of social capital (Unger, 1983, p. 599). As Unger (1983) points out, the property might as the model of rights was later translated to address problems concerning immunity and domination, where rights translated to absolute discretion and divisibility; ―in this zone the rightholder could avoid any tangle of claims to mutual responsibility‖ (Unger, 1983, p. 599). Most importantly, this system was committed to secluding basic economic arrangements from democratic politics

(Unger, 1983, p. 599). The property right as the supreme right only mattered most to the nineteenth century objectivist cherishing the ability of a derivation from the inherent structure of society (Unger, 1983, p. 599). However, as Hutchinson and Monahan (1984) point out, this ideal relationship of legal reasoning devoid of political dialogue has become nonexistent; ―Law is simply politics dressed in different garb; it neither operates in a historical vacuum nor does it exist independently of ideological struggles in society‖ (p. 206). When this version of objectivism began to fade and lose authority, a ―license to extrapolate from property to other rights began to take its place: the discovery of the economic and analytic arbitrariness of any firm distinction between rights over material resources and other rights‖ (Unger, 1983, p. 599). However, laws do not necessarily translate over time, and the ―immunity of autonomous rights‖ envisioned by the forefathers has taken a back seat to interests of capital (Unger, 1983, p. 600). Free speech in particular is not capable of being separated into categorical protections; two citizen‘s free speech rights or the rights of economic concerns and free speech concerns can contradict, thus necessitating the system‘s consideration of which rights are supreme, complicating whether individual or collective concerns yield the most rights.

3.1.3 Linguistic Construction

The inconsistencies in the legal system stem not only from the fact that legal terminology has changed over time and is made in a way that purposefully requires modern interpretations, but also that each judge will interpret the law differently. This analogy illustrates the nature of the second CLS criticism of liberal assumptions, that there are no neutral fixed objective forms in reality (Streeter, 1990, p. 45). Human reality is socially constructed, and as a result language, collective procedures, and scientific method are context bound and contingent, allowing them and legal interpretation to change over time (Hutchinson & Monahan, 1984, p. 214; Streeter, 1990, p. 46). While liberal assumptions posit that words are fixed by their referents, CLS argues that rather signs are arbitrary and conventional, illustrated in common law‘s reliance on terms that change with the whims of changing social tides (Streeter, 1990, p. 47). Overall, although ―legal language and expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment,‖ the reality of the lack of permanence and universality of words means that interpretation is subject to flaw or bias, and this perpetuates fears of legal indeterminacy (Streeter, 1990, p. 46).

3.1.4 Scientific Uncertainty

This fundamental and interpretive flaw in language also taints the notion of objective scientific expertise and knowledge as evidence, originally derived out of the need to present factual evidence in the absence of laws that can be governed neutrally (Streeter, 1990. p.53). However, questions arise when the decisive factors of a case contradict each other, and for these reasons, the legal system is only further complicated by attempts to use value free constructs in rulings. It attempts to do so using scientific norms and conceptions of risk to rationalize and legitimize the actions and statements of the public speaker. However, scientific norms are derived from the society that produces them, and this creates two major complications concerning risk and falsity.

Risk perception is like legal language: while often regulated by government, it also holds a highly cultural context (Herrick, 2005, p. 286). Identified and managed in social systems, the magnitude of risks relates to the quality of the social relations process, dependable on institutions and actors who ―may be inaccessible and alien to those people most at risk‖ (Herrick, 2005, p. 287). Risk is a highly interpretive notion and therefore likely to perpetuate speakers‘ uncertainty about whether their speech act falls under public concern and risk. When considering the notion that contradictory statements can amplify risk and thus perpetuate fear in society through the media, the idea of protecting against false risks becomes a particularly important economic consideration (Herrick, 2000, p. 287). Alternatively, in a society for which scientific underpinnings are required prior to the allusion of risk, ―factual statements‖ are often absent or unnoticed unless great harm has already occurred, and even then contradictory scientific evidence will prove one statement both true and false (Herrick, 2000, p. 287). The major criticism of the language surrounding science and risk is ultimately that it reflects changing social interpretation and therefore lacks stability or predictability. Additionally, evidence of both scientific underpinnings and risk can also be presented in a way that does not protect the public in a timely manner, therefore subjecting citizens to possible harm and discouraging the unveiling of truths.

3.1.5 Legal Interpretation

CLS posits that not only are there value laden definitions in law, but their existence requires that someone interpret them, and often interpreters are value laden as well. As Hutchinson and Monahan (1984) point out, ―jurisprudence seeks to resolve a set of core issues. Although these issues appear deceptively simple, their underlying complexity can make fools of the most expert‖ (p. 199). It is the human nature of judges that bring subjectivity into the legal system (Boyle, 1985, p. 692). Schauer (1978) enhances this idea, citing that ―the combination of human witnesses, jurors, judges, and lawyers with the imprecision of people made rules guarantees the uncertainty of litigation and reduces confidence in pursuing free speech‖ (p. 687). These problems are indebted to the structure of the court, expecting neutrality while creating legal standards that allow interpretation of laws that suit the social norms of changing societies across time. This process is facilitated by the use of precedents, which are often contradictory, confusing, or completely absent, necessitating judicial improvisation and only enhancing the potential of uncertain and potentially erroneous verdicts in the eyes of the speaker. Ultimately the inability of the legal system to remain perfectly neutral and its requirements of interpretations negate the stability of the legal system and the faith citizens place in their actions; without confidence that the courts will rule according to the laws that protect one‘s act, people will be likely to refrain from certain measures, particularly free speech.

3.1.6 A System Inherently in Need of Self Correction

The final CLS criticism of liberal legal assumptions is that the kinks in the legal system require liberalism to attempt to rescue itself from its own inherent flaws, necessitating the addition of regulations that further complicate this vicious cycle. According to Streeter (1990), multiple laws become contradictory, making one set of rights prove fatal to the other, and this judicial balancing or interpretation between the superior rights creates countless dilemmas (p. 55). Without a reconsideration of the fundamental problems facing the legal system, the instability of the legal system will persist.

The need to have a legal degree to understand the basic principles of the legal system perpetuates a fear of the legal process‘s expensiveness and uncertainty; it prevents the confident discussion of food issues in the media, thus making speakers highly unlikely to desire speaking

out. Companies have embraced the mechanistic shortcomings of the court and fear of the legal system this creates as a legal tactic, purposefully preventing food activists, citizens, and scientists from speaking truthfully in the public interest, perpetuating fears of injustice and expensive court costs. The use of SLAPPs, strategic lawsuits against public participation, inevitably leads to fear of legal indeterminacy and costly litigation (Ogle, 2007, p. 71). Typically those attempting to use SLAPP suits apply the benefit of contemplated conduct, in which potential benefits of actions are quantified to a certain dollar amount, weighing expected losses against gains (Schauer, 1978, p. 696). It is uncertain whether defendants can weigh the pressures of litigation against the gains of promoting their ideas, while plaintiffs have been shown to easily see the effects of media chill justifying extensive court costs (Schauer, 1978, p. 696). In cases such as Demilio v. Max, corporations have been shown to purposefully and explicitly use their mega profits to manipulate free speech, enabling them to win suits in spite of verdicts because they knew each defendant would spend ―at least $50,000.00 apiece in legal fees‖ (Trende, 2005, p. 607). This regulation under the radar performs its deadliest infringements upon speech prior to investigation or vindications in court. Speakers now not only must face the uncertainties of the legal system, but fear the manipulative and vengeful corporation, capable of maintaining litigation for months or even years, while the ordinary citizen is often unable to afford a mere month‘s court costs.

Considering the complications critical legal theory posits the legal system faces, this manuscript will therefore attempt to analyze the Akre and Winfrey cases to illustrate how through the contradictory rights of the individual-collective dichotomy the rights of certain parties were decidedly protected and favored; the ways the cases‘ legal language affected the outcomes concerning all parties; how definitions and requirements of scientific underpinnings and risk conceptions ultimately affected both speakers‘ and listeners‘ rights; how uncertainty in legal interpretation affected the confidence of the parties involved in each case to protect their rights; how both the creation of the laws that affected each party‘s case and the proposed measures that followed each case have created contradictory sets of laws that ignore the fundamental problems at hand; and ultimately how the results of the Winfrey and Akre cases have perpetuated fear of the legal system that has been purposefully used by corporations to keep food critics quiet.

3.2 Political Economy

The fundamental flaws in the legal system, however, have not been the only factors contributing to the obstruction of food free speech. An analysis of the political economy of food and media illustrates the inability of speakers to confidently discuss issues in the food system because of the intricate web of interests strung both within and between those who make the nation‘s laws, those who make the nation‘s media, and those who make the nation‘s food. This analysis will therefore provide a means of mapping the political economic ties both within and between the two cases. It will highlight inter-organizational ties and interests of the parties involved in each individual case, specifically following legal, media, and food industry connections. It will also offer an illustration of the connections between the two cases by analyzing the inter-organizational ties of the parties in Winfrey‘s and Akre‘s cases, and how consequently one case of food free speech obstruction has affected the other. The mapping of these inter-organizational networks and persistent nature of industry will ultimately highlight where these institutions have fallen short in their prospective roles. By highlighting the ways the legal system has been infiltrated by outside influence, Akre‘s and Winfrey‘s cases will illustrate yet another fear that public speakers must face when battling the legal system. By highlighting the means by which the media have been influenced by the pressures of profit making, the two cases will also illustrate how information has been inhibited and the marketplace of ideas has been overrun, leaving citizens without a ―watchdog‖ of the public interest (McChesney, 2008, p. 25), and instead a protector of the ―productivist discourse‖ (Smith, 1998, p. 5). Finally, by highlighting the means by which the food industry has pressured these two other sectors to fall short, Akre‘s and Winfrey‘s cases will illustrate how the economic free market‘s need for ―perfect information‖ that helps consumers make decisions has been reduced in the interests of keeping food processes cheap and profits high (Mosco, 2009, p. 62).

3.3 The Proposition

It is critical to consider that while the retaliation against food criticisms has caused great harms, ultimately it is the consequential fear and a lack of reporting which has caused the greatest threats to consumers. Therefore, an analysis of the political economy of food and media must be considered alongside the ways that CLS find the legal system and APD laws as latent

infringements on free speech, essentially acting as a means of regulation under the radar. These two criticisms of the institutions surrounding the public sphere are often inseparable and indistinct, with the CLS‘s underlying faults in the legal system often being highly influenced and affected by the current state of political economic relationships and their pursuits of power and wealth. In turn, the institutions of the political economy often utilize and manipulate the legal process in ways that permanently change it, thus altering the drives, capabilities, and roles of the legal, media, and food systems. Because of the close relationship between these schools of thought, this analysis will take a chronological approach, analyzing evolving complications and key players in both cases through CLS and political economy. The connections within and series of events surrounding Akre and Winfrey‘s cases exemplify the ways inherent faults in the legal system and pressures created by the current political economy combine to create a domino effect, one that topples down the promises of public sphere institutions and their theoretical roles as citizen protectors.

In the following chapters, this manuscript will first offer an analysis of the Winfrey case. It will take a critical legal approach to illustrate the underlying complications facing Texas Beef Group v. Winfrey (1998) litigation and subsequent appeals, evaluating factors that have influenced the individual-collective dichotomy, linguistic construction, scientific language, judicial interpretation, and self correcting measures. Because Texas Beef Group v. Winfrey (1998) was arguably the first major case brought forth under APD statutes, this analysis will utilize legal and corporate documents related to the creation of the initial APD statutes. For the analysis of the emergence of the APD statutes and their original drafting, this manuscript will assess the websites, annual reports, and newsletters from all involved lobbying groups and trade industry associations. In particular, information will be drawn from groups such as: the Animal Industry Foundation (AIF) and all of their listed contributors; the Advancement of Sound Science Coalition (TASSC) and all of their listed contributors and members; and members of the political community who had a direct hand in the making of the model statutes. This manuscript will analyze the legal documents and statutes in Texas APD law and both the initial Texas Beef Group v. Winfrey (1998) case and its appeal Engler, Cactus Feeders, Inc., and Cactus Growers, Inc. v. Winfrey, HARPO Productions, Inc., Lyman, and King World Productions (2000) (herein Engler v. Winfrey). Data will be drawn from sources such as the Texas statutes, the Texas Beef Group v. Winfrey (1998) court documents, and Engler v. Winfrey (2000).

This manuscript will concurrently offer an analysis of the political economy surrounding the Winfrey case, highlighting the inter-organizational ties surrounding the emergence of the APD statutes, Texas APD statutes, and the Winfrey litigation. In the collection of data for an analysis of the creation and enforcement of the Texas APD statutes information, this analysis will include information from groups such as members of the political community responsible for the adoption of Texas APD statutes and members of key lobbying groups protecting the food industry in Texas. Finally, in the collection of information and data regarding the Winfrey litigation, analysis will concern information from groups such as: groups comprising, or being represented as, the ―Texas Beef Group‖; Cactus Feeders‘ CEO Robert Engler, all significant associated groups, trade industries, and members; the political or industrial ties concerning groups involved in the litigation, primarily the defendants Oprah Winfrey and Howard Lyman, the plaintiffs ―Texas Cattle Ranchers,‖ Robert Engler, and Cactus Feeders, and Judge Mary Lou Robinson; and the major sources of influence surrounding Winfrey‘s show during the 1996 broadcast, particularly pressure regarding media ownership and advertising.

This manuscript will then offer a critical legal analysis of Akre‘s cases, both the initial ruling and the subsequent appeal (New World Communication of Tampa v. Jane Akre, 2003; Wilson & Akre v. New World Communications, 2005). It will consider the underlying problems concerning the legal documents in the cases, FCC regulations, and Whistleblower protections. This manuscript will concurrently illustrate the political economic implications facing Akre‘s two cases. To do so, it will utilize information from websites, annual reports, and press releases from the key actors in the Akre litigation and parties capable of influencing Fox and New World Communications Tampa. The data drawn from these sources will utilize information about corporations and individuals such as Monsanto, New World Communications Tampa, Fox, News Corporation, Rupert Murdoch, and significantly related advertising influences.

This manuscript will then highlight the ties between the two cases, illustrating the ability of industrial food producers to both systematically and strategically protect their interests by impeding the flow of information and food criticisms. This section will use all previous research and sources to provide a comparison of the critical legal complications surrounding each case, and address how the cases affected each other‘s legal interpretation. This manuscript will highlight the political economic ties among the Winfrey cases, APD statutes, Texas statutes, the

political economy surrounding the Akre cases, and News Corporation‘s owners‘, advertisers‘, and shareholders‘ relationships to the food system. It will then examine the influence of the two cases on consequent events related to food criticisms in Florida and Texas, both in regard to the legal system and the media.

All information and data collected will fall primarily within the time frame of the major food scares, court cases, and events surrounding APD in the United States from 1989 and the release of the Alar episode until 2005 and Akre‘s final appeal. Significant relationships will be defined according to the ability of groups to either engage in ventures resulting in monetary protections of their respective industries or favors that are mutually beneficial to the parties involved. Because of the ever-changing events and consequential lack of research surrounding specific issues in the political economy and political economy of media (McChesney, 1999, p. 9), each analysis in this manuscript will supplement research ties surrounding the two media figures‘ court cases with articles, journals, and websites that provide pertinent information. Other nontraditional sources that track the ties between industry, government, and media, such as the Corporate Watch website (2010), the Sourcewatch website (2010), the OpenSecrets website (2010) and the Govtrack.us website (2010), will be utilized to provide leads on the interorganizational ties that primary sources are lacking.

Finally, chapters four, five, and six will offer a discussion of the potential effects of not correcting the speech-stifling actions resulting from the relationships between political, media, and food groups, as well as proposing solutions for protecting both viewers and producers. By more closely evaluating the relationships both within and between the political, media, and food industry actors concerned with APD statutes and litigation, the following chapters of this manuscript will expand the research and illustrate that not only are obstructions of free speech being systematically perpetuated by a flawed legal system, but that these problems are affecting other outlets and connected to each other, largely due to the highly intertwined system of capitalist interests. Chapter six will then offer and highlight possible solutions regarding the infringement of food free speech. The first step to changing the disparities of the food system is to illustrate that there is a problem, and that this problem stems not from a mechanistic fault in constitutionality, but rather inefficiencies in the components of the legal system, and purposeful

manipulations of these shortcomings by those attempting to preserve power. This manuscript will attempt to illustrate these concepts.

CHAPTER 4 BILLS, BSE, AND BULLYING WINFREY

After years of attacking controversial subjects in her daytime TV talk show, nobody could have seen how Oprah Winfrey‘s 1996 episode ―Dangerous Food‖ would so greatly ruffle the feathers of the food industry. It seemed like just another ordinary day on the Oprah show, riling up the audience, discussing some relatively unknown social problem, and setting yet another trend for her audience of millions to appreciate according to the infamous ―O‖ factor. In reality, however, the show acted as the tipping point of industry‘s stress in the 1990s (Rampton & Stauber, 1997; Texas Beef Group v. Winfrey, 1998). The drop in cattle futures prices immediately following the April 16 episode was a mandate to industry: Winfrey was the bully against Texas agriculture, and she needed to see legal retribution. On May 28, 1996, Texas cattle ranchers had had enough and found that the best way to stop Winfrey in her tirade against important agricultural sectors was simply to bully her back (Rampton & Stauber, 1997, p. 22). She was consequently sued for $2 million in damages plus punitive fines (Rampton & Stauber, 1997, p. 22).

To the untrained eye, Winfrey‘s litigation initially appears as unproblematic and a typical legal battle between multi-million dollar interests; it even favors the plaintiff‘s arguments and need for defense. The show‘s one sided editing job, indebted to claims that the guests representing industry were ―boring‖ (Soley, 2002, p. 122), combined with the immediate drop in cattle futures prices made the plaintiff‘s pursuit of agricultural product disparagement initially appear justified. Although many claim the celebrity was facing remarkable infringements upon her rights to free speech (Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Hansum, 2000; Lynch, 1998; Semple, 1995; Wasserman, 2000), her win and consequent proclamation that ―free speech not only lives, it rocks!‖ (Katel, 1998, para. 1) showed the nation that first amendment rights was still among the top tiers of political importance in the United States, and the legal system was capable of protecting such rights.

However, when considering the somewhat contradictory justifications of both sides of the case, that the beef industry had a right to sue to protect economic interests and that Winfrey won because of her right to free speech, it becomes apparent that the litigation as a whole may have caused more problems than it appeared to have at the outset. Upon further analysis, Winfrey‘s case becomes a clear display of the ruptures and sutures of an already dysfunctional public sphere. The initiation of a movement questioning the food system and the consequent attempt to mitigate such action though legal retribution, not only in Winfrey‘s case but in the very making of the laws that allowed her to be sued, blatantly illustrates that the legal system of today has become overridden with the interests of industry. Defendants do frequently win their cases, and while this may appear as positive, it can be better compared to the necessary evils described in Gramsci‘s idea of ―passive revolution‖ (Jones, 2006, p. 97). While leaked information about the inefficiencies and unethical practices of the food system may seem like a rupture in the hegemonic discourse concerning food, in reality the focus on such small issues distracts from the larger issues that need to be fought. In the case of agricultural disparagement suits, wins for the defendants may seem to have opened up the discussion of food, but in reality, the side effects resulting from such litigation are what sutures elite power and undermines criticisms. However, while citizens find legal wins as a positive side effect of such of APD litigation, industry still finds even legal losses as a useful way to keep unknown information out of the public eye (Jones, 2006, p. 97). When citizens are no longer concerned, the process of maintaining the mystery of the food system becomes much easier.

As this manuscript will show, the critical legal criticisms and political economic factors complicating the Winfrey case are clear illustrations of attempts of the system to maintain cultural hegemony and maintain the level of intellectualism about food at a point of minimal resistance. The public has been temporarily lulled by wins in the legal system and small amounts of tolerated information about unsavory food practices. Some even find justification in the stifling of free speech regarding food, finding that informational oppressions could help the public by saving economic interest. It must be shown that through the faults in the frameworks of laws and the interests of those making the laws, the nation is in reality incurring direct violations of the rights of the public to resist practices that are not in its interest. Even if defendants are winning the battles, it is the plaintiffs, the larger industry, and the elite classes

who are enforcing the systems of food culture that mark a much larger, much more dangerous ideological war.

Following critical legal studies schools of thought, this manuscript will illustrate that neither the protection of state economies nor constitutionality are the major factors harming food criticisms. Rather than first amendment issues, APD complications primarily stem from a legal system inherently constructed in a way that does not favor free speech and has been consistently driven by the interests of industry. An application of CLS criticism to the Winfrey case exemplifies how the ―U.S. legal system has failed to produce justice,‖ not only ―because it failed to live up to its own liberal ideals, but in a sense because of those ideals,‖ (Streeter, 1990, p. 46). The greatest threat to food free speech is not that constitutionality is not being reached, but that the legal system is constructed in a way that does not facilitate what it claims to be its greatest need: justice. The problems facing the legal system, particularly the differentiation between theoretical assurances of legal liberalism and the realities enacted in litigation, can be illustrated in the ways that the Winfrey case contains both highly coerced and confusing concepts regarding interpretation, the individual-collective dichotomy, value laden language, scientific uncertainty, and a system inherently in need of self correction. Not only are these concepts confusing, but also highly laden and indebted to the interests of agri-industrial power and the states‘ favoritism of economies over citizens rights. This manuscript will illustrate these concepts through an analysis of the creation of APD and Texas statutes, the Winfrey litigation, and consequential events that followed regarding the pursuit of free speech. In order to understand Winfrey‘s case, an analysis of the creation of the statutes under which Winfrey was sued is necessary. An in depth look at how APD statutes were born and justified will in turn illustrate the long running tactical measures industry and state economies have utilized in the protection of profits. The adoption of Texas statutes, Winfrey‘s litigation, and the side effects created by these events will then offer clear examples of the criticisms of the liberal legal process and insight into the key players working to silence food free speech.

4.1 In the Beginning: Industry Created the APD Statute.

The emergence of agricultural product disparagement statutes began in May 1989, when Republican Senator of Idaho, Steve Symms, requested that the Congressional Research Service, a nonpartisan branch agency of Congress, investigate product disparagement in relation to

agricultural products (Arnold, 1990, p. 105). It was what Arnold (1990) refers to ―as a direct outgrowth of the NRDC‘s war against Alar,‖ and the first major preventative measure taken to prevent further ―media mendacity‖ against agricultural products and services (p. 105; p. 61). The result was a 19 page report by legislative attorney Henry Cohen, who promptly completed his report and returned it to Senator Symms (Cohen, 1989; Arnold, 1990, p. 105). In an era of rising food scarcities and increased concern over the safety of food practices in the United States, the CRS report to Congress stands as one of the most critical documents in the creation of APD statutes. Cohen‘s insight illustrated the difficulties plaintiffs faced in proving disparagement under the laws of the time, and consequently allowed the new laws to reflect the needs of both industries and states fearing an inability to protect themselves against profit spoiling statements. ―Nicknamed ‗banana laws‘ or ‗broccoli bills,‘‖ agricultural product disparagement laws were designed to give even more power to SLAPP suits by rewriting the rules of evidence so that the food industry would have a better chance of winning in court‖ (Rampton & Stauber, 1997, p. 141). This notion can be illustrated through an analysis of the confusing, contradictory, and industry oriented concepts outlined in Cohen‘s report and the consequential adoption of laws that contain both burdens of proof and language favoring the interests of agriculture over the public speaker.

There are several running themes in agricultural disparagement statutes initially outlined by Cohen‘s (1989) CRS report for congress. Agricultural disparagement falls under the tort of injurious falsehood, where the publishing of false information to a third party results in loss to the plaintiff (Cohen, 1989, p. iii). To recover these damages, plaintiffs must prove the defendant ―with malice and privilege,‖ meaning the statement was published based a falsehood that caused financial loss either purposefully or with the intent of protecting the public interest (Cohen, 1989, p. iii). While these state based laws are generally reviewed by courts on a case-by-case basis, they are all subject to the constraints of the United States Constitution (Cohen, 1989, p. iii). Cases where no plaintiff resides in the same state as the defendant will be fought in federal court if controversial damages are suspected to be above $50,000 (Cohen, 1989, p. 1). Under these circumstances, cases will be pursued under the statutes of the state in which the federal court sits (Cohen, 1989, p. 2).

However, these overarching themes tend to leave significant room for varying legal interpretation. Across the definitions and ranging precedents considered in defamation and disparagement, even in the original inception and drafting of such laws, APD statutes fail to provide plaintiffs and defendants with the rigorous and fixed meanings that in theory give the legal system its objective nature. Even those who have significantly contributed to the laws have agreed, openly admitting that definitions of the absolute nature of the constitution, malice, public and private figures, public and interest have been left vague and ―unsettled‖ (Cohen, 1989, p. iii).

4.1.1 Constitutional Questions of Truth: Absolutism and Abridgements.

As highlighted in the Cohen report, one of the key questions facing defamation, disparagement, and agricultural disparagement laws is whether the ability to punish speech acts is an infringement upon Constitutional rights to free expression. The debate falls back to the previously discussed debate of Meiklejohn‘s and Mill‘s ideas of whether expression should consist of truths and falsities, or merely truths that will enhance public welfare. Under Mill‘s (1859) idea, the need to have truths, falsities, and a diversity of ideas would eradicate the need for such laws, relying on the idea that silenced opinions could potentially deprive society of new ideas and ―the clearer perception and livelier impression of truth, produced by its collision with error‖ (p. 59-60). This process of active engagement encouraged opponents‘ willingness to hear and understand both sides of arguments and for the consequential conflicting doctrine to share a truth between them; essentially the public conception of truth would be the middle ground of a variety of ideas in the debate of the public sphere (Roberts, 2004, p. 72). On the contrary, Meiklejohn‘s conceptions of the truth and the absolute nature of the Constitution would abridge the ―uninhibited‖ flow of information, including disparaging statements, citing that unregulated babble could become harmful to the public interest through either the dissemination of falsities or needless information (Meiklejohn, 1948, p. 25). When the idea that ―everything worth saying shall be said‖ (p. 25) becomes the regulating force in the conception of which information should be put out into the public realm, this changes the absolutist nature of the Constitution, positing instead that free speech should be abridged because the First Amendment does not necessarily protect ―false‖ statements (Meiklejohn, 1948, p. 25).

The ideas supported in Cohen‘s CRS report to Congress seem to follow more closely with Meiklejohn‘s interpretation of free speech, in which statements in the public realm should

be restricted to information that is neither menial nor noticeably false. According to the CRS report to Congress, while all cases are subject to the confines of the First Amendment, the varying precedents used across product disparagement and defamation allow for varying protections of free speech. Cohen (1989) states:

Notwithstanding its absolute language (―no law‖), the Supreme Court has made it clear that the First Amendment is not absolute. Therefore, state common law that allows recovery for injuries caused by defamation or disparagement, although it abridges freedom of speech and the press, is not necessarily unconstitutional. (p. 4)

Cohen further supports this idea in his analysis of disparagement burdens of proof, for which plaintiffs must show that ―the defendant published a falsehood‖ (Cohen, 1989, p. 2). Disparagement laws and later agricultural product disparagement laws rest upon the idea that falsities are not acceptable and can be pursued under the current laws (Cohen, 1989, p. 2). While the Supreme Court argues that there are several constraints on the argument that the Constitution is not absolute (which will be discussed later in this manuscript), under certain interpretations of the Constitution, the CRS report to Congress illustrates that the legal system not only favors the protection of ―truths‖ in free speech over a multiplicity of ideas, but also that any speech that is protected from such abridgements must fulfill several of the courts‘ requirements.

Cohen also points out in his report that defamation cases are slightly different, because under defamation law the defendant and not the plaintiff is required to prove the truth of a statement; the statement is actually ―presumed‖ false unless it is proven otherwise (Cohen, 1989, p. 4). Under these burdens of proof, defendants must know their statement is based in some sort of scientific evidence and validity in order to know that their statement will be protected. As highlighted earlier, this notion of ―truth‖ is problematic because both risk and scientifically based evidence are still created through social constructions (Herrick, 2005, p. 286). Notions of ―true‖ and ―false‖ statements therefore become complicated because evidence is based in processes and methods created by social construction, can often be based on contradictory studies, and must be evaluated by judicial interpretation, which means neutrality in the legal process is nearly impossible (Herrick, 2005, p. 286; Schauer, 1978, p. 687; Streeter, 1990, p. 46). All of these requirements and fears of uncertain interpretation then combine to perpetuate a fear of the legal process and uncertainty over whether a statement, while it may be true, will be interpreted and

protected as such. Considering that a large portion of the public immediately interpret constitutional protections of free speech as covering the majority of speech, these requirements of both useful and true information mitigate common conceptions of First Amendment protections and only further enhance the uncertainty of the legal system.

In spite of the questionable nature of the absolutism and abridgements of free speech, by the time APD statutes were created, the food industry and makers of the laws found that truth as a burden of proof was most suitable to their interests. The Cohen report allowed future lawmakers to romp like kids in a candy store, creating speech infringing concoctions with colorful combinations of the legal system‘s laws and precedents, they worked to combine the already set ability to punish false claims with wavering pieces of the disparagement and defamation laws. For example, lawmakers were essentially able to play mix-and-match; they found it best to maintain the higher damages awarded to the plaintiff under disparagement, but also preferred to keep defamation‘s burdens of proof that are placed on the defendant, and the myriad of statutes throughout the United States reflect these preferences (Cohen, 1989; Alabama Action for Disparagement of Food Product or Commodity §§ 6-5-620 to -625, 1996; Arizona Agricultural Protection Act Rev. Stat. Ann. § 3-113, 1995; Colorado Destruction of Food Prohibited Rev. Stat. Ann. § 35-331-01, 1999; Florida Violations of Certain Commercial Restrictions Stat. Ann. § 865.065; Georgia Action for Disparagement of Perishable Food Products or Commodities Code Ann. §§ 2-16-1 to -4, 1996; Idaho Disparagement of Agricultural Food Products Code §§ 6-2001 to -2003, 1996; Louisiana Disparagement of Agricultural or Aquacultural Products Rev. Stat. Ann.§§ 4501-4504, 1996; Mississippi Disparagement of Perishable Agricultural or Aquacultural Food Product Code Ann.. §§ 69-1-251 to -257, 1994; North Dakota Civil Liability for Defamation of Agricultural Producers Cent. Code §§ 32-44-01 to -04, 1997; Ohio Disparagement of Perishable Agricultural or Aquacultural Food Product Rev. Code Ann. § 2307.81, 1996; Oklahoma Disparagement of Agricultural Food Products Stat. Ann. tit. §§ 2-3010 to -3012, 1996; South Dakota Liability for Disparagement of Agricultural Food Products Codified Laws §§ 20-10a-1 to -4, 1995; Texas False Disparagement of Perishable Food Products Civ. Prac. & Rem. Code Ann. §§ 96.001-96.004, 1996). Any hopes for citizens attempting to pursue free speech acts or criticize food products, therefore, have to consider not only that not all statements are protected by the First Amendment, but also whether their statements fulfill the requirements outlined in disparagement and defamation, illustrating how

the legal system can be highly uncertain and contextual (Streeter, 1990, p. 46). Depending on the chosen precedents utilized in each case, a statement‘s protection under the First Amendment depends on whether or not it can be defined as privileged.

4.1.2 “Privileged” Statements can be Perplexing

One of the major protections outlined by Cohen in his CRS report to Congress is that in order for disparagement to be sought and the free speech act to not be protected, plaintiffs must prove that ―the defendant was not privileged to make the statement‖ (Cohen, 1989, p. 3). As Cohen (1989) points out, in the history of common law, certain protections that allow a defendant to be punished for defamation or disparagement, and ―these grew out of a recognition that in certain circumstances the societal interest in the free flow of information is so important that allowances for mistakes must be made, even at the expense of leaving victims of defamatory speech remediless…‖ (Cohen, 1989, p. 6). These few, ―narrowly defined‖ exceptions and protections to defamatory speech include information about an issue that ―is deemed so vital‖ that it must be disseminated to the public, or in laymen‘s terms, statements made in the public interest (Cohen, 1989, p. 6). These statements will be protected ―without regard to the fault or mental state of the defendant,‖ unless it is determined that the privileged statement falls under the category of conditional privileges (Cohen, 1989, p. 6). When defendants are found to negligently publish a statement or publish the statement without the ―privilege‖ to do so, the court revokes privileges to free speech and allows the defendant to be convicted of defamation or disparagement; in short the court will ultimately determine whether the statement was in fact made in public interest or if it was made with the intention of harming the plaintiff in a way that ultimately did not protect the public interest at all (Cohen, 1989, p. 6). Typically statements that are absolutely privileged are statements made with the plaintiff‘s consent; statements ―made in judicial, legislative, executive, or administrative proceedings‖; statements made to a spouse; or statements the defendant is required by law to make (Cohen, 1989, p. 7). Statements made with conditional privileges are statements ―made to protect the defendant‘s interests‖; statements made ―in the furtherance of the interest of others‖; statements made to evaluate employees; statements made ―to protect an interest that the speaker and the recipient of the statement have in common‖; and statements ―made to public officials relevant to the discharge of their official duties in the public interest‖ (Cohen, 1989, p. 8). Disparagement alone holds an additional

standard that statements made in the comparison of producers, products, or non-market-specific, are protected (Cohen, 1989, p. 8).

While many of these concepts are relatively straightforward, several requirements for conditionally privileged statements illustrate the critical legal studies school‘s critiques of unpredictability in judicial decisions because of highly interpretable language (Streeter, 1990, p. 45). The nature of the term ―conditional‖ (Hutchinson & Monahan, 1984, p. 199) emphasizes the idea that that factors that determine verdicts in a case are meant to be analyzed and interpreted, leaving little room for fixed legal meaning (Cohen, 1989, p. 8). It is then critical to remember Schauer‘s (1978) criticism of the legal system, and the idea that ―the combination of human witnesses, jurors, judges, and lawyers with the imprecision of people made rules guarantees the uncertainty of litigation and reduces confidence in pursuing free speech‖ (p. 687). This mitigates the ability of the legal system to remain perfectly neutral, and its requirements of interpretations then further negate the stability of the legal system and the faith the citizenry place in the court. Many speakers are likely unaware of such differentiations or unable to determine whether their speech act falls within conditional privileges‘ requirement of protecting ―interests‖ (Cohen, 1989, p. 8). Without being able to determine whether the courts will rule according to the laws that protect a speech act, people will be likely to refrain from criticisms of products.

Furthermore, when privileged statements require common ―interest‖ to be displayed in order to maintain their protected status, the notion of interest becomes the decisive factor in the allowance of a select speech act. These requirements illustrate a clear favoritism of the rights of the collective over the rights of the individual, following Morant‘s (2004) notion that if individuals exercise their rights within the collective that receives this information, individual expression is limited to that which does not majorly damage the collective interests of receivers, either ideologically or economically (Morant, 2004, p. 14). Considering disparagement‘s purposeful protection of the profit making capability of producers, the disparagement standards outlined by Cohen and protection of collectives over the individual illustrate that the ―immunity of autonomous rights‖ envisioned by the forefathers has taken a back seat to interests of capital (Unger, 1983, p. 600). It is the system and not society, or the courts and not the receivers of

information, that ultimately determine which rights are supreme, complicating whether individual or collective concerns yield the most rights.

However, isolated incidents and interpretations over whether the free speech act is ―privileged‖ are not the only potential barriers to the perpetuation of food criticisms. These problems are indebted to the structure of the court, expecting neutrality while creating legal standards that allow interpretation of laws that suit the social norms of changing societies across time. These legal standards, as outlined by Cohen, are facilitated by the use of precedents, which are often contradictory, confusing, or completely absent, necessitating judicial improvisation and only enhancing the potential of uncertain and potentially erroneous verdicts in the eyes of the speaker. Many precedents used in disparagement and defamation cases require an analysis of one of most confusing and long standing arguments in the legal system: whether certain groups are private or public figures.

4.1.3 The Demarcation of Public and Private Figures

Even when public interest requirements are illustrated or fulfilled, defendants and plaintiffs still face uncertainty on whether the judge will utilize precedents that define each party as a public or private figure. For example, cases in which the defendant is defined as a private figure seeking to protect a matter of public interest ―might‖ require the plaintiff to prove actual malice (Cohen, 1989, p. iii). If the judge chooses to follow precedents such as those surrounding Curtis Publishing Co. v. Butts (1876), those defined as public official or figure plaintiffs will also be required to illustrate actual malice with reckless disregard (Cohen, 1989, p. iii). In other cases, if the judge chooses to follow Gertz v. Robert Welch Inc. (1974), a plaintiff defined as a private figure who sues a media defendant must prove fault in order to gain damages, but not necessarily malice, ―unless the state law requires showing proof of malice‖ (Cohen, 1989, p. 5).

As Cohen (1989) points out in the CRS report, one of the primary questions in APD cases is whether or not the corporation can be defined as a public or private defendant (p. 10). Dairy Stores, Inc. v. Sentinel Publishing Co. (1986) specifically protects food safety information in the media, with the court ruling that false statements made without knowledge of falsity were not grounds for disparagement, and that stories about quality or content of products were entitled to the same protections as those dealing with ―public figures‖ (Bederman, 1998; Dairy Stores Inc.

v. Sentinel Publishing Co., 1986). Bose Corporation., v. Consumers Union of the United States (1984) set the precedent that the New York Times Co. v. Sullivan standard apply to product disparagement and posited that those concerned with the reputation of a product, its makers, could be defined as ―public figures.‖ In turn, the fulfillment of public or private figure requirements for both the plaintiff and defendant lead to different requirements of proving other legal requirements. In APD cases, one of the most difficult to prove but most necessary of these is whether false statements were made intentionally, a term better known as ―malice.‖

4.1.4 Meanings of Malice

Adding to the confusion from previous requirements is the idea that not only must statements be proven as ―unprivileged‖ in order for a plaintiff to win their case, but also that depending on the state or chosen precedents these statements must be shown as ―knowingly false,‖ or made with actual malice. In short, if a statement is not found to be truthful, it must also be proven as a false statement that was knowingly made. As Cohen points out in the initial pages of the CRS report to Congress, many concepts, such as ―the meaning of malice‖ are left undefined and ―appear unsettled‖ (Cohen, 1989, p. iii). Actual malice requirements differ across Supreme Court precedents in the same ways public interests and public and private figure definitions vary, and generally, ―commentators are unable to agree on what is meant by the term‖ (Cohen, 1989, p. 8). Ultimately these definitions can range from intentionally made false statements to accidentally made false statements or statements made by a defendant without the privilege or expertise to do so (Cohen, 1989, p. 9).

The combination of malice precedents with other precedents leaves an endless array of interpretation. According to Cohen‘s explanations, while in New York Times v. Sullivan (1964) ―actual malice‖ must be proven by ―public officials‖ involving their official conduct and that there be ―convincing clarity‖ (Cohen, 1989, p. 5), definitions of convincing clarity and evidence for the purposeful dissemination of false information also differ based upon scientific conceptions of the truthfulness of a statement. New York Times v. Sullivan (1964) also established that if the statement involves a matter of ―public concern,‖ then the ―private figure‖ plaintiff must show proof of ―actual malice‖ (Cohen, 1989, p. 5), thus changing malice requirements on private figures in a case involving public concern. Dun & Bradstreet Inc. v. Greenmoss Builders Inc. (1986) determined that if the statement does not involve a matter of

public concern, the Constitution does not require ―private figures‖ to show ―actual malice‖ in order to recover damages (Cohen, 1989, p. 5); in these cases defendants shown to not be acting in the public concern are still protected if the false statement was made accidentally. However, it must be noted that this protection is only utilized if the Dun & Bradstreet Inc. v. Greenmoss Builders Inc. (1986) is utilized as precedent. Speakers still must fear the protection of statements deemed as true and the protection of statements they might accidentally falsely make because ultimately there is no way to determine if the judge will use precedents that protect the defendant‘s speech.

The previously outlined requirements in this chapter illustrate the complexity of a legal system in which disparagement, defamation, and APD statutes have virtually limitless combinations of requirements based on the highly uncertain interpretation of the judge and jury (Streeter, 1990, p. 46). Uncertainty over whether the legal system will determine whether the speaker ―purposefully‖ made a false statement, combined with whether the statement will be determined as true or false, whether the plaintiff and defendant are public or private figures, and whether the statement was made as ―privileged‖ and in the public interest, ultimately contributes to a fear of the legal process and discourages making statements criticizing food products or processes. Even industry admitted the laws were complex, confusing, and difficult to predict, but within the laws they saw the legal potential and ability to protect agribusiness over autonomous free speech (Arnold, 1990, p. 105). As a result industry and state economies quickly allowed these concepts to be manipulated and solidified into a series of laws that best suited economic interests and would preserve both profits and reputations (Arnold, 1990, p. 105).

4.2 Model APD Statutes Manifest into Law

In spite of the confusing nature of the legislation behind disparagement and defamation laws, Cohen (1989) found that ―these statements are not necessarily vague because the law of product disparagement is a matter of case law, with the outcome of any particular case depending heavily on the facts in the particular case‖ (p. 14). The report created both a positive outlook for the need of such laws and an ability for the laws to be portrayed as something other than a direct violation of free speech rights (since the legal concepts were already present), or at least agribusiness and its fans thought so. Senator Symms‘ conclusion after reviewing the report was that while the legal concepts were already present to protect the interests of the agricultural

sector, the current legislation‘s complexity was too difficult for plaintiffs to use (Arnold, 1990, p. 105). As a result he requested the Senate Legislative Counsel to draft legislation with more clearly defined means to enable food producers to recover financial losses from disparaging food statements (Arnold, 1990, p. 105), and industry was quick to support this initiative (Solely, 2002, p. 116).

Armed with the confidence that current legislation was in full support of protecting products and abridging free speech, in 1992, the same year that the Washington apple growers‘ suit was dismissed, the Animal Feed Industry Association (AFIA) hired the Washington law firm Olsson, Frank & Weeda to draft the model statutes needed to lessen producers burdens of proofs in disparagement cases (Soley, 2002, p. 116). Dennis Johnson was put in charge of producing the statutes, and claimed his work would finally protect ―small farmers and time-sensitive, perishable products‖ (Soley, 2002, p. 116). However, the adoption of these statutes clearly illustrates a need to protect more than small farmers. Rampton and Stauber (1997) point to the emergence of such statutes as indebted to the work of the agricultural force: ―In Washington, some industries and their lobbyists are recognized as relatively ‗enlightened‘ capitalists, while others are regarded as hardball players unwilling to give an inch. The agribusiness industry is one of the ‗hardball‘ players‖ (p. 138). Unger (1983) also criticizes the negative effects of collective efforts, where the individual-collective dichotomy is clearly favored via pressure from large lobbying groups, corporations, and the interest of capitalist industry as a whole (p. 660). The power of collective pressure is a visible contradiction to a legal system that is written for the ―immunity of autonomous rights‖ and individual protections (Unger, 1983, p. 660). It is critical to consider that these groups operate according to business principles and protecting the interests of profits, meaning that aside from what influences productivity in the market, ―Agribusiness leaders have no use for consumer concerns about the way their food is produced‖ (Rampton & Stauber, 1997, p. 138). In the case of the creation of APD statutes, the agribusiness rationale transcended traditional consumer concerns over health and the power of purchasing.

While Hansum (2000) argues that the state must ensure farmers are not bankrupted from sensationally unsupported statements, Bederman (1998) refers to APD protections as ―legal attempts to insulate an economic sector from criticism‖ (p. 213). According to Rampton and Stauber (1997), leadership behind APD laws‘ creation was from an economic sector, particularly

the animal products industry, lobbyists who are by no means just small farmers. The adoption of these laws was primarily driven by the Animal Industry Foundation (AIF), with trustees including a ―who‘s-who list of meat industry lobby and trade associations‖ (Rampton & Stauber, 1997, p. 142; p. 144). The original APD statutes and manuscript are indebted to the diligent work of the Ohio Farm Bureau, ―American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry Association, American Society of Animal Science, American Veal Association, National Broiler Council, National Cattlemen‘s Beef Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association and United Egg Producers‖ (Rampton & Stauber, 1997, p. 144). According to Rampton and Stauber (1997), the AIF also shared the same address, phone, and staff as the American Feed Industry Association (AFIA), groups representing over ―70 percent of the formula livestock and feed sold annually‖ (Rampton & Stauber, 1997, p. 144). The AFIA‘ web of interests over the years have included much of the food industry including groups such as Agrimerica, the Tennessee Farmers Cooperative, Triple Crown Nutrition, Quality Liquid Feeds Inc., Carnation, Cargill, Purina, and Cactus Feeders (―AFIA board of directors,‖ 2010; Rampton & Stauber, 1997, p. 144) Interestingly, Paul Engler's Cactus Feeders, one of the listed plaintiffs in the Texas Beef Group v. Winfrey (1998) case, is listed as an AIF ''Silver Supporter'' in the group's newsletter (Goetz, 1997, p. 1).

But these ties are only the surface of industrial connections that have likely affected APD statutes. As Rampton and Stauber (1997) point out on the PR Watch Web site, even these almighty and vast groups contain ―financial powerhouses‖ that support their endeavors, such as the well known Hill & Knowlton and Burson-Marsteller public relations firms that back up the AIF; this allows additional actors to become major funding sources behind the campaign for APD laws (Rampton & Stauber, 1997, p. 194). These groups independently have interesting histories and connections that illustrate suspicious connections to both the larger food industry and the specific groups that created APD statutes. For instance, as organizers of the smokers‘ rights group the National Smokers Alliance, Burson-Marsteller held ―a close relationship with cigarette maker Phillip Morris‖ during the early 1990s (―Burson-Marsteller,‖ 2010). Phillip Morris, currently known as Altria Group, purchased Kraft in 1988 for $12.9 billion, giving the company a vested interest in the making of food products (―Kraft History,‖ 2010). Considering that APD statutes were designed to typically protect the entire line of production regarding a

food product, from the agricultural industry to the product manufacturer, Kraft, with many products derived from fruits, vegetables, dairy, and meat, would have held many interests in the making of the laws. Other groups are more highly implicated to these processes through the timing of their interests rather than direct ties. An example of this would be how Monsanto is also likely to have had a large interest in the production of these laws because during the same time period (1992) they were busily introducing Posilac bovine somatropin, or BST hormones (Monsanto, 1992, p. 33). Furthermore, Monsanto had reason to worry about the profits, noting that their product continued ―to meet opposition from certain groups,‖ but would ―likely be approved in the United States‖ (Monsanto, 1992, p. 33). In 1993 their concerns over the protection of their agricultural product was solidified, and with the approval of BST hormones and sales beginning on February 4, 1994, Monsanto still expressed concern to shareholders over another year of rising ―opposition from certain groups‖ (Monsanto, 1993, p. 8; p. 29).

Yet the connections do not stop with collective efforts. Many individuals greatly contributed to the history of the APD law movement and food information during the 1990s. For example, in 1996, Nancy Glick, executive of Hill & Knowlton PR firm (a group that made a major contribution to the creation of APD laws), announced that there were no links between mad cow disease and the deadly Creutzfeldt Jacobsen disease being found in humans (Rampton & Stauber, 1997, p. 194). Interestingly Glick would fly through the revolving door throughout her career, going back and forth between her PR job with Hill & Knowlton and the defense of industry and work for the FDA as a press officer, Rudder Fin Inc. as the practice director of health and nutrition, Friends of the World Food Program, Porter Novelli as the senior vice president the Office of Consumer Affairs as a press officer, and MS&L as a senior vice president (a lobbying firm for health, pharmaceutical, and medical technology companies)(Steverson, 2005). Porter Novelli has a long history of interest with nutritional information, creating the 1979-1980 food pyramid that upset the dairy and meat industry over their respective hierarchical placements and creating the 1992 food pyramid graphic (Steverson, 2005). However, the company also has a long history with food companies as well. Former and current clients include McDonalds, the Snack Food Association, and California Almonds (Steverson, 2005). It is critical to remember that when people such as Glick issue advice on the safety of food products and move between jobs in both industry and the government, their ability to do any action, or say any criticism that could negatively affect either the industry or political sectors

they may work for, have worked for, or will work for in the future is likely to not be released in the interest of protecting interorganizational interest and favoritism. The problem is that if these ―experts‖ are allowed to walk back and forth between these realms so readily, they will want to maintain favor on both sides so they can keep job possibilities open, preserve close relationships, and protect the interests of those who are willing to offer them the larger salary. Kaiser‘s (2009) quote on the implications of political economic interest once again becomes important considering how the movement of public officials ―to corporate offices and lobbying firms that hire them for their ability to influence the people and policies they knew about or worked on as public servants‖ can be hazardous, supported with the idea that these movements can distort ―public policy to favor special interests and the wealthy‖ (p. 1). The ―sharp disparity in ethical standards‖ between private and public realms can and will create major implications, forward ―the permissive culture of Congress,‖ and allow federal regulatory agencies to be invaded by the interest of future job prospects rather than the citizens they are meant to protect (Nestle, 2002, p. 138).

The enormous size of these groups and consequential pressure they were able to utilize in the making of APD statutes highlights how the free market tendency favors wealthy individuals and groups in power rather than providing equal voice to all members of society (Hutchinson & Monahan, 1984; Morant, 2004). It allows business interests to be favored over free speech through the creation of such laws, because individual interests cannot lobby as effectively as multimillion-dollar corporations (Hansum, 2000). In the eight years following the Alar chemical scare and consequent media frenzy, it was the work of a scared food industry that encouraged 13 states to pass product disparagement laws (Rampton & Stauber, 1997, p. 141). As Goetz (1997) points out, ―The laws all share much the same language, and that's no coincidence,‖ and many states adopted their statutes based on the research provided by the Cohen report and the AFIA‘s model statutes (p. 1). This protection came at a cost to food critics, and ultimately the results of the Cohen report, AFIA model statutes, and adopted statutes would increase the ―hoops‖ speakers would have to jump through to justify their speech (Soley, 2002, p. 116).

4.3 APD Statutes are Adopted in Texas

The AFIA‘s model statute was quickly distributed to a variety of lobbying groups, such as the American Farm Bureau Federation, who in turn handed the bill over to state legislatures

that would lobby for its introduction in their respective states (Soley, 2002, p. 117). Not surprisingly, one of the first states to adopt the statutes was Idaho, complete with support from their pro-active Senator Symms (Soley, 2002, p. 117). The era had become a precautionary time for agricultural United States agricultural sectors, and as Soley (2002) points out, ―Product disparagement statutes were introduced and quickly passed in several states, including North Dakota and Texas, after mass media reports about agricultural products and practices placed agrifirms on the defensive‖ (p. 117).

4.3.1 Profit Preservation is Justified to Protect the “Public”

The adoption of Texas statutes was actually indebted to a false food scare regarding Texas fruit (Fell, 1999, p. 984). In early 1991, the United States Center for Disease Control, located in Atlanta, issued a warning that salmonella food poisoning was the result of tainted Texas cantaloupe, leading to a health advisory and cantaloupe boycott that cost Texas farmers $12 million in losses (Soley, 2002, p. 120). In reality, the salmonella turned out to be spread by food handlers and poor factory practices, pointing to the knives workers used as infected rather than the actual product (Soley, 2002, p. 120). Largely driven by the idea that disparagement protects businesses from libelous statements, the public from unreliable information, and the state from economic failure with the concomitant protection of the public considered as well (Wasserman, 1999), Texas leaders were driven to action. ―Citing cantaloupe as an example of the damaged caused to farmers by false food scares,‖ the Texas state representative Bob Turner (a Texas rancher) introduced the disparagement statutes in 1995 as House Bill 722, and was reportedly backed by many of the states agriculture and livestock groups (Soley, 2002, p. 121). As listed in the original bill proposition, these supporters at least included Ms. Kathryn Keller, of the Texas Farm Bureau (part of the American Farm Bureau who drafted the APD model statutes), Mr. Charles Carter, representing the Independent Cattlemen's Association of Texas, Mr. Ed Small, attorney, representing Texas and Southwestern Cattle Raisers Association, Mr. Ross Wilson, representing the Texas Cattle Feeders Association, and Mr. Tommy Engelke, representing the Texas Agricultural Cooperative Council (Texas C.R.H.B. 722, 1995, p. 1). The only person present to protest the bill was Mr. Reggie James, representing the Consumers Union (Texas C.R.H.B. 722, 1995, p. 1).

In the original Bill Analysis document, concern over the 1991 cantaloupe scare and consequent monetary loss and scarcities associated with the Alar controversy are used as justification for the adoption of the bill (Texas C.R.H.B. 722, 1995). The analysis states:

These cases underscore the fact that food producers in Texas are currently vulnerable to the careless or malicious use of false or misleading information. This is especially alarming when considering the short amount of time available to harvest and market perishable agricultural and aquacultural food products. Many feel that legislation is needed to ensure that claims about the health, safety and wholesomeness of Texas-grown food products are based on reasonable and reliable scientific data, not sensationalized claims made by groups or individuals seeking publicity for their agendas. (Texas C.R.H.B. 722, 1995, p. 1)

Food protections once again found themselves mirroring the need to protect state economies from uninhibited free speech. Steve Kopperud, senior vice-president of government affairs for the American Feed Industry Association (AFIA), would later compare the bill to restrictions on speech that are best for the common good, such as the inability to ―stand up in a crowded movie theater and [falsely] shout, ‗Fire!‘ without being held accountable for the results‖ (Ishmael, 1999). The ‗all the other states are doing it‘ mentality was also exhibited through a direct reference to disparagement legislation having already been passed in Louisiana, Idaho, Georgia, Colorado, Alabama, Florida and South Dakota (Texas C.R.H.B. 722, 1995). Some proponents of protecting agricultural sectors actually did disagree with the legislation, noting that the laws would be unnecessary because currently common law slander already offered such protections, just without the provision of cause of action (Texas C.R.H.B. 722, 1995). However, more serious concerns were also expressed, including the belief that ―that the bill's broad language will inhibit consumers' ability to learn about products that may be unsafe,‖ (Texas C.R.H.B. 722, 1995, p. 1). The Senate Committee Report on H.B. 722 listed nearly identical remarks (Texas S.R.H.B. 722, 1995).

Clearly these concerns were not enough to mitigate Turner‘s initiatives; in 1995 the bill was adopted, and with an absolute sense of urgency. In the enrolled version of the bill text, Section 3 clearly states, ―The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the

constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended‖ (Texas House Document, 1995, p. 1). Leaders in Texas had done what they considered a great benefit to the public good, and with their highest respect and most serious attitude toward the sanctity of the legal system, embarked on great ventures to protect its berated agricultural sectors. In an effort of efficiency relatively unknown to politics, within a matter of months a ―nearly identical bill‖ was introduced in the Texas state senate (Soley, 2002, p. 121) and passed after several amendments including the exclusion of pursuing comedians making less than $17,000 annually, statements made by those under the age of 13, statements made alluding to food sounding ―icky,‖ statements from French chefs, statements from ―chefs with French sounding accents,‖ and former presidents (Hansum, 2000, p. 261).

The final Texas statutes that were adopted were entitled ―False Disparagement of Perishable Food Products‖ and placed in Chapter 96 of the Civil Practices and Remedies Codes, making the statutes fall under liability in tort. They defined perishable food products as ―a food product that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time‖ (Texas False Disparagement of Perishable Food Products Act ch.96 § 1, 1996). This essentially allows protections to extend to producers of not only agricultural products, but also possibly products that contain agricultural products or contribute to their making, so long as they fulfill the limited span of marketability requirement. Producers of falsely disparaged products fulfilling these definitions are then capable of holding the defendant as liable if: that person publicly disseminated ―in any manner‖ information relating to the perishable product in question, the person was aware that the information was false, and the disseminated information implied the product was not safe for public consumption (Texas False Disparagement of Perishable Food Products Act ch.96 § 2, 1996). The liable defendant will then be accountable to the producer of the food product ―for damages and any other appropriate relief arising from the person's dissemination of the information‖ (Texas False Disparagement of Perishable Food Products Act ch.96 § 2, 1996), meaning in short the speaker must pay compensatory damages in the form of the plaintiff‘s resulting profit loss and court fees. Proof of the disparaging statement‘s validity is determined by the judge, who must consider ―whether the information was based on reasonable and reliable scientific inquiry, facts, or data‖ (Texas False Disparagement of Perishable Food Products Act ch.96 § 3, 1996). The law additionally protects against disparagement charges of any marketing or labeling that illustrates whether a product

was grown or produced with the aid (or lack) of certain chemicals or drugs, grown organically, or grown with (or without) the use of synthetic additives (Texas False Disparagement of Perishable Food Products Act ch.96 § 4, 1996).

4.3.2 Notions of Evidence: Isn’t Science Already Confusing Enough?

As Rampton and Stauber (1997) point out, the 1990s also found scientific support under two competing roles (p. 201) The first role is the far more popular well known role embraced by the mass media and public, where scientists act as prominent participants in the national religion, are elevated ―to the status of priests tending flock over the rest of the lowly human herd,‖ and offer more sound, rational, and objective ideas that could govern over the ―emotional politics‖ that comprise democracy and everyday life (p. 202). Alternatively, corporate boardrooms and government ministries found a second role for science, one that wavered in its popularity. According to the institutional powers of industry and government, ―Like any other employees, scientists were hired to do a job, and when they failed to do that job, they ceased to be useful‖ (Rampton & Stauber, 1997, p. 202). These competing roles created major complications for APD litigation.

4.3.2.1 CLS and contradictory evidence. Under the first of these dual roles of the scientist in society, true and false statements are often appreciated according to their scientific validity, making free speech acts reliant upon some sort of evidence for protection. Initially this idea was founded in the idea that science could provide a universal and fixed way for judges to interpret evidence in a case. However, CLS posits that science, like language, is the production of socially constructed method, procedure, and terminology, meaning that ―evidence‖ ―hide[s] under the cloak of universal neutrality‖ so it by nature requires interpretation (Streeter, 1990, p. 53). When litigation requires scientific certainty to illustrate the accuracy of a statement, this relationship becomes particularly dangerous in terms of consumer safety.

In Texas, defendants must be shown to have knowingly committed a false statement against a product (Hagy, 1998). Liability requires the person disseminate information relating to a perishable food product to the public, and that he/she knows the information is false (Texas False Disparagement of Perishable Food Products Act ch.96 § 2, 1996). Actual malice and the ability to prosecute is therefore based on whether the defendant knows the information is false, a

notion privy to interpretation. In Texas, statutes require that the false information implies the product is unsafe for consumption, and the person who is liable will consequently be responsible for damages and relief resulting from his/her dissemination of the ―false‖ information (Texas False Disparagement of Perishable Food Products Act ch.96 § 2, 1996). Juries will consider whether the information is false, considering whether it is based upon ―reasonable scientific inquiry, facts, or data‖ (ch.96 § 3).

However, scientific evidence is often contradictory, making neutrality of decisions impossible because courts must choose which scientific evidence appears the most valid. It can hardly be argued that constitutionality can be protected when the government determines which falsities are allowable in media expression based on such irresolute concepts.5 Bederman (1998) argues that because of this relationship, scientific uncertainty over food safety and risk should be construed in favor of openness and free speech, but results of unnecessarily perpetuated risk and consequent panic must also be considered, thus creating a circular problem in the scientific favoritism of the court. This uncertainty is also faced by food activists and public speakers, who when faced with a myriad of scientific evidence to support their cause, cannot be sure which report the courts will favor. As Rampton & Stauber (1997), point out, ―the problem, of course, is that no one except God can consistently and correctly distinguish between ‗correct‘ and ‗incorrect‖ views‘ (p. 141), a problem that potentially leads speakers to believe it is better to just not speak out, an injunction on free speech perpetuated by the mechanisms of the court that is supposed to protect it.

A final critical consideration is that most APD lawsuits can be pursued when a statement either disseminates or implies potentially false information about a product. If statements are to be protected, they require that the defendants prove their speech act is based in some sort of scientific evidence, facts, or data (Soley, 2002, p. 119). This can be seen in the Texas APD codes, which state ―the information states or implies that the perishable food product is not safe for consumption by the public‖ (Texas False Disparagement of Perishable Food Products Act ch.96. § 2, 1996).

4.3.2.2 Junk science, lobbying, and legislative interests. However, science‘s confusion does not stop with its uncertainty in the legal system. Within everyday society and the creation of laws and statutes the second role of the scientist must be considered: here industry only finds

the scientist useful so long as evidence suits its interest, and when this scientific support stops so does the support of science. While the Texas legislature made it clear that their interest largely rested in the protection of their own state‘s interests, the language of the Texas laws is a convincing and significant illustration of how the larger industry not only helped advance the laws, but was also responsible for scientific conceptions of evidence. As Goetz (1997) points out, corporations have been largely able to discredit food safety activism by ―discrediting the research behind food safety as unsound or ‗junk‘ science‖ (p. 1). They became advocates of ''Sound science,'' or irrefutable facts, ―as determined by industry (or ABC News's John Stossel)‖ (Goetz, 1997, p. 1). The creation of such standards created ―a level of proof‖ that pesticide firms and agribusiness were able to put into the food disparagement laws through the AFIA‘s model statute (Goetz, 1997, p. 1). In turn, these standards were translated to the Texas law, which once again provides that the validity of a statement must be measured against the standard of ―whether the information was based on reasonable and reliable scientific inquiry, facts, or data‖ (Texas False Disparagement of Perishable Food Products Act ch.96 § 3, 1996).

Standards such as these are boastfully advocated by Steven Milloy, the executive director of The Advancement of Sound Science Coalition (TASSC), an active believer that ―organic foods are no safer than conventional foods‖ and a "leading debunker" of global warming according to Rolling Stone magazine (―Junk Science Can Hit Your Pocketbook,‖ 2010; ―Steven J. Milloy,‖ 2010). His group actively attempts to discredit ―junk science‖ in sources such as The New England Journal of Medicine and other supporters of environmental, health, and food safety movements (Goetz, 1997, p. 1). Milloy does, however, find that Johns Hopkins and its research, the home base of his later education, frequently fits his exclusive evaluations and standards (―Steven J. Milloy,‖ 2010). According to his Web site, Junkscience.com- All the Junk that‘s Fit to Debunk, Milloy‘s major concerns are that hidden agendas are determined by the use of science; here ―the MEDIA may use junk science for sensational headlines and programming‖ and ―SOCIAL ACTIVISTS, such as the ‗food police,‘ environmental extremists, and gun-control advocates, may use junk science to achieve social and political change‖ (―Junk Science?‖, 2010).

However Milloy‘s self-portrayal as a raging anti-environmentalist and extremist should not be ignored in light of his powers of industrial and legislative influence. He may potentially be a key player in the evolution of food crises during the 1990s and hushed food criticisms

enacted by industry during this time period. During the 1990s, Milloy worked for the headquarters of APCO Worldwide, a Washington, D.C., public relations firm better known for its work as the major tobacco industry‘s law-firm (―APCO Worldwide,‖ 2010; Goetz, 1997, p. 1; ―Steve Milloy‖ Sourcewatch, 2010). Phillip Morris hired APCO to create the front group TASSC in 1993 (―APCO Worldwide,‖ 2010). In the same time span, Burson-Marsteller (financer of the model APD statutes) held ―a close relationship with cigarette maker Phillip Morris‖ (―Burson-Marsteller,‖ 2010, para. 7), just one year after APD statutes were being created, and two years before APD statutes were adopted in Texas in 1995. The group is maintained by industrial and not consumer support, with support coming from companies like Procter & Gamble, Exxon, Dow Chemical, and Phillip Morris (Goetz, 1997, p. 1). Milloy also is a long-time columnist for FoxNews.com and a co-founder of the Free Enterprise Action Fund, a corporate group representing a wide range of industrial interests (―Steven Milloy,‖ 2010). Considering the timing of the laws and Milloy‘s close association with groups tied to APD lobbying and statute modeling, the influence on Texas statutes in particular reflect the interests of the groups associated with Milloy and their perspectives on the need to discredit ―junk science.‖ This language can be seen in other corporate documents such as Phillip Morris‘ ―Washington Outlook for 1994‖ which asked for increased movements toward ―sound science‖ legislation to improve EPA risk assessment of Phillip Morris products (Linehan, 1993, pp. 5-6). Interestingly, this document also proposed amendments to nutritional labeling be limited to labels and not advertising (p. 8), and that rBGH labeling not be required because of ―potential adverse economic consequences‖; Kraft General Foods (KGF) highlighted this initiative as especially necessary in light of how ―The campaign against BST, led by Jeremy Rifkin of the foundation on Economic Trends, has worked hard to establish a distorted consumer view‖ (p. 9). Phillip Morris owned KGF at the time (Linehan, 1993, p. 10). Monsanto also noted the potential of BST and milk labeling in several state legislatures as something ―which could affect future sales,‖ and still noted ―opposition [of BST] by from certain groups‖ (Monsanto, 1994, p. 35).

4.4 Goliath v. Goliath: Big Industry Fights Big Media in the court room.

The movement to quickly adopt APD laws also highly reflects the stress industry faced at the time. In spite of the tomfoolery surrounding the creation of APD statutes, by the 1990s the cattle industry was becoming seriously involved in the dissemination of information regarding

their products. Ronald Duchin, a representative of the public relations firm Mongoven, Biscoe, and Duchin, warned the National Cattlemen‘s Association of an impending storm, as rising interests from groups such as churches, activists, and small famers were growing into a great force that could play against the cattle industry during the mad cow disease scares (Rampton & Stauber, 1997, p. 145). True to its history, industry ensured its voice amongst the emerging mad cow disease experts by placing several representatives into the USDA‘s mad cow task force, renamed the ―Scrapie/BSE Consultants Group,‖ (Rampton & Stauber, 1997, p. 147). These figures included John Adams, a representative of the National Milk Producers Federation, Tom Cook from the National Cattlemen‘s Association, and even the American Sheep Industry Associations‘ Paul Rodgers (Rampton & Stauber, 1997, p. 147). Additionally, the USDA official in charge of the scrapie program at the Animal and Plant Health Inspection Service (APHIS), Dr. Linda Detwiler, and Don Franco of the National Renderers Association were shortly added (Rampton & Stauber, 1997, p. 147). According to Rampton and Stauber (1997), ―The group‘s membership was now industry-dominated, without even token representation by a consumer organization. None of the meetings were publicized, and for all practical purposes took place in secret‖ (p. 147).

For the most part the practices and participation of industry in public health sectors such as the USDA allowed relatively few criticisms of BSE to reach the public, and indebted to this major public relations effort of the major industry, until the mid 1990s, the media exhibited relatively few criticisms of feed practices across the United States (Rampton & Stauber, 1997, p. 197). The major exception to this was the 1996 Winfrey show, where guest Howard Lyman made reference to the poor feeding practices surrounding animal-protein based feed of beef and other animals (Rampton & Stauber, 1997, p. 197). However, as Rampton and Stauber (1997) point out, ―industry‘s ‗food disparagement‘ lawsuit quickly drove her‖ and others ―into silence‖ (p. 197).

On April 16, 1996, Oprah Winfrey aired her show on the atrocities facing the food system in a segment entitled, ―Dangerous Food,‖ illustrating the cannibalistic feeding conditions facing factory farmed cattle, the horrors of Mad Cow Disease or Bovine Spongiform Encepilepothy (BSE), and the consequent effects this infected beef had on humans in the form of Cruetzfeldt-Jakob disease (CJD) (Baldauf, 1998, para. 8; Soley, 2002, p. 121; Verhovek, 1998).

Her guests would include former cattle rancher turned activist leader of the Humane Society‘s Eating with a Consciousness Campaign Howard Lyman, Dr. Gary Weber from the National Cattlemen‘s Beef Association, and Dr. Will Heuston of the United States Department of Agriculture (Texas Beef Group v. Winfrey, 1998, p. 880). Over the course of the show, Lyman asserted the need for mandatory bans on ruminant-to-ruminant feeding, Winfrey swore, ―it has just stopped me cold from eating another burger,‖ and Weber and Hueston vigorously denied any cases of BSE in the United States to that point (Texas Beef Group v. Winfrey, 1998, p. 880). There was no mention of Texas cattle ranchers, Texas beef, or any of the plaintiffs (Texas Beef Group v. Winfrey, 1998, p. 880). In the long run, however, the plaintiffs in the Texas Beef Group v. Winfrey (1998) case would claim that the ―Dangerous Food‖ show was ―nothing more than a scary story, falsely suggesting that U.S. beef is highly dangerous because of Mad Cow Disease and that a horrible epidemic worse than Aids could occur from eating U.S. Beef,‖ pointing to Lyman as ―nothing more than a vegetarian activist and lobbyist with an agenda to wipe out the U.S. beef industry,‖ and HARPO (Winfrey‘s production company) as malicious editors who kept ―much of the scientific evidence‖ and the majority of Hueston and Weber‘s defenses out of the public eye (Texas Beef Group v. Winfrey, 1998, p. 880). The immediate crash of cattle futures prices the day following the show did little to refute their claims (Baldauf, 1998, para. 8; Verhovek, 1998).

True to the nature of Bettig and Hall‘s (2003) assertion that industry gets back at the media when it is critical of products (p. 5), ― in the days following the original show, the beef industry had retaliated by pulling $600,000 in network advertising‖ (Rampton & Stauber, 1997, p. 21). Simultaneous expectations of the media to act as both a watchdog of the public interest and successful business venture have proven counterproductive, and in spite of the honest intentions of many producers, journalists, and broadcasters, the economics of the media system has rendered it democratically impotent (Bagdikian, 2004, p. 231). This is because the media sell information as a commodity, something which gains viewers‘ attention and loyalty and then turns interested audiences over to the hands of advertisers (Bettig & Hall, 2003, p. 74). The media industry‘s advertising base has necessarily created a need to please the selling atmosphere to maintain profits, and advertisers are more than willing to punish media companies whose stories to not flatter their products (Bettig & Hall, 2003, p. 5). A week later, Winfrey, like many media outlets facing pressure from displeased advertisers, ―took these threats seriously‖ and

invited Dr. Weber and another cattle rancher back on the show to refute the ―Dangerous Food‖ broadcast, assuring viewers of the safety of the United States cattle market; but this did little to return the market to its previous levels (McChesney, 2008, p. 271; Rampton & Stauber, 1997, p. 21; Soley, 2002, p. 195). As a result, the media giant was sued for more than $12 million on the grounds of agricultural disparagement, and the United States‘ food free speech found its first major battle with free enterprise (Verhovek, 1998, para. 5). On May 26, 1996, Winfrey was sued, and it took until February 26, 1998, interestingly the same year Cargill began a joint venture with Monsanto, for the courts to make a decision (Monsanto, 1998, p. 21; Rampton & Stauber, 1997, p. 22; Texas Beef Group v. Winfrey, 1998). The major vested interests of meat and milk were on parallel pilgrimages to protect their products from the profit diminishing perils of agricultural criticisms.

4.4.1 Who Could Have Determined How Winfrey Would be Sued?

In the pursuit of free speech, speakers cannot determine whether judges will rightly consider all the terms presented in a case, making uncertainty in the application of the law perpetuate fears of erroneous verdicts. The result has been a ―departure from the utopian legal system,‖ as the uncertainty surrounding value laden interpretation makes individuals fear punishments of the law in spite of the lawful nature of their behavior (Schauer, 1978, p. 694). A crucial point to consider in agricultural disparagement cases is that typically statements that are protected, privileged, or found to be made in the public interest are those made where the public speaker and the recipient have an interest in common (Cohen, 1989, p. 6). As shown earlier, these definitions are all highly context bound and contingent, leaving the speaker with endless questions of whether his/her act would be protected prior to its dissemination.

The Winfrey case illustrates how the use of multiple vague precedents without fixed or specific meanings and the structure of the legal system require high levels of interpretation. For example, because Winfrey is not a Texas citizen, she was sued in federal court under Texas‘s disparagement statutes. There was a lack of APD precedents within state, federal, and Supreme Court cases, so the court looked to a mix of other disparagement cases and cross applied different precedents in accordance with Texas laws. The combination of these precedents and concepts illustrate how the fear of the legal system is perpetuated throughout Winfrey‘s case, and

how ultimately even though she did win, the litigation itself created the greatest harms to free speech through its high levels of unpredictability and cost.

4.4.2 Winfrey as a Public Protector?

The first major confusion in the Winfrey litigation was whether or not the issue at hand was an issue worthy of warranting concern and necessitating the dissemination of such information as a matter of public interest. Judge Mary Lou Robinson stated in her consideration of whether the questioned speech acts were warranted based on whether giving out the information would create risk to the public and act against common interests:

Any consideration of the cause of action here is governed by the First Amendment to the United States Constitution and the decisions of the courts concerning what is required to pass constitutional muster. We consider this case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 1964 "Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., …The trial court is to determine whether the speech at issue in a case can "be fairly characterized as constituting speech on a matter of public concern" before further analyzing allegations of unconstitutional restrictions on speech. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). (Texas Beef Group v. Winfrey, 1998, p. 862)

Because judicial interpretation reflects changing social tides, the notion of public concern was ultimately determined by social risk conceptions. Navigating whether the episode fell under the plaintiff‘s contentions of a radical activist‘s ―scary story‖ or the defendant‘s proclamation of ―Dangerous Food‖ required the legal system to consider whether the show had enough scientific underpinnings to accurately portray risk and fulfill the speech acts requirement of addressing public concern (Texas Beef Group v. Winfrey, 1998, pp. 860-862). This is problematic because risk perception is like legal language: while definitions are regulated by government, in reality they hold a highly cultural context, are identified and managed in social systems, and relate to the quality of the social relations process (Herrick, 2005). In conceptions of risk, information‘s

value is determined largely through scientific evidence, created not only by institutions and actors who ―may be inaccessible and alien to those people most at risk‖ (Herrick, 2005, p. 287), but also a society in which scientific underpinnings are required prior to the allusion of risk. Here ―factual statements‖ are often absent or unnoticed unless great harm has already occurred, and even then contradictory scientific evidence will prove one statement both true and false (p. 287). This in short exposes speakers to confusion as to whether their speech act contains enough scientific evidence to warrant concern, and the public to information in an untimely manner.

While Judge Robinson did rule the matter was of critical importance, citing ―Statements of fact and opinion on the issue of whether the feeding practices of American cattlemen on or before April 16, 1996, contributed to a danger that BSE or the deadly and incurable new variant CJD could occur in the United States, cannot be considered as anything other than a matter of legitimate public concern‖ (Texas Beef Group v. Winfrey, 1998, p. 863), she could have ruled conversely based upon a dismissal of risk, a topic often brought up regarding concerns over releasing genetically modified organism information (Herrick, 2000). When considering that contradictory statements can amplify risk and thus perpetuate fear through the media, the idea of protecting against false risks becomes a particularly important economic consideration. If risk is determined by already defined harms, robust debate could have come too late if people had already died from eating bad beef.

4.4.3 How Many Cattle Ranchers Does it Take to Sue Oprah?

Texas Beef Group v. Winfrey (1998) initially appears to facilitate the needs of protecting several farmers from libelous statements, as Winfrey made a ―harmful‖ statement and consequently ranchers‘ businesses were negatively affected (Morant, 2004). However, considering concepts previously discussed in this manuscript, Winfrey‘s litigation appears indebted to the protection of an entire industry and laws that arose from collective pressure (Boyle, 1985; Morant, 2004). The changes in agricultural disparagement laws leading up to the Winfrey case allowed not only agribusiness groups to sue, but larger trade associations as well (Soley, 2002, p. 119). Winfrey was by no means sued by a few farmers trying to make ends meet. The original suit was conducted by a group of plaintiffs listing Texas Beef Group, Perryton Feeders, Inc., Maltese Cross Cattle Company, Bravo Cattle Company, Alpha 3 Cattle Company, Paul F. Engler, Cactus Feeders, Inc., Cactus Growers Inc., and Dripping Springs

Cattle Company (Texas Beef Group v. Winfrey, 1998). The defendants, Oprah Winfrey, HARPO Productions Inc., and Howard Lyman, numbered a sparse three in comparison (Texas Beef Group v. Winfrey, 1998).

The second criticism of the individual-collective dichotomy can be seen in the way Judge Robinson interpreted the importance of the speech act according to the rights of receivers above the interests of individual speakers. Judge Robinson proclaimed, ―It would be difficult to conceive of any topic of discussion that could be of greater concern and interest to all Americans than the safety of the food that they eat‖ (Texas Beef Group v. Winfrey, 1998, p. 862). The judge weighed the case according to the New York Times Co. v. Sullivan (1964) precedent, citing "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,‖ and arguing that speech regarding public issues was deserving of the highest protections (Texas Beef Group v. Winfrey, 1998, p. 862). However, this is hindered by the notion of defining public interest, in which the expression of an idea must fit societal constructions of ―need to know.‖ Free speech statements with defamatory claims toward food are only given constitutional protection based on whether the matter is an issue of ―public concern‖ (Dun & Bradstreet Inc. v. Greenmoss Builders Inc, 1985). Democracy requires the participation of individuals to maximize participation in discourse on ―issues critical to the body politic‖ (Morant, 2004, p. 18). Judicial interpretation of which issues are critical to the public illustrates that the individual rights to enhance robust debate are nonexistent; in Winfrey‘s case, Robinson and not the people determined whether the issue and the panic it would incite was worth the trouble. In theory information must simultaneously enhance societal interests and the autonomy of individuals, but often it cannot. Morant‘s (2004) idea of deliberative democracy, in which the ―media optimizes its utility and enhances public debate when the information it disseminates reflects a broad spectrum of viewpoints,‖ relies on competing and contradictory information to enhance discussion (p. 24). However, APD and consequential fears of being sued create chill and therefore mitigate a media system with a multiplicity of ideas.

4.4.4. Beef: Overstated Risk or a Truly Perilous Product?

At the time of Winfrey‘s 1996 broadcast, scientific uncertainty regarding BSE had reached a level of mass confusion, at least through its dissemination through the media. As Rampton and Stauber (1997) point out, in spite of emergence of more reliable BSE research,

―The industries which stood to suffer from those consequences continued to downplay and deny the steadily mounting evidence;‖ they largely credited scares to sensationalized British press stories, speculation, and public perceptions of risk (p. 201)

4.4.4. 1 Mad cow isn’t bad for you…yet. In addition to the complications facing the legal language of the Winfrey case, considerations of the scientific validity the defendants‘ statements create even more confusion over the potential protection of food criticisms. While in theory, science is valued in the legal system for its ability to present factual evidence in the absence of laws that can be governed neutrally (Streeter, 1990), the reality facing the legal system is that science, just like language, is value laden and inconsistent as well. Questions arise when the decisive factors of a case contradict each other, and for these reasons, the legal system is only further complicated by attempts to use value free constructs in rulings. When these scientific norms are derived from the society that produces them, the legal system requires judicial interpretation and in turn becomes highly unpredictable. These complications can be seen in the Winfrey case, where notions of risk and falsity have contributed to the uncertainty of the legal system and increased questions of the validity of food criticisms in free speech.

4.4.4.2 Legal and Scientific Background of the Winfrey Case. These problematic assumptions and questions of risk are highlighted in Winfrey‘s case. Prior to the 1996 airing of Winfrey‘s episode on BSE, contradictory evidence on the harms of mad cow disease had been highly covered throughout the media and scientific community (Rampton & Stauber, 1997). The background in Winfrey‘s litigation, Texas Beef Group v. Winfrey (1998), reflects this controversial history, citing the emergence of Bovine Spongiform Encephalopathy (BSE) in Great Britain, its links to the human disorder known as Creutzfeldt-Jacob Disease (CDJ), and both cattle and human health problems‘ connection to such diseases as a result of Transmissible Spongiform Encephalopathy (TSE) (Texas Beef Group v. Winfrey, 1998). The scientific language in the document is surprisingly absolute, utilizing statements such as ―it (TSE) is always fatal‖ (Texas Beef Group v. Winfrey, 1998, p. 861). The legal background highlights that the links between these diseases have been posited to be the derivative of feeding ―certain infected cattle and sheep tissues to cattle in the form of ‗ruminant‘ derived protein supplements,‖ ruminants defined as animals with split hooves, multiple stomachs, and that chew cud (Texas Beef Group v. Winfrey, 1998, p. 861). The World Health Organization felt the disease, was

powerful enough to warrant action, and on April 2 and 3 1996, it issued a statement encouraging all countries to ban the practice of using ruminant feed in ruminant feeding practices (Texas Beef Group v. Winfrey, 1998). While the disease was cited to have been spread to other countries from Great Britain, the United States had been found to be free of BSE or CDJ diagnoses (Texas Beef Group v. Winfrey, 1998, p. 861). In spite of the lack of disease however, United States agricultural sectors and government swiftly addressed the controversial information stemming from global health critics. Shortly after the British announcements on the potential hazards of BSE, CDJ, and TSE, the USDA and Animal & Plant Health Inspection Service (APHIS) called an emergency meeting to explain the information on mad cow disease streaming from international news outlets, and the National Cattlemen‘s Beef Association (NCBA) announced a voluntary ban on feeding ruminant-derived proteins to ruminants (Texas Beef Group v. Winfrey, 1998). By April 8, 1996, the United States Departments of Defense, Centers for Disease Control and Prevention (CDC), National Institutions of Health (NIH), USDA, and Food and Drug Administration (FDA) held a meeting to discuss the facts surrounding the link between BSE and CDJ (Texas Beef Group v. Winfrey, 1998). The international attention including the British Health Minister‘s announcements ―generated numerous reports in the United States‖ (Texas Beef Group v. Winfrey, 1998, p. 861). As listed in Texas Beef Group v. Winfrey (1998), these included: A March 21, 1996, New York Times article announced, "Britain Ties Deadly Brain Disease to Cow Ailment." On March 28, 1996, The Wall Street Journal ran an article entitled, "Agriculture Officials Say Mad-Cow Risk Is Small in U.S. but Don't Rule It Out." An April 5, 1996, New York Times article quoted an expert estimating that "a teaspoonful of highly infective cattle feed is enough to cause mad-cow disease." An April 8, 1996, Newsweek headline read, "Mad Cow Disease in the U.S.? Don't panic, but one version's already here." Television reports included: A March 14, 1996, Dateline report on Mad Cow Disease which included video of a CJD victim hospitalized in New York. On March 22, 1996, CNBC's America's Talking aired a segment on Mad Cow Disease that featured a debate between Dr. Gary Weber and Howard Lyman. The CNBC program attracted the attention of staffers on The Oprah Winfrey Show to Weber and Lyman as prospective guests for the "Dangerous Foods" program.

Winfrey‘s story about BSE, entitled, "Dangerous Food‖ (Texas Beef Group v. Winfrey, 1998), included two major segments. The first concerned BSE in England and a guest whose granddaughter was in a coma from suffering CJD, possibly contracted from eating a tainted

burger (Texas Beef Group v. Winfrey, 1998). The second segment, considering the question ―Could it happen here?‖ hosted Dr. Gary Weber, a representative from the National Cattleman‘s Beef Association, Dr. William Hueston from the USDA, and Howard Lyman, a former cattle rancher turned vegetarian and executive director of the Human Society‘s Eating With Conscience campaign (Texas Beef Group v. Winfrey, 1998). While both pieces contained relatively striking information, it was the second segment with which the plaintiffs had the greatest concerns. According to the judge‘s analysis of the show,

Lyman vigorously asserted the need for a mandatory ban on ruminant-to-ruminant feeding and stated that the United States is at risk of an outbreak similar to that in England, if the practice continued. Weber and Hueston argued that U.S. beef is safe because BSE does not exist in the United States and that the United States has carefully monitored the situation for 10 years. (Texas Beef Group v. Winfrey, 1998, p. 863)

Here the contested evidence surrounding BSE in the Winfrey litigation can most clearly be seen. Controversial scientific evidence and arguments coming from multiple seemingly valid sources creates questions as to which information is correct. Interestingly, although the groups later sued Winfrey for disparagement, Dr. Weber and Dr. Hueston themselves ―validated a substantial part of the program,‖ admitting that people have freedom to voice opinions and that the freedom of individual consumers and producers was to raise ideas (Texas Beef Group v. Winfrey, 1998). According to the plaintiffs, the portions of the show discussing BSE were unquestionably boiled down to ―a ‗scary story‘ falsely suggesting that U.S. beef is highly dangerous because Mad Cow Disease and that a horrible epidemic worse than Aids could occur from eating U.S. beef,‖ riddled with ―false exaggerations‖ and malicious editing (Texas Beef Group v. Winfrey, 1998, p. 863). These accusations were formally challenged by the plaintiffs on December 29, 1997 (Texas Beef Group v. Winfrey, 1998), when the group filed APD charges against the defendants. Interestingly, ―on June 5, 1997, 14 months after the ‗Dangerous Food‘ segment aired, the FDA published the final rules on a ruminant-to-ruminant feed ban. That ban became effective on August 4, 1997‖ (Texas Beef Group v. Winfrey, 2008, p. 863). The fact that these processes were of such great concern that they lost support with government agencies illustrates that Winfrey‘s time in court was potentially unwarranted, as many of the things she said later turned out to accurately convey the risks of ruminant to ruminant feeding.

While Judge Robinson did rule in the defendants‘ favor, citing that the ―plaintiffs failed to present evidence upon which a reasonable jury could have concluded that defendants had actual knowledge of the falsity, if any, of the statements made,‖ the case left little precedent or validation for the truthfulness of the evidence (Texas Beef Group v. Winfrey, 1998, p. 863). Winfrey‘s litigation left speakers with an inability to determine whether speech acts based in large amounts of contested evidence could be protected indefinitely, and this further perpetuated fears of the uncertainty of the legal system (Streeter, 1990). The evolution of the evidence of the Winfrey case and BSE is a clear illustration of how science is often context bound, contingent, and therefore necessitates judicial interpretation and evaluation: the ability to get the right scientists to speak in favor of each side and how facts will in turn be evaluated then only further perpetuates fear of the legal system (Herrick, 2005; Streeter, 1990)

4.4.5 The Perils of Perishable Beef

The legal system also contradicts its own principles in its reliance on language. Theoretically, legal language is found valuable because it ―provide[s] fixed, rigorous meanings unsullied by the political and social winds of the moment,‖ but in reality the lack of permanence and universality of words makes interpretation subject to flaw or bias, perpetuating fears of legal indeterminacy (p. 46). Referring back to the previously discussed idea that human reality is socially constructed, the legal system‘s reliance upon language is therefore mitigated by the idea that as a result, language, collective procedures, and scientific method become context bound and contingent as well (Morant, 1984). This means in short that litigation will not only be affected by the precedents the judge chooses to determine, but also the way each aspect of the language in the precedent is interpreted and how the plaintiff and defendant are found to fit definitions and subsequent requirements.

The Texas False Disparagement of Perishable Food Products Act ch.96 § 1 (1995) defines perishable food product 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.‖ While the defendants argued that these APD statutes were unconstitutional and chilled speech, their win was the result of the plaintiffs‘ failure adhere to the definition of ―perishable product,‖ prove that the statement was a knowingly made falsity, and prove that malice was conducted ―of and concerning‖ the Texas beef industry (Texas Beef Group v. Winfrey, 1998).

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The idea that the case failed to fit the current APD statutes though beef would seem to be a perishable product illustrates the uncertainty facing plaintiffs and defendants. While Judge Robinson pointed out, ―live cattle are generally not perishable as perishable is defined in the statute,‖ the plaintiffs argued that holding the beef beyond its sales point reduced both profit and quality, making them in a state of ―less perfection‖ (Texas Beef Group v. Winfrey, 1998, p. 863). The plaintiffs‘ argument seems valid, but once again facing the uncertainty of judicial interpretation and the reliance on an adherence to legal language, Robinson‘s decree stands under the notion ―None of this evidence that live fed cattle fit within the carefully crafted statutory language which requires that the food product in question perish or decay ‗beyond marketability‘‖; in short while the beef may have been reduce in quality and in turn reduced profits by making it less marketable, the loss failed to adhere to the Texas APD statutes requirement of it being ―beyond‖ marketability (Texas Beef Group v. Winfrey, 1998, p. 863). Here even plaintiffs face uncertainty over judicial interpretation, and it is critical to consider that the same circumstances could have easily been overturned and considered against the arguments of the defendant (Streeter, 1990). In 2000, the same circumstances were inflicted upon the defendants, and in an appeal, Engler v. Winfrey (2000), determined that the law itself only attempted to interpret whether the product ―could‖ be perishable, not whether the product in question actually was going to perish, citing that the ―court must determine if a product could decay beyond marketability, as opposed to whether that product did decay‖ (p. 38). The complexity and contingency of judicial interpretation can be seen in the judge‘s justification for overturning the former ruling on perishable beef, which states, ―The former is a question of law concerning the scope of the statute, the latter a question of fact concerning damages‖ (Engler v. Winfrey, 2000, p. 38). While the final verdict was not overturned because the plaintiffs had failed to meet ―of and concerning‖ requirements, the uncertainty of the legal system had in fact turned around and become an issue facing defendants who had formerly been confident in their win (Engler v. Winfrey, 2000).

4.4.6 Winfrey’s Menacing Malice

In Winfrey‘s case, not only was perishable food product‘s definition not fulfilled, but also failed to produce evidence that the disparaging statement was knowingly made (Texas Beef Group v. Winfrey, 1998, p. 863). As Judge Robinson points out, the ―requirement of knowing

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mental state is the strictest standard in First Amendment jurisprudence‖ (Texas Beef Group v. Winfrey, 1998, p. 863). Furthermore, the judge points out that ―there is no evidence by which a reasonable juror could conclude that the Defendants had actual knowledge of the falsity, if any, of the statements made‖ (Texas Beef Group v. Winfrey, 1998, p. 863). The statement evokes the idea that in spite of the failure of the plaintiffs to adhere to legal definitions, the scientific validity of the statements in question was also likely not false either. Because malice is such a critical part of the means by which a speaker, judge, and plaintiff determines whether a statement is disparaging, and because malice in turn relies on notions of whether or not the speaker knows the statement is false, the speaker must know whether or not his/her statement is valid prior to his/her speech act.

Judge Robinson‘s verdict concluded ultimately that even if the statement could be construed as defamatory, it failed to meet the ―of and concerning‖ requirement that mandated the disparaging information directly address Texas cattle ranchers (Texas Beef Group v. Winfrey, 1998). As she points out,

None of the Plaintiffs were mentioned by name on the April 16, 1996 Oprah Winfrey Show, and it is stipulated that this program did not mention by name the State of Texas, the Texas Panhandle, or West Texas. Plaintiff Paul Engler testified that the statements made were about him "as well as the rest of the cattle feeding industry." (Texas Beef Group v. Winfrey, 1998, p. 864)

Engler also went on to testify that he was part of a much larger group of harmed cattle ranchers and that there were almost a million feeding operations similar to his throughout the states of Kansas and Colorado (Texas Beef Group v. Winfrey, 1998). However, his statement ultimately harmed his argument since the Texas Court of Appeals upheld the rule that ―‗as a matter of law that an individual may not recover damages for defamation of a group or class in excess of 740 persons of which he is a member.‘ Webb v. Sessions, 531 S.W.2d 211, 213 (Tex. Civ. App.-- Eastland 1975, no writ)‖ (Texas Beef Group v. Winfrey, p. 864).

Meanings of malice are another clear illustration of the confusing use of precedents that necessitate judicial interpretation, the complexities surrounding legal language, and most importantly the uncertainty facing the legal system as a result (Streeter, 1990). The Texas

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Federal Court ruled in favor of the defendants and Winfrey won her case (Texas Beef Group v. Winfrey, 1998). It would appear that true to Winfrey‘s infamous statement, ―free speech not only lives, it rocks!‖ (Katel, 1998, para. 1). Free speech‘s glorified win would, however, prove only temporary in the face of a much larger movement.

4.5 The First Amendment Goes into Hibernation

The proclamations of Winfrey‘s win were only short lived in the face of the larger media chill that stemmed forth from her litigation. While the talk show host initially and openly touted her victory over the enormous Texas agri-industry, later shows on controversial subjects such as food, cattle, and health concerns would bear the mark of carefully constructed and safer conclusions. However, emerging rumors of the celebrity‘s newfound carefulness, refusal to release the tape, and even refusals of the producers to have other controversial actors concerned with food illustrate how media chill consequently rose to new heights (Nestle, 2002, p. 165; Rampton & Stauber, 1997, p. 192). Certain information regarding the case has been notably sparse and for these reasons, many authors analyzing the internal connections and interorganizational ties have been limited to secondary sources (Goetz, 1997; Rampton & Stauber, 1997; Soley, 2002). Winfrey spent over $1 million fighting the six years of litigation and was not easily ready to go through the process again; neither were others (Schlosser & Kenner, 2008, n.p. ; Soley, 2002, p. 123). Considering Winfrey‘s case and the subsequent examples of SLAPP suits enacted by the food industry, food critics and providers of public information were now facing fears of fine, punishment, depravation of governmental benefit, and extensive legal battles that would be both costly and time consuming. The media now had large incentives to hush themselves. Texas beef groups may have lost the litigation, but ultimately they provided a great service to the agri-industry as a whole in the form of a preventative barrier to many future criticisms of food products and services.

Here Winfrey‘s case display of the ruptures and sutures of an already hegemonically manipulated system of free speech. The initiation of a movement into questioning the food system and consequent attempt to mitigate such action though legal retribution, not only in Winfrey‘s case but in the very making of the laws that allowed her to be sued, blatantly illustrates that the legal system has become overridden with the interests of industry. Winfrey‘s case created a rupture in the hegemonic discourse of the food industry, it was highly publicized,

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drew much attention to the food issues at hand, and Winfrey actually became a beloved figure in Texas (Katel, 1998). Citizens were reassured that their legal system did function according to the protections of free speech even though the case was not decided on free speech. Faith in the liberal legal system was restored and the inability of free speech to be protected by an inherently flawed legal system became an issue restricted largely to small segments of academia. Following cases of infringements of free speech would be largely unknown, inaccurately portrayed, or ignored by those who needed the information the most in the first place. However, the exhibited abilities of the food industry to hush reporters, either indirectly through chill or directly through SLAPP suits, are clear illustrations of how resistance to the food industries‘ information is often only temporary.

In a time of rising concerns over the health consequences arising from many agricultural practices, particularly regarding hormones in milk, major platforms for food criticisms were slowly slinking away. The First Amendment had temporarily gone into hiding, or so it seemed. In the midst of Winfrey‘s litigation Jane Akre and her husband Steve Wilson were still willing to question the methods of the industrial food system. Their story about the effects of the rBGH hormone, its effects on health, and the roles of farmers and chemical companies in its dispersal was confidently pursued and highly promoted by their station (Akre & Wilson, 2006, p. 553). On the eve of its February airing, however, it appeared that once again the pressure of the food industry would infringe upon a rupture in the hegemonic discourse of the food system and available information on its practices. It appeared that cases such as Texas Beef Group v. Winfrey (1998) brought all parties concerned, both in the media and the food industry, to question whether there is always a right to proclaim ―what really lurks beneath those sesame- seed buns‖ (Schlosser, 2001, p. 10).

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CHAPTER 5 AKRE AND THE ABSENT APD CASE

In the midst of Winfrey‘s controversial battle with the beef industry, other dairy disputes were quickly rising throughout the nation. The release of Monsanto‘s new product Posilac in the early 1990s, a supplement of cows‘ naturally occurring hormone bST, was initially hyped for its ability to produce more milk in cows who received injections of the supplement (―Milk Labeling,‖ 2009). 3 Additionally, the supplement was also capable of creating greater output with fewer cattle involved; it was a miracle drug that could reduce costs and increase profits, and a farmer‘s greatest new asset (―Milk Labeling,‖ 2009). According to Monsanto, the results also came at no risk, claiming that the milk from cows treated with Posilac is identical to milk produced by cows that are not treated (―Milk Labeling,‖ 2009). The company bragged, ―There is no laboratory anywhere in the world that can tell the difference between milk from a cow that has been treated with Posilac and milk from one that hasn‘t been treated,‖ making it equally as safe as other supplements and worthy of the approval it was given from the USDA, World Trade Organization, American Medical Association, American dietetic association, and regulatory agencies in thirty countries across the globe (―Milk Labeling,‖ 2009, para. 3). For Monsanto and its shareholders, the new wonder supplement proved the perfect way to raise profits and benefit the public with mass quantities of safe milk. However, to the dismay of the parties involved with the production of Posilac, a completely different story about the perils of consuming beef products was slowly unfolding throughout the mass media, and rBST would soon be its favored subject.

By 1996, the same year as Winfrey‘s ―Dangerous Beef‖ episode, ―opposition from certain groups‖ about rBST, a concern Monsanto had only offered brief attention to in its annual reports, had solidified into significant qualms from sources in the mainstream media (Monsanto, 1993, p. 8; Monsanto, 1994, p. 35). One of these sources was, Jane Akre, a rising journalist for a Fox news affiliate in Tampa. Akre decided to check some of the questionable information and consumer concerns surrounding rBST, unaware that by 1998, rBST would not be the only

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controversial story in her life. Her story about questions regarding the safety of the Florida milk supply would spearhead not only into a struggle to air a news segment that contradicted Monsanto‘s unrelenting praise of Posilac, but also a major battle for whether such information belonged in the protected realm of critical public information.

As this manuscript will show, the critical legal criticisms and political economic factors complicating the Akre case are clear illustrations of attempts of the system to maintain cultural hegemony and keep the level of intellectualism about food at a point that discourages resistance. In contrast to Winfrey‘s case, Akre‘s battle over free speech would result in a loss to the public in the form of an untold story, not even allowing a minimal rupture in the elite‘s cultural domination of the ways the United States public thinks about food (Jones, 2006, p. 97). The public, either unaware or accepting of the repression of the news, have become lulled by misleading or inconsistent science from the corporations and federal regulatory agencies they trust, the corporate media‘s argument for the need to maintain profits, and faith in an uncertain legal system. As a result, the nation has been unable to largely resist practices that are not in its interest; in many aspects, people are wholly unaware that there is even a problem, and this disparity is indebted to the diminishing amounts of critical information found in the news. Akre‘s case illustrates the connection between repressions of consumer choice and repressions of free speech, how these problems have greatly contributed to the inability of the media to alert the public, and the inability of the public to consequently determine what is in their food. More importantly, Akre‘s case is a clear illustration of the effects APD statutes have had on media chill. Not only have the media been stifled by the legal process, but the mere threat of disparagement for this Fox news journalist created an infringement on free speech in the absence of an actual disparagement suit. An application of CLS criticism to Akre and Wilson‘s story exemplifies how the ―U.S. legal system has failed to produce justice,‖ and how the political economy has largely manipulated this shortcoming for its own benefit by evoking fear in a media industry largely dependent on profit (Streeter, 1990, p. 46). This chapter will analyze the unfolding of a series of seemingly unconnected events, and illustrate that in reality, the emergence of rBST in United States markets, the silencing of Akre‘s story, and the litigation following her silencing were the result of intense interorganizational ties and industry‘s awareness that the legal system does not always fulfill public expectations of justice.

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5.1 Posilac: The New Miracle Milk Drug

The initial information surrounding rBST is interestingly riddled with little controversy. In the early 1980s, scientists developed rBST, a synthetic version of the naturally occurring protein hormone in cows that supports growth and lactation (Cusimano, 2008, p. 1095). Administered intravenously, this new drug, Posilac, is carried into the liver, stimulates the Insulin-like growth factor IGF-1, and in turn supports up to 20 percent more milk production (Cusimano, 2008, p. 1099). As of 2009, almost one-third of dairy cattle in the United States have been shown to receive this drug, and ―to this day, Monsanto maintains a monopoly as the sole producer of rBGH‖ (Cusimano, 2008, p. 1099).

However, the touted miracle supplement that could both increase milk yields and simultaneously reduce farmers‘ workloads would eventually find much opposition from scientists and consumers concerned with the conflicting studies on its effects and questionable adoption into United States markets (Cusimano, 2008, p. 1097). As Cusimano (2009) points out, ―studies, wholly sponsored by Monsanto, were the basis of the FDA's decision to approve the commercial use of rBGH, despite mounting evidence of serious adverse effects in humans‖ (p. 1095). As a result, Monsanto quickly responded to the public concern, and ―One of the smartest moves by Monsanto in the rBGH fight was hiring Carol Tucker Foreman, an influential and well-connected Democratic insider and lobbyist‖ (Stauber, 1999, p. 126). Foreman was of great service to Monsanto in its efforts to protect rBGH‘s positive perceptions from both consumers and farmers (Stauber, 1999, p. 125). She successfully turned the negative thoughts running through the minds of critics with several catchy and reassuring slogans, but her ability to save rBST is not her only impressive attribute.

Foreman‘s resume, in addition to her work with Monsanto, is quite impressive: it includes an executive director position of the Consumer Federation of America and Assistant Secretary of Agriculture under President Jimmy Carter (Stauber, 1999, p. 126). Her diverse field of work is a clear illustration of the ―permissive culture of Congress,‖ as workers move back and forth between industrial and political positions that often have similar areas of expertise but conflicting interests (Nestle, 2002, p. 138). Notably, Foreman also slipped outside the cracks of expectations that public servants cannot have other careers with conflicting interests during their time of service. The fact that Foreman was working for Monsanto and the Safe Food

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Coalition, a self proclaimed public interest group, simultaneously made her a food policy Jekyll and Hyde; she was a public protector by day and a bodyguard of business by night, a career move that likely gave her own interests and that of her future career a significant amount of clout in the duality of expertise she was gaining. While these movements are often justified on the basis of the benefit offered by someone with ―expertise‖ in a given area, as Kaiser (2009) points out, this can be a more tactical move where this expertise is instead used to ―influence people‖ and ―policies‖ (p. 1). Once again, this relationship illustrates a problem since Foreman, like many others, would want to maintain favor on both sides so she could keep her job possibilities open, preserve close relationships, and protect the interests of those who are willing to offer them the larger salary. It is difficult to say Foreman‘s interests would not at times conflict or remain neutral across jobs in industry and policy.

One of Foreman‘s successful campaigns was a carefully chosen and repeated mantra ―the milk is the same,‖ but as Stauber points out, it was an atrocious falsity, as illustrated in the fact that the so called miracle drug ―hasn‘t been approved by Europe or Canada‖ (Stauber, 1999, p. 125). In spite of the successful campaigns to keep rBST milk free from criticisms, several major institutions, including the United States Government Accountability Office, have found that one of the primary problems of Posilac is that it leads to infection to the cows‘ udders, creating mastitis and sickness (Achbar, 2003, n.p.). A follow-up study by a group of veterinarians found that this ailment among cows treated with rBST happened approximately 25 percent of the time (Cusimano, 2008, p. 1099). In turn, when the cows develop mastitis, they are given antibiotics (Achbar, 2003, n.p.). For consumers drinking this milk, the results can be quite hazardous; studies have shown that rBST has led to an increased consumption of the puss in the milk, higher bacteria counts, and humans‘ increased resistance to antibiotics (Achbar, 2003, n.p.).

In spite of Monsanto‘s refusals to make much of the information about the product public, outside studies have shown that the milk coming from cows who have been injected with rBST has higher amounts of a spin-off hormone called factor-1 (1GF-1), an insulin-like growth factor (Akre, 2002, p. 38). 1GF-1, as the news team was well aware, was a notably powerful promoter of cell growth, and while it typically was associated as positive since it is contained in mothers‘ milk, the hormone holds drastic side effects (Akre, 2002, p. 40). The primary concern of scientists the worldwide was that 1Gf-1 does not differentiate which cells it will increase,

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meaning the drug has been known to actively stimulate the growth of cancer through an increase of these ―bad cells‖ (Akre, 2002, p. 40). When Akre began her research, she discovered not only had critical studies illustrated these hazards, but also that research on the effects of the long term toxicity of rBST on humans through the consumption of such milk had only been based on science that skimmed the surface (Akre, 2002, p. 40). In direct contrast to Monsanto‘s claims that Posilac was ―one of the single most tested products in history,‖ the longest study conducted at the time of the FDA‘s approval had lasted ninety days, and was not done on humans, but instead on thirty rats (Achbar, 2003, n.p.; Akre, 2002, p. 40).

As international leading authority on the causes and prevention of cancer Samuel S. Epstein M.D. points out, since 1989, Monsanto was clearly aware of the harms of their product (Achbar, 2003, n.p.). While Monsanto argued that Posilac had no evidence proving it was harmful to humans or have adverse side effects (Achbar, 2003, n.p.), Dr. Epstein quickly found that this notion was contrary to the truth. After having a set of Monsanto files anonymously planted on his desk, Dr. Epstein found a toxicological report dealing with the testing of cows given rBGH (Achbar, 2003, n.p.). According to him, the conclusions of the original toxicology report, ―clearly showed that [Monsanto] had lied through their teeth, the files described areas of chronic information in the heart, kidneys, spleen, also reproductive problems‖ (Achbar, 2003, n.p.). Interestingly, Dr. Richard Burroughs, a scientist for the Center for Veterinary Medicine (CVM) (an arm of the FDA), ―asked too many questions‖ about the lax studies conducted by Monsanto, but was fired just prior to 1993 (Akre, 2002, p. 40). Even though the research came from a corporation who previously had touted the safety of Agent Orange and DDT, Monsanto‘s assurances that the drug was not of harm to humans led the FDA to believe further testing was not needed (Achbar, 2003, n.p.; Akre, 2002, p. 40; Cusimano, 2008, p. 1105), and the FDA approved the drug in 1994 (Monsanto, 1993, p. 8; p. 29; Stauber, 1999, p. 126).

Interestingly, the Consumers Union, the only oppositional group listed in the adoption of the Texas APD statutes, furiously attempted to reveal the Monsanto revised report‘s flat out contradiction to and misleading nature as compared to Monsanto‘s original unpublished studies (Texas C.R.H.B. 722, 1995; Hansen, 1998). The reality was that the report Akre was aware of and that had been placed on Dr. Epstein‘s desk actually stated that ―a third of the test rats actually developed cysts and lesions on their thyroids and prostates‖ (Akre, 2002, p. 40).

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Furthermore, researchers at the Health Protection Branch in Canada found very different results from the FDA regarding the effects of rBST on human health, concluding that the drug could be absorbed by the body and was unsafe for human health (Achbar, 2003, n.p.). As Akre points out in The Corporation, the ability of the drug to be released onto United States markets in spite of such information illustrates that ―either Monsanto misreported the results to the FDA, or the FDA didn‘t bother to look in depth at Monsanto‘s own studies‖ (Achbar, 2003, n.p.).

5.2 Akre and Wilson and the Battle over BGH Information

Over time, a small group of experts and consumers would begin to question the drug‘s safety, and consequently the FDA‘s approval of it created ―a cloud of skepticism‖ about whether it should be used on dairy cattle (Cusimano, 2008, p. 1095). Steve Wilson and his wife Jane Akre, investigative reporters for Fox affiliate WTVT Channel 13 in Tampa, would become aware of critical assessments provided by experts such as Epstein and wanted to get to the bottom of the ―mystery‖ of the milk supply. Hoping to find out if she could verify what she had been told by dairy business insiders, that Florida farmers were injecting their cows with a highly controversial and powerful growth hormone that forced cows to produce more milk, Akre diligently started yet another episode of the pair‘s news program ―The Investigators‖ (Akre, 2002, p. 38).

As Akre points out, while the drug was approved by the FDA at the time of the story, ―scientists around the world remained troubled with as-yet-unanswered-questions about the supplement‘s safety for consumers who drink the altered milk‖ (Akre, 2002, p. 38). Driving up to the nearest dairy farm with the hope of capturing footage, Akre and her photographer simply asked Dairy Manager Ken Deaton for permission to film, and luckily he both agreed and was getting ready to inject the cows with their hormones (Akre, 2002, p. 38). As Akre points out, Monsanto was definitely involved, as each needle put into the cows‘ hides bore the name of Posilac (Akre, 2002, p. 38). The story started off a complete success, and Akre and Wilson continued to write the story, unaware that their observations would never survive the ―face-off‖ they would have to fight against ―Rupert Murdoch‘s News Corporation and its very deep pockets‖ (Akre, 2002, p. 39).

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The piece produced by Akre and Wilson was originally chosen to run on February 24, 1997, in a ―sweeps‖ period when rates are set and stations consequently attempt to air work that grabs the greatest number of viewers (Akre, 2002, p. 41). True to the nature of ―The Investigators‖ promo and its claims of ―unveiling the truth‖ (Achbar, 2003, n.p.; Akre, 2002, p. 41), the story attempted to answer questions such as:

Why had Monsanto sued two small dairies to prevent them from labeling their milk as coming from cows not injected by the drug? Why had two Canadian health regulators claimed, like Richard Burroughs at the FDA, that their jobs were threatened—and then said Monsanto offered them a bribe to give fast-track approval to the drug? Why did Florida supermarkets break their much-publicized promise to consumers that milk in the diary case would not come from hormone-treated cows ‗until it gained widespread acceptance‘ among the public? And why, in large part due to concerns about human health, was the United States the only major industrialized nation to approve the use of this controversial genetically engineered hormone? (Akre, 2002, p. 41; emphasis in original)

It was a balanced issue piece that contained the uses of rBST, interviews with Florida dairy farmers who both used and refused to use the synthetic hormones, interviews with critics of rBST such as Dr. Samuel Epstein and Dr. William von Meyer, Monsanto scientist Robert Collier, Monsanto Posilac sales tapes, and the potential inadequacies of rBST‘s FDA approval (Akre & Wilson, February 24, 1997). The station was overjoyed with the controversial and thought provoking story, hyping the scariness of food issues in ―The Mystery in Your Milk‖ with thousands of dollars worth of advertisements across almost every Tampa Bay radio station (Akre, 2002, p. 41).

5.3 The Truth Does Not Make Money

By early 1997, the story had been highly promoted, advertising had been bought, and it was ready to air on Monday February 24 (Akre, 2002, p. 41). All systems were go until on Friday February 21, the business eve before the story, when the fax machine spit out a threatening letter addressed to president of Fox News in New York, Roger Ailes; it was from Monsanto‘s lawyer John Walsh at Cadwalader, Wickersham, & Taft (Achbar, 2003, n.p.; Akre,

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2002, p. 41; Walsh, February 21, 1997). The letter was written to bring attention to the situation involving ―great concern to Monsanto,‖ Akre and Wilson‘s story involving Monsanto‘s product Posilac (Walsh, February 21, 1997, p. 1). Walsh highlighted that specifically what had Monsanto so ―alarmed‖ was ―the assault on their integrity, and the integrity of their product Posilac‖ blatantly attempting to be written by the investigative team (Walsh, February 21, 1997, p. 1). Monsanto also accused that the reporters, having ―had no scientific confidence of their own,‖ of making false assertions regarding the lack of safety of the supplement and portraying Monsanto as a fraudulent, lying, and bribing corporation (Walsh, February 21, 1997, p. 3). Interestingly, the letter made reference to the Food Lion verdict, where even irrefutable evidence received from hidden cameras or other contested means of gathering information had completely mitigated a reporter‘s right to tell a story (Akre, 2002, p. 42; Walsh, February 21, 1997). The letter concluded with Walsh‘s assertion that ―There is a lot at stake in what is going on in Florida, not only for Monsanto, but also for Fox News and its owner, as well as for the American people and a world of agricultural technology‖ (Walsh, February 21, 1997, p. 4). The letter was clearly a threat, and more importantly, one that would probably have fit under APD litigation, and the pursuit of fighting ―the reckless presentation of unsupported speculation as fact‖ (Walsh, February 21, 1997, p. 4). But as Akre points out, the assertions about the report had to be unwarranted since all criticisms of the yet-to-be-aired story would have ―ostensibly never seen‖ (Akre, 2002, p. 41).

Akre asked the station‘s news director Daniel Webster if they were pulling the story because of the letters and received what she reveals as an unusual moment of honesty: an answer that yes, that was completely the case (Akre, 2002, p. 42). As Wilson points out, ―if you didn‘t know the story, and you didn‘t know how we had gone about producing it, it would have scared you as a broadcaster, as a manager‖ (Achbar, 2003, n.p.). That Friday, the story was consequently pulled off the air to be ―checked,‖ in spite of Wilson and Akre‘s claims that there were ―no factual errors‖ and both sides had been allowed to represent themselves, present their evidence, and give their viewpoints on the issues (Achbar, 2003, n.p.). Luckily for Akre and Wilson, the station‘s general manager Bob Franklin was a former investigative reporter and issued the pair a chance to revise the story and offer Monsanto another interview, which the group felt would minimize the legal risk concerned with the threatening letter (Akre, 2002, p. 42). A new air date was set for March 3, 1997, with the prospect that the new story would be

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more balanced (Akre, 2002, p. 42), and through the weekend, radio announcements continued to run (Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 7).

However, Monsanto‘s requirements for the new interview were extensive. Monsanto officials demanded a list of the questions Akre and Wilson would ask in the follow-up interview, which the news team argued violated the ethical code of news organizations (Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 8). Fox then demanded Akre and Wilson issue Monsanto a list of the areas the questions would cover so that the Monsanto spokesperson would be prepared to answer (New World Communications of Tampa, 1998, p. 8), which Akre offered in the form of eight points the interview would loosely follow. After receiving the information, Monsanto refused to accept the additional interview, and the next week, on February 28, 1997, John J. Walsh issued a more strongly worded letter, claiming to ―find it nothing short of amazing‖ that only a week after the initial letter Walsh needed to issue another statement concerning Akre and Wilson‘s story and his frustration that Akre refused to detail the exact questions regarding the additional interview offered to Monsanto (Achbar, 2003, n.p.; Walsh, February 28, 1997, p. 1). This time Walsh was clearer about the intentions Monsanto was willing to take if the story aired. He stated that in regard to the eight points Akre had provided, ―Indeed, some of the points clearly contain the elements of defamatory statements which, if repeated in a broadcast, could lead to serious damage to Monsanto and dire consequences for Fox News‖ (Walsh, February 28, 1997, p. 2). The following statement that any ―defamatory implications‖ resulting from characterizations of Posilac would have obvious negative consequences once again likely pointed to an impending agricultural disparagement suit (Walsh, February 28, 1997, p. 2). ―This time, they freaked,‖ and Fox‘s fear of losing advertising dollars, being sued, and having any negative consequences affect Rupert Murdoch‘s extensive network of television stations (at the time Murdoch owned more stations than any other group in America) started a battle over the life of the story (Achbar, 2003, n.p.). As Akre (2002) points out in a chronicled version of her story, ―Nevermind that I carried a milk crate full of documentation to support every word of our proposed broadcast. And nevermind that we refuted all claims that we had acted improperly in our newsgathering and reporting. Our story was pulled again‖ (p. 41).

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The first step in protecting Fox‘s interests was essentially an attempt to pull the story and keep the reporters quiet about why the investigators had been silenced. In an interview in The Corporation (2004), Wilson reveals that on April 16, 1997, the station manager not only asked the reporters what they would do if the story was pulled, but also asked if the pair would tell anyone (Achbar, 2003, n.p.; Akre, 2002, p. 44; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 10). Wilson responded ―only if they ask‖ (Akre, 2002, p. 44). As a result the network then attempted to change the story in a way that would appease all corporate interests involved (Achbar, 2003, n.p.). In spite of the evidence of their story and attempts of Wilson to illustrate that their story was straight, the station manager insisted that the pair ―just write it [the revised story] the way the lawyers want it written‖ (Achbar, 2003, n.p.). Wilson‘s retort to the unheeding manager was ―This is news, this is important, this is stuff people need to know,‖ but the only response he received was that he would revise the story, because ―[Fox] paid $3 billion dollars for these television stations. We‘ll tell you what the news is. The news is what we say it is‖ (Achbar, 2003, n.p.; Akre, 2002, p. 45; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 10).

It was made clear that if the pair was to refuse to cooperate in the revisions, Wilson and Akre would be fired for insubordination within 48 hours, and other staff would be allowed to take the story and present it according to Fox‘s wishes (Achbar, 2003, n.p.; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 10). In response to the threat Wilson made it clear that he was willing to protect information over the public airwaves and fight the station over the ―willful and intentional falsification of the news by a television licensee, a violation of the Communications Act of 1934‖ (Achbar, 2003, n.p.; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 11). Fox would later deny any mention of the Communications Act of 1934 by Akre and Wilson (Wilson & Akre v. New World Communications of Tampa Defendant Answer, 1998, p. 9). In a counter response, Fox ―changed strategies,‖ and instead, an incentive for the reporters‘ disappearance from the controversy was offered (Achbar, 2003, n.p.). Contrary to his previous proclamations of refusing to harm the integrity of the news, Wilson asked, ―How much money?‖ (Achbar, 2003, n.p.). While Akre questioned her husband‘s rationale, she remained silent as Wilson gave the go ahead and told the station to write up the contract (Achbar, 2003, n.p.). The document was Fed-Exed to their house several days later (Achbar, 2003, n.p.). In a letter dated May 6, 1997, Fox‘s attorney Carolyn

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Forest detailed the written contract previously discussed by David Boylan and the reporters (Forrest, May 6, 1997, A). The Separation Agreement and General Release of All Claims contract entailed the agreement that the pair‘s termination would take place on May 31, 1997, they would be offered full pay through their severance period until December, 2, 1997 (approximately worth $200,000), the pair would not pursue Fox under any charges or complaints, and the pair would remain quiet about both rBST issues and the offered contract (Achbar, 2003, n.p.; Forrest, May 6, 1997, A; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 11). A second amendment would later be added to the contract to specifically protect Monsanto, its products, and even its actions surrounding Akre and Wilson (Forrest, May 6, 1997, B).

However, Fox and WTVT were unaware that Wilson‘s and Akre‘s dedication to the public and honest reporting had never faltered. Wilson had strategically allowed the station to incriminate itself on paper (Achbar, 2003, n.p.; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 12). On May 29, 1997, when the station called and asked if the reporters were going to sign the contract, the pair refused the offers and refused to return the incriminating documents (Achbar, 2003, n.p.). They stated that had money been an issue, they would have never worked the extensive overtime exhibited throughout their career at the station (Achbar, 2003, n.p.; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p.12). When the station then asked that the document be sent back, Akre and Wilson once again politely declined (Achbar, 2003, n.p.). The reporters had Fox by the throat, and as Wilson points out, the strategies of WTVT had to once again change, and the new rationale was ―okay, we can‘t buy you out, we can‘t shut you up, let‘s get the story on the air in a way that we can all agree it will go on the air‖ (Achbar, 2003, n.p.). Fox would later frame the series of events as an ―offer‖ to extend the pair‘s contracts as consultants at the station, claiming the proposal could ―in no way be characterized as ‗hush‘ money‖ (Fox, April 2, 1998, para. 5).

During the eight month re-review process, Akre and Wilson started re-rewiting the story with Fox‘s lawyers and Carolyn Forrest (Achbar, 2003, n.p.). In a rewrite for script 1, revision 28, for example, the reporters were forced to remove detailed evidence about the sentence ―there are some highly suggestive if not persuasive lines of evidence showing that the consumption of this milk (containing rBST) poses risks of breast and colon cancer‖ (Akre & Wilson, October 16,

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1997). All information about the complexities of the process and how these increased levels or rBST were linked to cancer were removed because the claim was ―frightening,‖ but as Akre argues, the new story could leave ―viewers unable to meaningfully understand it out of context‖ (Akre & Wilson, October 16, 1997, p. 2). Later, it was suggested that words such as ―cancer‖ were replaced by less alarming phrases such as ―human health implications,‖ any criticism of Monsanto or its products were removed or minimized (Achbar, 2003, n.p.), and credible scientists critical of Posilac was replaced with ―Wisconsin dairy farmer‖ (Akre, 2002, p. 47). Attention grabbing claims such as ―Critics including the Massachusetts state agricultural commissioner in 1989 have called it ‗crack for cows‘‖ were specifically taken out because the reporters were instructed to avoid antagonistic phrases that would upset Monsanto, even though according to Akre, evidence of the validity of the statement had been shown in reliable sources such as The Boston Globe and TIME Magazine (Akre & Wilson, October 16, 1997, p. 5).

While Akre and Wilson insisted that the claims needed to be thorough for the good of the public, Fox‘s lawyer Carolyn Forrest suggested it would be better to let the viewers gather up the details for themselves (Akre, 2002, p. 48). She claimed, ―You guys just don‘t get it. It doesn‘t matter whether the facts are true. This story just isn‘t worth a couple hundred thousand dollars to go up against Monsanto‖ (Akre, 2002, p. 48). Akre and Wilson suggested killing the story instead of distorting it beyond recognition, but as they point out, Fox was aware that this would cause major PR problems; the story underwent eighty-three rewrites, a relatively unheard of occurrence in reporting (Akre, 2002, p. 48). After the pair continued to refuse to distort their story, on September 2, 1997, Akre and Wilson received yet another letter from Fox‘s attorney Carolyn Forrest, claiming that Fox and WTVT were exercising their right to terminate the pair‘s contract (Forrest, September 2, 1997).

Wilson and Akre argued that they knew this rationale untrue, claiming that it was never about ―being fired for no cause‖ but instead because the pair refused to falsify information or mislead the public (Achbar, 2003, n.p.). In a letter in response to the initial letter from Forrest and the intent to fire the pair, Wilson addressed these concerns to Dave Boylan, claiming that he believed that the real cause of the network‘s decision was due to Wilson‘s resistance to the demands that he write a story he felt distorted the news enough to violate the Communications Act of 1934 and FCC rules (Wilson, September 23, 1997). Fox‘s lawyer Carolyn Forrest wrote

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back and reassured the pair that they were right, they were being fired for standing up to the news network (Achbar, 2003, n.p.; Forrest, September 30, 1997). Forrest stated, ―Although the station has a right to terminate each of you without cause without stating any reason for its decision, there were definite reasons for the decision that was made,‖ including ―your pattern of responding to direction with ‗rancor, argument and personal attacks‘ on the lawyers and editors,‘‖ and ―antagonistic, combative and accusatory behavior‖ in spite of the network‘s attempts to work with the pair (Forrest, September 30, 1997, para 2). As Akre (2002) points out, Forrest‘s unprofessional response proved a ―major tactical error for Fox‖ (p. 49). The document gave Akre and Wilson the cause they needed to file suit (Achbar, 2003, n.p.) after they were finally fired, and the other documents, memoranda, notes, and records they had failed to return would provide valuable evidence in their upcoming case. Interestingly, on November 14, 1997, a second Consulting Agreement and General Release contract offering to pay the pair for their silence was sent, this time offering ―consulting jobs‖ with the station in return for the same silences offered in the document prior to the story‘s revisions (Forrest, November, 14, 1997, A; Forrest, November 14, 1997, B). Once again, the document stated, ―Wilson, his legal counsel or any other person acting on his behalf shall not disclose to any person the contents of this Agreement‖ (Forrest, November 14, 1997, B, p. 4), terms Wilson and Akre refused to accept. A follow-up letter was then sent via Gary D. Roberts‘ interoffice memo to Akre, David Boylan, and Carolyn Forrest, announcing that Akre and Wilson‘s employment contract was ending on December 2, 1997, and announced that Fox was exercising its right to fire the pair ―without cause‖ (Achbar, 2003, n.p.; Roberts, December 1, 1997, p. 1). The memo also reminded them that they should return ―all Fox property, including, without limitation, all notes, memoranda, documents, records and other material pertaining to any report or proposed report that you have worked on during your employment‖ (Roberts, December 1, 1997, p. 1).

5.4 Akre and Wilson go to Court

On April 2 1998, just two months after Winfrey won her court case, Akre and Wilson stood up to their corporate captor and filed suit against Fox under the Florida Private Whistleblowers Act (Akre, 2002, p. 49). The formal complaint was sent out on August 3, 1998, and was the first time any journalist had filed such a case against his/her own network (Akre, 2002, p. 49; Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p.

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1). Akre and Wilson claimed that throughout the 73 rewrites, ― New World had repeatedly threatened and carried out various threats of retaliatory employment actions to coerce the plaintiffs (Akre and Wilson) to broadcast information that plaintiffs (Akre and Wilson) repeatedly demonstrated was unfair, inaccurate, false and misleading to the viewing public‖ (Wilson & Akre v. New World Communications of Tampa Filed Complaint, 1998, p. 7). Florida Whistleblower statute essentially argues that workers who suffer retaliation for refusing to participate in illegal activity or are threatened against for reporting the activity to the authorities are protected (Akre, 2002, p. 49). Akre and Wilson filed suit claiming they were entitled to protection because ―the lies and distortions our employers wanted us to broadcast were not in the public interest and therefore violated the law and regulations of the Federal Communications Commission‖ (Akre, 2002, p. 49).

Fox attempted twice to have the suit dismissed, and after these failures changed attorneys and hired the firm Williams & Connolly, famous for their skill at assisting Bill Clinton through the Monica Lewinsky scandal (Akre, 2002, p. 50). They also issued a press release citing ―journalistic differences,‖ unwillingness of the reporters to be fair and objective, and refusals of Akre and Wilson to ―accept editorial oversight and news council‖ (Fox, 1998, p. 1). They claimed that ―the station merely required the reporters to substantiate the claims made in their story which is standard operating procedure in a responsible newsroom‖ (Fox, 1998, p. 1). Akre and Wilson sold their house and drained their savings to get together the funds to hire civil rights attorneys John Chamblee and Tom Johnson (Akre, 2002, p. 49). The pair of journalists were initially told that the case would cost about $50,000 and take approximately a year to fight, and as Akre (2006) points out, ―That amount was gone after the defendants took our depositions‖ (p. 556). Their lawyers in return promised to stand with them ―no matter who and what the other side kept throwing‖ their way (Akre, 2002, p. 50).

Fox ultimately claimed that Akre and Wilson had ―turned their backs‖ on the rBST story and were using Whistleblower as a tactic to get their jobs back after having missed deadlines and embarking on a personal journey of vengeance against Monsanto (Akre, 2002, p. 50). Fox news director Steve Metlin mistakenly admitted during the litigation that he saw no errors in the stories reporting and couldn‘t see why it didn‘t air (Akre, 2002, p. 51). Famous figures such as Ralph Nader and Walter Cronkite flew in and sat in as experts in the pair‘s defense (Akre, 2002,

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p. 52). They argued the very idea of slanting a story the way Akre and Wilson had been asked to do was an intense violation of good journalism (Akre, 2002, p. 52). As Bisignano (2009) points out, ―The jury instructions were clear in that they were only to rule in favor of Akre if the evidence showed that retaliation was the only reason for her termination‖ (p. 772).

On the basis of this question alone, Jane Akre won her case after a five-week trial and was awarded $425,000 by the jury on Friday August 18, 2000 (Akre, 2002, p. 54). Her husband Steve Wilson, on the other hand, won nothing (Akre, 2002, p. 53). The pair posited that this divergence, even though Steve Wilson was a co-plaintiff and had the exact same story and circumstances, was because he acted as his own lawyer (Akre, 2006, p. 555). Although Wilson had helped fund Akre‘s lawyer, his attorney had quit six weeks before the trial, ―after requesting $ 50,000, which he knew‖ the pair could not afford (Akre, 2006, p. 555). According to Akre (2006), ―We think he got cold feet because Fox would be represented by the firm of Williams & Connolly at trial‖ (p. 556). Once again the SLAPP power of litigation had created chill, as even those trained to navigate the legal system can be deterred from engaging in the protection of free speech through ―fear of fine, punishment, depravation of governmental benefit,‖ the time draining results of the trial, monetary loss, or even the revolving door concern of a lessened possibility of job prospects after the case (Kaiser, 2009, p. 1; Schauer, 1978, p. 689). Acting on his own accord, Wilson‘s aggressive tactics when he acted as his own attorney made the ―the jury [have] a difficult time seeing Steve as both a victim and a tough courtroom advocate‖ (Akre, 2002, p. 53). Overall, the pair felt vindicated in their partial victory (Schweitzer, 2000). Fox attorneys, on the other hand, struggled during the last moments of the case to have the judge to throw out the jury‘s verdict, arguing that ―there is no law, rule, or regulation against slanting the news‖ (Akre, 2002, p. 53). The judge upheld the decision in favor of the reporters, and as a result Akre and Wilson were both awarded the "Goldman Environmental" prize for their investigative efforts on rBGH (Bisignano, 2009, p. 772). Fox in the meantime spun the story to appear that they were a station that held the utmost honesty in reporting, and the case illustrated their refusal to have any reporters work for them who would willingly slant news (Akre, 2002, p. 54).

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5.5 The Goliath Gang: Six Heads are Better than One

According to Jhally, the media as private institutions either run by or answering to those interested in keeping ―concentrated wealth and power in their hands,‖ have illustrated that this drive will stop at nothing to repress and manipulate knowledge that works against maintaining the power status quo (Jhally, 1989, p. 68). Krantz points out, the increasingly concentrated media and its interlocking ties (Krantz, 2002, p. 1) make it easy for them to band together in times of need, working together to maintain their power and trade resources (Bagdikian, 2004, p. 9). In the case of New World Communications of Tampa v. Akre (2003), protecting the interests of the media as a whole, and preventing Akre‘s win from setting an example of the power of free speech over corporate interests would bring even the fiercest competitors to the table to maintain the interests of industry. On September 13, 2001, Fox and five other media conglomerates such as the Belo Corporation, Cox Television, Gannett company, Media General, and Post-Newsweek stations gathered together to come to the corporate world‘s defense (Akre, 2002, p. 59). While Fox would act as the main plaintiff, these corporations were allowed to serve as amicus curiae, or friends of the court (Akre, 2002, p. 59). Fox, with the media big cats behind it for support, filed for an appeal of the original case. The battle was waged; it was Akre verses the media industry, and Akre, exhausted from the former case, would once again face a conglomerate force with vastly greater resources than her own.

The appeals courts found that Akre had no case against the station for news distortion, but little information was publicly released on the intensely complex factors that determined the case (Achbar, 2003, n.p.). The reality of the appeal that overturned the case was that Fox was vindicated because Florida whistleblower status protects those that try to prevent others from breaking the law (Achbar, 2003, n.p.). In spite of the FCC‘s admittance on the importance of the honesty of the news, on February 12, 2003, Florida‘s Second District Court of Appeals found that ―falsifying the news‖ wasn‘t actually against the law (Achbar, 2003, n.p.). They denied Akre whistleblower status, overturned the case, and revoked her former $425,000 win (Achbar, 2003, n.p.; Bisignano, 2009, p. 746).

As Bisignano (2009) points out, originally whistleblower statutes rose as exceptions to freedom of contract rights given to businesses (p. 747). Like agricultural disparagement laws, whistleblower statutes exist in several variations across state, federal, and common law

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expressions (Bisignano, 2009, p. 747; Cavico, 2004, p. 543). They were meant to protect employees who disclose information about or abstain from activities within the workplace that are illegal, immoral, or against the public interest (Cavico, 2004, p. 547). ―Despite the variations within the statutes, courts have consistently ruled that each requirement of the statute governing the claim must be met in order for protection to be granted‖ (Bisignano, 2009, p. 747).

However, the states and courts are not the only regulators of statutes that affected Akre and Wilson. The FCC also yields great power over news-broadcasting agencies, holding the authority to grant and revoke licenses when stations fail to promote the ―public interest‖ (Napoli, 2001, p. 18). Among the factors that would warrant revoking a license is the falsification of the news, since the FCC requires companies to have a policy that requires honesty and ensures precautions that the news is fair, balanced, and accurate (Bisignano, 2009, p. 747). However, the FCC is primarily limited to policy making and regulation, not law making, and as a result, broadcasting companies face no major legal consequences for violating any of the previous requirements (Bisignano, 2009, p. 747; Napoli, 2001, p. 18). In this way, the differentiation between law and policy can exclude ―reporting employees‖ from the protections of whistleblower statutes (Bisignano, 2009, p. 747). Under some statutes, this creates an absence of whistleblower protections for news broadcasters and leaves employees such as Akre and Wilson susceptible to retaliation (Bisignano, 2009, p. 747). According to Bisignano (2009), in general, ―employee protection for whistleblower conduct is extremely inclusive, expanding from activities that are a violation of the law to conduct that is deemed to be against a moral code or public policy‖ (p. 747).

However, whistleblower protections, like many other statutes, must simultaneously protect both the interests of the public, economies, and rights to individual autonomous free speech. The laws are written in a manner that must be interpreted according to the facts of the case, necessitating jurisprudence and a consideration of which element of the case does in fact protect the greater good. As Bisignano (2009) points out, even when state statutes are made to protect reporters, ―Legislatures have a difficult task of clearly establishing the protections afforded to employees and codifying the common law public policy, without exposing corporations to an overwhelming number of whistleblower claims‖ (p. 747). This multiplicity of the interest the courts must protect is a clear reflection of CLS‘s criticism of the individual-

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collective dichotomy in the liberal legal system. As Streeter (1990) points out, because individuals must exist in societies, with the consideration that society thrives in conjunction with thriving economies, the rights of the autonomous speaker simply and public right to access important information are not necessarily the only interests that must be protected; these interests after all become irrelevant if there are no other speakers or receivers to form a plurality of voices and robust debate that enhances democracy (Hutchinson & Monahan, 1984, p. 209; Streeter, 1990, p. 47-49)

Contrary to the general conception of whistleblower, it only when whistleblower statutes cover the repression of immoral or public interest issues does it protect employees who face retaliatory action of their employer (Bisignano, 2009, p. 747). Protected interests will only be protected if they are covered in the individual states‘ laws where the repressive or retaliatory action was taken. In New World Communications‘ appeal, the appellate court reversed the original whistleblower decision after concluding that Akre ―had failed to state a claim under the whistle-blower's statute‖ (New World Communications v. Akre, 2003, p. 4). Their decision was based upon the finding that the FCC's policy had not been adopted as an official rule. As a result, it concluded that the policy was not a "law, rule, or regulation" that the statute required be violated before an actionable claim was involved under the statute, meaning in short the station had violated no ―law‖ and Akre was not entitled to protection (New World Communications v. Akre, 2003, p. 8).

Here the uncertainty of litigation criticized in media chill and critical legal studies becomes evident. While Florida whistleblower's statute does prohibit ―retaliation against employees who have disclosed, or threatened to disclose, employer conduct that is in violation of a law, rule, or regulation” the definitions of these terms is highly contingent (Florida General Labor Regulations § 448.102(1), (3), 1997). ―Law, rule, or regulation‖ is defined as ―including any statute‖ or ―any rule or regulation adopted to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business‖ (Florida General Labor Regulations § 448.101(4), 1997). Because of this technicality, the court agreed that WTVT‘s assertion that the FCC‘s policy against the falsification of the news did not fall under these definitions, with ―news distortion policy‖ having never been

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published as a regulation with ―definitive elements and defenses‖ (New World Communications v. Akre, 2003). It supported this defense with the assertion that FCC policy fell under the adjuncticatory process where decisions resolving challenges were determined through revocations of stations‘ licenses‖ (New World Communications v. Akre, 2003). Akre still argued that the FCC‘s policy was a rule as defined by Florida statutes, which states:

―Rule‖ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or an existing rule. (Florida Administrative Procedure Act §120.52 (16), 1996; New World, Communications v. Akre, 2003)

As the court stated in New World Communications v. Akre (2003), ―even if we agreed with Akre,‖ the section only provides whistle-blower‘s protection to ―adopted rules‖ and not simply ―rules‖ (p. 6; Florida Administrative Procedure Act §120.52 (15), 1996). It went on to cite that the limitation of ―adopted rule‖ material ―only appears deliberate, and well serves the public by hinging civil liability upon matters of which due notice, actual or imputed, has been conveyed‖ (New World Communications v. Akre, 2003, p. 6). In short, the court only found that ―adopted‖ rules fit under conduct that would make an employer subject to liability under the statute, and the FCC‘s news distortion policy was never adopted by Florida statutes as defined in section 120.54 (Florida Administrative Procedure Act §120.52 (16), 1996; New World Communications v. Akre, 2003).

As Streeter (1990), points out, although ―legal language and expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment,‖ in reality interpretation is subject to change, flaw, or even bias, and this perpetuates fears of legal indeterminacy (p. 46). Overall, the court cited not only that ―Federal law recognizes a dichotomy between rulemaking and adjudication; it does not equate the two,‖ but also that while federal agencies have the ―discretion‖ to formulate policy through the adjuctative process, Florida law was not entitled to the same powers (New World Communications v. Fox, 2003, p. 6). The differentiation between rules in the FCC and rules of

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the court system, and the validity of ―adopted rules‖ over simple ―rules‖ illustrate how not only is legal language contingent and based on changing conceptions of justice, but also how legal language can be difficult for those outside the legal system to interpret; this creates uncertainty of the legal process and lessens faith in everyday conceptions of justice (Streeter, 1990, p. 46).

Even the plaintiffs faced uncertainty in judicial interpretation. Traditionally under Florida statutes, ―The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee‖ (Florida General Labor Regulations, § 448.08, 1997). However, the judges decided ―because Fla. Stat. ch. 448.104 (1997) was not mandatory, the appellate court had to consider whether to exercise its discretion and make such an award. Under the circumstances of the appeal, it concluded that the company was not entitled‖ to the entire appellate attorney's fees (New World Communications v. Akre, 2004, p. 1234). Their rationale was that because:

The individual came to the court as an appellee defending a final judgment entered in her favor at the conclusion of a jury trial. It was neither realistic nor good policy to require an appellee who had obtained a favorable jury verdict to abandon it on appeal or risk an award of attorney fees if it was reversed. (New World Communication v. Akre, 2004, p. 1234)

The idea that it was neither ―realistic‖ nor ―good policy‖ to require someone who had previously obtained a favorable jury verdict to have to follow the appeals law and pay the victorious party is a clear illustration of the uncertainty of the legal system. As Schauer (1978) points out, ―the combination of human witnesses, jurors, judges, and lawyers with the imprecision of people made rules guarantees the uncertainty of litigation and reduces confidence in pursuing free speech,‖ (p. 687) and it is critical to remember that the nature of interpretation and need to set reliable precedents are not the only factors that affects this. Judges and juries, like all the other factors of society, are the result of social construction, subject to emotions, sympathies, and conceptions of justice outside of the legal process and liberal legal theory‘s expectations. In spite of the court‘s leniency, Wilson and Akre‘s consequent appeal in 2005 was dismissed (Wilson and Akre v. New World Communications, 2005).

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5.5.1 In the Aftermath: Insight into Monsanto’s Interorganizational Interests

Studies have shown that Monsanto‘s influence in the world of information has been extensive and invasive throughout the years, and interestingly, many of these studies point to a certain degree of Monsanto‘s influence in the Jane Akre case outside of the pressure the corportation placed on Fox. There are several key players that must be considered. The first key player greatly aided in Monsanto‘s political clout during the rBST era. According to Cusimano (2009), Michael Taylor was hired by the FDA‘s Office of Chief Counsel in 1976 and acted as a legal advisor there until 1980 (p. 1106). In 1981 he moved to the law firm of King & Spalding, where he supervised a food and drug group and acted as chief counsel to Monsanto (Cusimano, 2009, p. 1106). After ten years of service, Mr. Taylor went back to the FDA and acted as Commissioner for Policy, during which time he approved the supplement Posilac, and later wrote the FDA regulations banning the labeling of rBST milk (Cusimano, 2009, p. 1106). The governor of Wisconsin, from 1987 until 2001, was also brought into Monsanto‘s fold. According to Cusimano (2009), Thompson used ―state funds to set up a $ 317 million dollar biotech zone for the use of Posilac in Wisconsin after receiving $ 50,000 in campaign contributions from biotech companies‖ (p. 1107).

Dr. Margaret Miller is a key player in the promotion of the science of Monsanto‘s products. She served from 1985 until 1989 as Monsanto as a chemical laboratory supervisor, validating the tests on 1GF-1 and BST in cows, and writing the scientific reports on Posilac that were submitted to the FDA (Cusimano, 2009, p. 1106). After her career at Monsanto, Dr. Miller worked as a reviewer in the Antimicrobials and Antiparastic Branch of the Division of Toxicology and Environmental Sciences, where she helped the FDA draft answers to citizen petitions on rBST sales (Cusimano, 2009, p. 1006). In 1992 she moved to Branch Chief of Hormones and Pharmacological Agents in the Division of Toxicology and Environmental Sciences, helping review the human safety aspects of Posilac (Cusimano, 1009, pp. 1106-1107). ―Basically, the FDA assigned Dr. Miller to the approval of Monsanto‘s rBST‖ (Cusimano, 2009, p. 1107). Monsanto‘s skills at getting the right people into the right jobs in order to protect its products also did not stop in the United States. Even Canadian researchers like Dr. Shiv Kopra from Health Canada, who had highly criticized the supplement, proclaimed that there was a ―very serious problem of secrecy, conspiracy, and things of that nature‖ as pressure and coercion

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to pass supplements of ―questionable safety including rBST‖ had taken place (Achbar, 2003, n.p.).

Steven Milloy, previously discussed as a player in the anti ―junk science‖ language in APD statutes and leader of Junksicence.com, is also implicated in the web of interest surrounding Monsanto and the protection of synthetically treated milk. While initially websites such False Claims IGF-1, Milk, and Cancer may seem to offer simple rebuttals to the ―internet health scares and myth‖ surrounding rBST, they are in fact the work of the Junk Science Project (1GF-1, Milk, and Cancer, 2010). The website claims that much of the critical research surrounding rBST are ―egregious,‖ false, and indebted to the ―Special interest, organic marketing and ―junk science‖ groups,‖ who use these misleading increased cancer risk claims, to scare consumers away (1GF-1, Milk, and Cancer, 2010). While the articles highlight that such scares ―specifically target women and children,‖ they fail to mention anything related to Monsanto‘s own studies linking cancer and rBST in rats (1GF-1, Milk, and Cancer, 2010). Instead, the Junkscience project posits that ―milk is milk and that dairy is a safe and important part of a well balanced diet‖ (1GF-1, Milk, and Cancer, 2010). While these dietary assertions may be true, the belittlement of any campaigns contradicting rBST as ―fear campaigns,‖ distracts from the larger issue that consumers have a right to know, whether it falsely evokes fear or not (1GF-1, Milk, and Cancer, 2010).

In addition, Milloy is a former lobbyist for the EOP Group Inc. lobby group, (―Junkscience.com,‖ 2010) and has an extensive history with several important food and chemical producers. For example, in 1999 Milloy is registered as an EOP lobbyist for Solutia (a subsidiary of chemical company and rBGH and rBGH hormone producer Pharmacia and Monsanto) and in 2000 extended his work to Dow Chemical and the International Food Additives Council (―Query the lobbying disclosure act database,‖ 2010). Interestingly, according to these records, Milloy lobbied for Monsanto on the subject of "food safety and labeling" and "biotech foods"(―Lobby EOP Group 1999,‖ 2010). As early as 1998, however, records have shown that the EOP group has had many lobbyists working for these companies (―Lobby EOP Group 1998,‖ 2010). During 1998 and 1999, EOP group as a whole had clients ranging from Monsanto, the International Dairy Foods Association, and the Federal Beef Producers to the previously mentioned Phillip Morris, the American Feed Industry, the American

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Snack Food Association, Cargill, The National Meat Association, Dow Chemical, The National Cattlemen‘s Beef Association (―Food Industry Lobby 1998,‖ 2010; ―Food Industry Lobby 1999,‖ 2010). Interestingly, in 1998 Cargill also began a joint venture with Monsanto, called Renessen, to expand economic grain ventures (Monsanto, 1998, p. 21), and in 1999, Monsanto and Phillip Morris were joined yet again as employers of the PR/lobby firm BSMG (Stauber, 1999, p. 125). Interestingly, Roger Ailes, the chairman of Fox News, worked with Phillip Morris until 1994, creating campaigns against the initiative to fight smoking by taxing cigarettes (―Roger Ailes,‖ 2010). Rupert Murdoch sat on the Phillip Morris Board of Directors from 1989 until the mid 1990s (―Rupert Murdoch,‖ 2010).

By 1996, Monsanto‘s board of directors contained a virtual menagerie of skills and interests in the industrial, political, and scientific worlds. Robert M. Heyssel, M.D., a key advisory member on the board of directors, acted as the chief executive officer of the Johns Hopkins health systems and Johns Hopkins hospital (Monsanto, 1996, p. 64). Gwendolyn S. King, another advisory board member, was a former commissioner of the United States social security administration (Monsanto, 1996, p. 64). Phillip Leder acted as the chairman of the Department of Genetics at Harvard Medical School and as a senior investigator for the Howard Hughes Medical Institute (Monsanto, 1996, p. 64). John E. Robinson worked as a former United States Treasury department deputy secretary and a corporate attorney prior to his advisory board service with the company (Monsanto, 1996, p. 64). Monsanto by no means had a lack of available ―skills‖ or persuasive power when they chose to fight Fox over the integrity of their story.

But Monsanto did not just have influence in realms popularly known as important, they also had a big hold over agricultural firms, both the big and little guys. The January before the story was scheduled to air, Akre conducted an interview with a dairy science professor at University of Florida Roger Natzke, who even agreed to give Akre a guided tour of the Gainesville Dairy School‘s ―Monsanto Dairy Barn‖ where Posilac had been originally tested (Akre, 2002, p. 46). However, a month after the interview and shortly after his return from a weekend at Monsanto‘s island report, Natzke called the station and complained about Akre‘s interviewing techniques (Akre, 2002, p. 46). After that, as Akre (2002) points out, ―The pieces of the puzzle behind the Monsanto pressure began falling in place‖ (p. 46). Natzke‘s complaint

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also came the same week as Monsanto‘s threats to Fox arrived (Akre, 2002, p. 46). As it turned out, a third letter, unknown to the reporters, had also come (Akre, 2002, p. 46). The threat was from local dairy farmer Joe Wright, with whom Akre had only had a short phone call with about the dairy business (Akre, 2002, p. 46). According to the station, the letter was sent shortly after Wright had attended the Annual Southern Dairy Conference in Atlanta, where Akre and Wilson‘s report had been intensely discussed, and consequently the Dairy Farmers Incorporation helped Wright draft the threat (Akre, 2002, p. 47). According to Wright, there was ― at least one representative from Monsanto‖ present at the conference, as was Natzke (Deposition of J. Wright, 1999, p. 20). Yet another key player was the Dairy Coalition, a group of dairy and pharmaceutical companies that formed after the approval of Posilac in 1993 (Akre, 2002, p. 46). After being fired and while in an attempt to prepare for the case against Fox, Wilson called the Dairy Coalition, saying he was a reporter doing a story on rBST and asked if anyone knew anything about the rumor about a Tampa TV station shutting up its own reporters (Akre, 2002, p. 47). Oblivious to the connection, Dick Weiss, the coalition‘s director, laughingly bragged about ―snow[ing] the station with piles of paperwork and all sorts of pressure to have the story killed‖ (Akre, 2002, p. 47).

5.5.2 Dairy Threatens a Disparagement Suit

As it turns out, the letter issued by Wright and the Dairy Farmers Association is an indicator of much larger complications of what could have arisen had Fox chosen to air the story. The letter, addressed to Daniel Webster, at the time the station‘s new news director, was sent to ―express concern‖ over one of the station‘s reporters, ―Jane Acre‖ [sic] and her story on BST treated cows (Wright, February 21, 1997, p. 1). Wright said Akre called him and asked ―leading questions‖ and clearly had ―preconceived notions about our industry in Florida,‖ making it clear that she was working on an ―anti-rBST story‖ (Wright, February 21, p. 1). While he posited that Akre‘s story was also clearly on the negative risks of the supplement on the cows, he openly contradicted this notion, saying that the milk had never been safer, and dairies in Florida worked hard using ―sophisticated laboratories to test the milk‖ (Wright, February 21, p. 1). Wright suggested that if Akre was really concerned with the public interest, she should instead cover the ―tough economic times‖ facing Florida dairy, how milk was being dumped onto the southeastern market, and how these actions had threatened the industry‘s ―financial viability,‖ ending the page

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with an outstanding, ―That is the real story‖ (Wright, February 21, p. 1). Because of the significant strain facing the market, Akre‘s work was ―gaining notoriety‖ among the larger industry, and the word was clearly ―out on the street‖ that she was on a ―negative campaign‖ (Wright, February 21, p. 2). Concluding the letter, Wright states,

should our worst fears come true, I request the opportunity to counterpoint her arguments. In the post- Food Lion era, I would hope that the days of a television reporter being interested exclusively in evidence to support the story, rather than objective reporting, would be over. However, I do not believe that to be the case in this instance. (Wright, February 21, p. 2)

However, Wright‘s letter to Fox is not the only evidence pointing to the possible threat of a disparagement suit. During his deposition with the court, Wright, also a licensed lawyer in the state of Florida, makes explicit reference to the agricultural disparagement statutes (Deposition of J. Wright, 1999, p. 78). During his questioning Wright was asked why he did not write a follow up letter to Fox after having received no response for the original (Deposition of J. Wright, 1999, 1999, p. 78). When Wright responded that the story never aired and therefore he had no reason to be concerned, Wilson, acting as his own lawyer at the time, asked a critical question (Deposition of J. Wright, 1999, p. 78). Wilson asked, ―But weren‘t you concerned that [the story] might air any day and your views would not be heard when you had no evidence that anybody had received your letter?‖ (Deposition of J. Wright, 1999, p. 78). Wright responded with the tenacity and knowledge of both an insider of the court and an insider of the farm. His retort was,

No Mr. Wilson, I‘ll tell you why. There is something called the Food Disparagement Act in Florida. It may have been enacted after the Alar apple scare. And I put [the station] on notice. As far as I‘m concerned I put Channel 13 on notice. If they would have come out with the hatchet job that I feared they were going to on this story, I would have been prepared to sue Channel 13 under those auspices as I sit here as a layman. (Deposition of J. Wright, 1999, p. 78)

The letter sent by Wright and the Dairy Farmers Association of Florida and Wright‘s deposition both contain convincing language of a threat of an agricultural disparagement suit. In

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turn, the propensity of this threat to materialize into an actual case likely influenced Fox‘s decision to withdraw ―The Mystery of Your Milk‖ from the air, and as a result, the letter and deposition become solid illustrations of the rising popularity in using agricultural disparagement suits to prevent agricultural products from being criticized and harming agricultural profits. More importantly, the probability that this case would make it to court and the factors it would have been sought under are clear illustrations of the criticisms found in critical legal studies. In this case in particular, the individual-collective dichotomy, scientific uncertainty, and uncertainty about the interpretations of the court would play a critical role in keeping Fox from wanting to fight for its free speech.

While Wright states in his deposition that he did not tell anyone about his intent to sue under disparagement at the time, as a member of a collective he would have had a large amount of support if a case were to materialize (Deposition of J. Wright, 1999, 1999, p. 79). While in theory the laws should protect ―small farmers,‖ often one angry ―small farmer‖ can collectivize his interests (Soley, 2002, p. 116). As Wright points out, even when ―peace loving‖ people are pushed, they ―push back‖ (Deposition of J. Wright, p. 79). When questioned in his deposition, Wright revealed that before he sent the letter he passed it by his cooperative, a place where his concerns could have easily been spread to the 250 dairy Florida farmers representing ―half a billion dollars a year in raw milk‖ (Deposition of J. Wright, 1999, p. 111). When asked if he sent a copy of the letter to Monsanto, Wright responded, ―I probably sent them a copy of this letter, although I can‘t say for sure sitting here,‖ (Deposition of J. Wright, 1999, p. 79). Wright‘s membership in a cooperative with collective interests, Monsanto‘s noted presence at the conferences these farmers typically attend, and the largely Monsanto-fed flow of information farmers have about rBST, illustrate that the interests of dairy in Florida offered the potential for more of a big shove than a little push (Deposition of J. Wright, 1999, p. 32; p. 111).

However, Wright was not the only one implicated in the collective rights of a system that in theory should put the protection of the autonomous individual first. States have also become subject to industrial camaraderie, as economic interests become just as stringent if not larger concerns than those of the individuals in the public and media wishing to bring forth food criticisms. The state of Florida, for instance, would have to consider the potential effects of the dissemination of information on such a scientifically contested product as Posilac, weighing

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justice according to how the public interest would be served best. These considerations can often weigh contradictory rights, such as the need to protect free speech from repression, the need to maintain the interests of Florida dairy farmer profits and avoid false criticisms, or the need to prevent the economic downfall of the Florida agricultural economy after a false food scare such as the one in Texas. The need to protect economies is actively worded in Florida‘s agricultural disparagement statutes. According to the Florida Violations of Certain Commercial Restrictions Disparagement of Perishable Agricultural Products Act,

production of agricultural food products constitutes an important and significant portion of the state economy and that it is imperative to protect the vitality of the agricultural economy for the citizens of this state by providing a cause of action for agricultural producers to recover damages for the disparagement of any perishable agricultural product. (§ 865.065(1), 1997)

While many may expect that in the liberal legal system the supreme right would be free speech, as Morant (1994) points out, judges must consider whether individual expression should be limited when the collective interests of receivers stand to be harmed, either ideologically or economically (Morant, 2004, p. 14). Finally, it is critical to consider the technicalities of the law. The idea that ―Any producer or any association representing producers of perishable agricultural food products which suffers damages as a result of another person's disparagement of any such perishable agricultural food product may bring an action,‖ in short means that milk farmers, ice cream makers, and even the companies who make the products that affect dairy or dairy products would be entitled to damages as well (Florida Violations of Certain Commercial Restrictions Stat. Ann. § 865.065(3), 1997). The list of possible plaintiffs, therefore, would have the potential to be endless, making awards and costs to fight the suit even higher than a typical case involving several ―small farmers‖ would be. Fox was likely entirely aware of all of these issues, and as a result had to fear both the ability of large groups to back an expensive disparagement suit and the economic interests the court weighs against the importance of the contested story.

A second factor that Fox would have to fear in its consideration of the possible disparagement suit would be the notion that the science behind rBST‘s safety has been highly contested throughout the entirety of its dispersal. Industry and many insiders involved with the making of the supplements maintained the products safety. Posilac proponents claimed that it

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wasn‘t that ―there is a real issue with the science,‖ but instead that protests were limited to ―economic issue[s]‖ (Deposition of J. Wright, 1999, p. 54). There were contradictory opinions over whether the milk was the same (Cusimano, 2009, p. 1099; Stauber, 1999, p. 125). There were questions of whether rBST would cause cancer in humans, and about the majority of the released science at the time (Akre, 2002, p. 40; Achbar, 2003, n.p.; Hansen, 1998). In short, the uncertainty over legal interpretation was highly influenced by the fact that the scientific studies were not only new, but limited to few select and seemingly suspect sources. Had an agricultural disparagement suit been sought, at the time there was little solid evidence in support of either party. However, Monsanto‘s influence over the FDA‘s research through political economic ties could have likely contributed to the fear Fox had over how presented evidence would or would not favor Akre‘s story. Under the liberal legal system, science is traditionally embraced because of its ability to find facts that can be governed neutrally (Streeter, 1990, p. 53). Even if the judge were capable of governing neutrally, often science is not only contradictory, but also notably lacking enough research to come to significant conclusions over the validity of a statement. The problem, as Soley (2002) points out, is that, ―scientific evidence is cumulative, not definitive,‖ meaning that the requirement of speakers to present reasonable scientific evidence to support their claims can often be ―difficult if not impossible to do‖ (Soley, 2002, p.130).

A final critical consideration in the reasons why Fox may have feared a possible disparagement case is that litigation, quite simply, is expensive, time consuming, and uncertain even if one is positive that the statements in question are valid. As Fox‘s lawyers continually pointed out, the story simply wasn‘t worthy of the costs of the litigation (Akre, 2002, p. 48). Even though the liberal legal system is made to protect free speech, Fox, like many others, was likely aware that jurisprudence‘s complexity can create uncertainty in the legal process and in turn this makes the act of speaking out not ―worth it‖ to every speaker (Hutchinson & Monahan, 1984, p. 199; Schauer, 1978, p. 687). Even though Fox did have a set of lawyers to interpret the legal process for them, ultimately uncertainty faces all plaintiffs and defendants, no matter how extensive their legal expertise, and the fear of erroneous verdicts makes even multimillion-dollar corporations susceptible to the power of a SLAPP suit (Ogle, 2007, p. 71).

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5.5.3 Media Chill: The News Stifles Itself

Unbeknownst to Akre and Wilson at the time, Fox had major interests in preserving its relationship to the industrial food world for several reasons other than the fear of an agricultural disparagement suit. Contrary to Walsh‘s assertion that Monsanto and Fox‘s common interest was ―establishing the facts,‖ the pair in reality had a menagerie of related investments and interorganizational ties (Walsh, February 21, 1997, p. 1). As Akre (2006) points out, ―The final issue regarding the state of the media today is self-censorship by people working in newsrooms‖ (p. 559). There are several critical implications within Akre‘s case that must be considered in order to understand the incentives for the media to stifle itself, all of which find interesting ties to the criticisms formerly highlighted in discussions of the political economy of media.

One of the first major factors news organizations must consider in their dissemination of critical information is a story‘s possible effect on advertising. Initially, the piece produced by Akre and Wilson was chosen to run during a ―sweeps‖ period when advertising rates are set (Akre, 2002, p. 41). As Akre (2002) points out, stations are looking for stories that grab attention and the concomitant effect of gaining the greatest amount of viewers to deliver to advertisers (Akre, 2002, p. 41). According to Cooper and Roter (2000), the newsroom idea of gaining viewer attention by utilizing the popular mantra, ―if it bleeds it leads,‖ actually applies less to gore and more to relevance in terms of health related stories (p. 331). Stories that tell viewers how certain health information would affect them in the future, mention places that they go, or tell them how to improve their health were also key determinants of viewership (Copper & Roter, 2000, p. 228). Akre and Wilson‘s piece contained these elements, and the promo used to hype the story brought in viewer attention with the story‘s title: with the term ―mystery‖ appealing to drama, the term ―your milk‖ appealing to personal interest, and the piece‘s focus on local farmers appealing to specific sources of the viewers‘ milk (Akre & Wilson, February 24, 1997). For these reasons, the station initially highly promoted the controversial piece, hyping the scariness of food issues in ―The Mystery in Your Milk‖ and spending thousands of dollars in advertising dollars to do so (Akre, 2002, p. 41).

However, as Bagdikian (2004) points out, industry follows the conditions of ads by formatting media around ad space and creating content that is conductive to the ―buying mood‖ (Bagdikian, 2004, p. 241-243). If the story does not create a ―commodity audience‖ that

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complements the products being advertised, the story essentially has not done its job (p. 227). It is not surprising, therefore, that Monsanto would reject what it would see as ―dark content and hard hitting news‖ that would likely not convince consumers that their other products could solve the viewers‘ personal problems (Bagdikian, 2004, p. 241-243); in all likelihood, the story would have inevitably done the opposite. Fox had to consider the potential losses that would result from airing the critical story of Monsanto and its Posilac product. It was estimated during the trial that advertising from Monsanto in the form of Roundup or NutraSweet ads would have cost the station almost $50,000 (Akre, 2002, p. 51). While this amount is small for a station as huge as Fox, multiplying these losses toward the twenty-two other stations would have created a huge hole in the corporation‘s pocket (Akre, 2002, p. 51). The probability of massive losses for all of Fox‘s other networks and Sky Channel in Europe was admitted by Dave Boylan during litigation as a way that the original estimated loss $50,000 was an extreme underestimation of the damage that the story could have potentially inflicted (Akre, 2002, p. 52). The conflicting needs of Fox and wavering support of the story illustrate how simultaneous expectations of the media to act as both a watchdog of the public interest and successful business venture have proven counterproductive (Bagdikian, 2004, p. 231).

As a consequence, Akre‘s case is a perfect illustration of how even the most honest intentions of producers, journalists, and broadcasters will not ultimately determine the information the public receives, and how the need to lease advertisers makes even media companies willing to punish reporters whose stories to not flatter the profit making process (Bettig & Hall, 2003, p. 5). McChesney‘s (2008) assertion that the media take threats from advertisers seriously (p. 271) has been solidly proven in Wilson and Akre‘s lost battle to keep their story alive, as illustrated in Fox‘s willingness to ―edit or kill stories offensive to advertisers because media profits come from the sale of advertising, not sales of the medium to consumers‖ (Soley, 2002, p. 195). In the case of ―The Mystery in Your Milk,‖ the ―news hole‖ became more like quicksand. Akre and Wilson‘s story, originally promoted for its ability to gain audiences and advertisers sunk down into nowhere, lost and hidden from the mainstream public eye and any possibility of creating a rupture in the veil of ignorance Monsanto had so carefully woven about milk producing practices.

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Second, the events surrounding the dissemination and stifling of Akre and Wilson‘s story illustrate how not only do product selling corporations have million dollar budgets to attack reporters and stories they dislike, but often these corporations have significant ties to those in charge of making the news (Bagdikian, 2004, p. 176). In this case, the media owners placed pressure on key players within Fox to alter, avoid, or destroy content according to its ability to maintain parent profits. Not only did many of these directives strictly follow the wishes of Monsanto‘s threatening letters to Fox, but at the time of Akre and Wilson‘s case, Rupert Murdoch‘s Advertising firm, Actmedia, had adopted Monsanto as a client (Boothroyd, 1999). News Corporation was also under several of the same lobbying groups of Monsanto and its subsidiaries, including Parry, Romani, et. al., and Berger, Bockorny, et. al. (―Berger, Bockorny, et. al.,‖ 2010; ―Parry, Romani, et. al.,‖ 2010). Interestingly, Parry, Romani, et. al. was also a lobbyist for the International Dairy Foods Association at the time (―Parry, Romani, et. al.,‖ 2010). Bagdikian‘s (2004) ideas that the media have essentially become the corporation is illustrated in how corporate interests protective of Monsanto were ―not only hostile to independent journalists,‖ but likely also the wishes of WTVT‘s employers (p. 176). Fox Television Stations‘ president Mitchell Stern directed attorney Carolyn Forrest to ―take no risk‖ with the story; in short the remark was a demand to remove all information about Monsanto, the dairy industry, and anything grocers would find offensive or as an incentive to pull ads from Fox networks (Akre, 2002, p. 47).

Fox coincidentally attempted to keep other parties involved in the Akre story to protect the major interests of the company above the interests of public information. On the eve of Akre and Wilson‘s whistleblower case, former general manager Dave Boylan, who had offered the pair the bribe, was promoted to general manager of a Fox owned station in Los Angeles, the second biggest station of its kind (Akre, 2002, p. 51). Once again, the incentives of promotion were illustrated to be far more powerful than the incentives associated with the ethical production of news that protects the public interest.

The final possibility for a news network to stifle itself is that interorganizational interest between networks makes criticisms of any major player too high of a risk in the capitalist game. In addition to the lack of information presented Fox about rBST, any criticisms of the actions of Fox, Monsanto, or the harms facing the reporters and public were unlikely to receive in depth

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coverage from any other mainstream news outlets as well (Akre, 2002, p. 55). While Fox was busily slanting its coverage to make the company look honest and Akre and Wilson look disobedient (Akre, 2002, p. 54), Akre and Wilson‘s story was receiving almost no significant news coverage. Akre and Wilson were informed by an inside source working as a producer for CBS‘s 60 Minutes that although the show was sent to gather documents about the pair, the story would not be created because it was ―too inside baseball‖ (Akre, 2002, p. 55). While it would seem that finding a major news network guilty of attempting to slant the news would make it to the forefront of every media outlet‘s stories, in reality reporters from many outlets had completely neglected or ignored the intense litigation and verdict. According to Akre (2002), during the trial the New York Times had continually attempted to contact them for an interview, but later dropped the story to cover stories on the CBS series Survivor (p. 55). Another reporter from the St. Petersburg Times did offer some coverage, but when the story emerged only insidious remarks about the jury‘s disbelief over the station‘s bowing down to pressure from Monsanto made it to print (Akre, 2002, p. 55). The pair interpreted these events as a reflection of the unwritten rule between networks, that ―news organizations seldom turn their critical eye on themselves or even their competitors‖ (Akre, 2002, p. 55).

In part, this is indebted to Fox‘s close ties to many other media outlets. As Bagdikian (2004) points out, the media industry has become increasingly concentrated, and with five major firms operating most of the nations‘ media (p. 8), interlocking ties and overlapping boards of directors have become increasingly concentrated as well (Krantz, 2002, p. 1). When this concentration becomes intensified, and essentially all media outlets hold some interest in some other media outlet through a mutual interest in another corporation, the infinite web of the elite world mean that the media owned by business groups will likely not publish critical information about themselves (Bagdikian, 2004, p. 51; Dyck & Zingales, 2002, p. 121). The media‘s awareness of the connections of these power elites in turn can influence how and what media executives choose to run as feature stories, and not only for the sake of upsetting profits, but also upsetting potential business partners and friends in elite world (Bettig & Hall, 2003, p. 34). Not only has the control of public information by these powerful companies harmed democracy by omitting news that could mitigate profits, but also harmed citizen‘s awareness about the inefficiencies of the information production process itself (Bagdikian, 2004, p. 102). Class domination has been achieved by the creation of a conscious idea that the news does not have to

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tell the truth because of the potential harms associated with a governmental repression of the news (Bettig & Hall, 2003, p. 6; Jhally, 1989, p. 67; Marx, 1852, p. 71-77).

Unknown to most citizens who willingly consent to this system of rights, the news has willingly repressed itself in the interests of capital. Reporters such as Wilson "want to send a message to every reporter in America" that "you can stand up and do the right thing and not be destroyed in the process," (Dougherty, 2000, para. 36). But, the reality facing those working in the newsroom is that under the current legal system riddled with vast uncertainty and a media unwilling to receive these reporters‘ cries, goals like Wilson‘s are highly improbable, will have no platform, and come at a huge personal cost. Voices of reporters who formerly believed in the ability of the legal system to protect rights and the media to present public information have been thrown out with the bad beef.

The lack of media coverage surrounding Akre‘s and Wilson‘s case illustrates the complexity of the news today. The media as profit making organizations must consider advertising, the wishes of media owners, and the protection of the future success of individual reporters‘ prospects and the success of the media industry as a whole. Contrary to traditional notions of ethical journalism and the protection of the ―public interest,‖ Winfrey and Akre‘s struggles illustrate that in reality, any actions which could potentially mitigate profits are transgressions against the perpetuation of the future of the media, the food system, and the elite classes who benefit from the disparity of wealth and information. ―Inside baseball‖ has grown from the protection of the media to the protection of profit making as a whole, because many of the big players in the corporate conglomerate corporate world have all become ―business partners with each other‖ (Bagdikian, 2004, p. 9). These groups have illustrated that they are willing to work with each other to maintain their power, ensure mutual protection, and orchestrate the arguments facing today‘s society. They are consolidating not only themselves, but also the information and goods disseminated in the interest of the public, drowning out the diversity and authenticity of news and programming, changing science to product selling support, and moving our self proclaimed democratic and freedom loving society toward the nation of the one-sided intellectual argument (Leistyna, 2008, p. 3). ―The media are the last sacred cows‖ (Akre, 2002, p. 55), and ironically, large quantities of information about the harms

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of the processes, products, and news cover-ups concerning beef have been minced and minimized.

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CHAPTER 6 MILKING THE MEDIA: CONNECTIONS, CONSEQUENCES, AND CONCLUSIONS

Concerns about food following BSE and rBST have led many consumers to question how to best enact change in a food system many see as ―skewed toward the bad calories,‖ cheap ingredients, and out of the control of any regulation that could protect public interest (Schlosser & Kenner, 2008, n.p.). Food, among other things, has been a safeguard of the government, driven solely by the determinants of economics, shielded from transparent production to preserve profits, and most importantly, left out of the media when it faces criticisms that stand to stunt sales. The media attempting to answer the enormous question of how to change the food system to favor those consuming, rather than those who sell it, have reached many conclusions. Some say dietary change is necessary, other say eating local food will incite change, and some even ask that consumers support practices that will positively protect the workers‘ rights (Pollan, 2006; Pollan, 2008; Schlosser, 2001; Schlosser & Kenner, 2008). These optimistic ideas all have one underlying premise that has fallen short in terms of yielding citizen power in decision making: the notion that change alone can come from purchasing power, often known as ―voting with your dollars‖ for change.

However, the solution is not that simple. The stories of stifled food criticisms over the years illustrate that regarding the quandaries of challenging the current food system, it is not a lack of consumer power that has setback fair food movements. Rather, it is the ignorance of these problems that has consequently resulted in apathy among the majority of the American public. While there are some ruptures, rips, and tears in this veil of ignorance, the groups most affected by the problems facing the food system are still wearing the blinders industry has placed upon them, only finding a one way flow of information about the food they eat. The connections of Winfrey‘s and Akre‘s cases; the ties of these cases to consequent pressure placed on both the

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legal, food, and media systems; and the myriad of recommendations for evoking change all point to a need for a reevaluation of the current system. The political economic factors and uncertainties facing the legal system require amendments in favor of the public. The most critical of these amendments will be changes in how the media dish out information, and only then can the nation can finally confront what it‘s rationing on its plates. As Michael Pollan points out, ―it‘s an important battle for consumers to fight,‖ and the public needs to know ―what‘s in their food and how it was grown‖ (Schlosser & Kenner, 2008, n.p.). Now, more than ever, the public also needs to know how the corporate world has milked the media and institutions that affect free speech; the citizens, the consumers, and the public participants of today‘s society must not only become aware that food information is being suppressed, but also why and how.

6.1 Winfrey and Akre: From Similarity to Side Effects

From similarities to side effects, the stories and cases surrounding Texas Beef Group v. Winfrey (1998) and New World Communications v. Akre (2003) offer substantial insight into the current situation facing the food system and food criticisms. Most importantly, these cases illustrate that the greatest problems facing food today regard information rather than an inability to vote. The connections surrounding Winfrey and Akre‘s battles for free speech illustrate that past suits such as McLibel, Chiquita Banana, and Food Lion may be the derivative of systemic rather than incidental issues. Winfrey and Akre are the perfect spokespeople for how the uncertainties of the legal system can discourage food criticisms in the media, how the portrayal of a case can distract from a larger issue, and how in turn these occurrences can lead to larger societal ignorance of the ways speaker‘s and receiver‘s rights must battle against economic considerations.

6.1.1 Uncertainties of the System

The uncertainties facing the legal system have now reached a state of systematic shortcomings. Winfrey‘s and Akre‘s cases both set a standard for reasons to fear the legal process for several reasons. First, the litigation across both stories was both costly and extremely time consuming. Winfrey lost over $1 million and six years of her life before her case and its appeal were finally won (Schlosser & Kenner, 2008, n.p.; Soley, 2002, p. 123). Akre and Wilson

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drained their finances fighting the case, and while they were initially told that the case would cost $ 50,000 and take approximately a year to fight, most of their money was gone after the depositions; similar to Winfrey‘s cases, the series of appeals took almost six years to complete as well (Akre, 2006, p. 556). Both cases were won on highly stringent interpretations of legal concepts, with Texas Beef Group v. Winfrey (1998) and definitions of ―perishable product‖ and New World Communications v. Akre (2003) interpretation of ―adopted rules‖ verses simple ―rules,‖ illustrating how highly unpredictable jurisprudence can be.

Both Winfrey‘s and Akre‘s stories also illustrate the basic principles of a SLAPP suit, where corporations may sue, even if they know they can‘t win, ―just to send a message‖ (Schlosser & Kenner, 2008, n.p.). In Winfrey‘s case, the actual litigation was a form of intimidation, which was highly successful considering Winfrey‘s consequent carefulness and refusals to speak out on the case (Nestle, 2002). Akre‘s case, on the other hand, illustrates the ability of the mere threat of an agricultural disparagement suit to intimidate the media from criticizing food products. Fox‘s reluctance to publish the original story and upset Monsanto highlights how this form of regulation under the radar of the legal system allows the agri- industry to curb the dissemination of information that might harm profits before the information is actually released. In short, Winfrey‘s case set the example for the media, and Akre‘s case used the example to impose media self-censorship. In these cases, the uncertainty of the legal system was also manipulated purposefully by an industry well aware of the liberal legal ideological shortcomings. Those who have been affected by SLAPP suits similar to these see these situations with an insight that portrays the realities of the legal system. In these cases, ―lady justice had the scales, and you piled cash on the scales, and the one that piled the most cash on the scales and hired the most experts and the ones most willing to tell the biggest lies, that was the winner‖ (Schlosser & Kenner, 2008, n.p.). More importantly, in spite of the realities many of the defendants have incurred in such cases, often the messages portrayed by SLAPP only create fear rather than exposing the manipulative actions of companies. Such cases set examples that do not teach citizens of the tactics utilized by industry to hush free speech, and instead illustrate that fighting big media and big business simply is not worth the time and money, even to Oprah.

However the side effects of litigation do not stop short of what immediately affected each speaker following her cases. The results of the fears of litigation are still influencing television

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in a myriad of ways. As unveiled in the article, ―Monsanto and Fox, Partners in Censorship,‖ on the popular PR Watch website, only one month after Wilson and Akre filed suit, WTVT aired another story about rBGH by the investigative reporter hired to replace them (―SLAPP,‖ 1997). The new story contained no criticisms of Monsanto (―SLAPP,‖ 1997), a clear reflection of an attempt to maintain positive PR while still working under the lingering fear of angering major players in the food industry. Even actor Alec Baldwin could find no major platform to broadcast food criticisms in the documentary, The History of Food, which highlighted the political and economic relationships of the food system (Soley, 2002, p. 128). Baldwin attempted to get almost every major media outlet to finance the piece, but found that even Discovery Channel, A&E, the History Channel, and PBS refused to get involved (―On Movies, Money,‖ 1999, p. 20). According to Baldwin, while there was huge interest in the show, ―all these outlets, they're like, ‗Oh, God! We can't do that, because of that Oprah Winfrey beef lawsuit.‘‖ (―On Movies, Money,‖ 1999, p. 20).

Perhaps one of the greatest instances that illustrate the side effects of litigation is the fact that Winfrey‘s and Akre‘s cases had direct influences of media chill upon one another. While initially Akre‘s story was silenced as a result of the influence Winfrey‘s case set, when Akre was nominated as a possible candidate to be on the Oprah show, Winfrey feared another lawsuit and pulled the story. When a former friend of Akre‘s was working on the Oprah show as a producer, the idea to have Akre on a show about powerful women was initially well received, since Akre and her husband had recently both won Goldman environmental prizes (Adamoli & Cannon, 2010). However, when the Winfrey and the rest of the producers found out why Akre had won her prize, they quickly said ―no way,‖ and refused to even think about reliving the expensive and time consuming battles that occur when beef is discussed on television (Adamoli and Cannon, 2010). Although Akre admittedly understands the media giant‘s apprehension, the circumstances illustrate that even when journalists in mainstream media outlets do attempt to stand up for their stories no matter what the consequences, they will still face an inability to be heard (Adamoli & Cannon, 2010). Not only has Akre‘s case been shown to incur high costs in expensive court battles, but also high costs in the form of future personal losses, such lost future job prospects and a general exclusion from the mass media. These are factors that can highly mitigate any journalist‘s desire to speak out.

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6.1.2 Cattle Products and Interorganizational Interests

Winfrey‘s and Akre‘s cases are also clear illustrations of how United States regulatory agencies and institutions meant to protect the public ―are being controlled by the very companies that they‘re supposed to be scrutinizing‖ (Schlosser & Kenner, 2008, n.p.). The implications of political economic determinants on the legal system, the media, and the food system have all culminated in a way that systematically protects profits over principle. Winfrey‘s and Akre‘s cases both took place during the mid to late 1990s, and both the general atmosphere and several specific players of the time greatly contributed to the public speakers‘ troubles.

Outside of the already listed revolving doors seen in industry during Winfrey‘s and Akre‘s cases, additional information from the time also illustrates a general political atmosphere tolerant of industrial interests. For example, during the George H.W. Bush administration the chief of staff at the USDA was the former chief lobbyist to the beef industry in Washington, and the head of the FDA was the former vice president of the National Food Processors Association, and throughout the entirety of the Bush and Clinton administrations Monsanto held very close ties to several significant agricultural institutions (Schlosser & Kenner, 2008, n.p.). Both Winfrey and Akre were threatened with disparagement suits filed under laws that were largely indebted to the direct and indirect work of large and often connected beef and dairy producers and trade groups such as Cargill, the National Cattlemen‘s Beef Association, the National Food and Dairy Association, the National Milk Producers Federation, Phillip Morris and Kraft, Monsanto, and Cactus Feeders (Rampton & Stauber, 1997, p. 144). Considering that often these mergers are not concocted overnight, the significance of Monsanto and Cargill‘s ties in 1999 also becomes troubling in light of the ways interorganizational interests and large trade associations often band together to save industrial sectors from criticisms (Monsanto, 1998, p. 21).

Lobbyist and leader of Junkscience.com Steve Milloy has also played an interesting role in the circumstances surrounding both Winfrey‘s and Akre‘s cases. From influencing the language in the statutes in Texas to combating rBST criticisms through Junkscience sponsored projects in Florida, Milloy has clearly illustrated the ways interests and expertise are carried across cases (Goetz, 1997, p. 1; ―rBST-facts,‖ 2010). Milloy has been shown during the peak points of these cases‘ litigation to be highly associated key players such as Phillip Morris, Cargill, the National Cattlemen‘s Beef Association, Monsanto, and Fox (―Food Industry Lobby

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1998,‖ 2010; ―Lobby EOP Group 1999,‖ 2010; ―Query the lobbying disclosure act database,‖ 2010; ―Roger Ailes,‖ 2010).

Perhaps some of the most significant connections between the Akre and Winfrey stories are Rupert Murdoch‘s interorganizational ties. Rupert Murdoch sat as a long time member of the board of directors for Phillip Morris, a group indirectly tied to the adoption of agricultural disparagement statutes and the AIF, who was in turn also connected to the adoption of Texas APD statutes (―Rupert Murdoch,‖ 2010; ―Burson-Marsteller,‖ 2010). Fox and Phillip Morris were also later joined under the BSMG lobby firm in-between Winfrey‘s and Akre‘s litigation (―Food Industry Lobby 1999,‖ 2010‖; ―Rupert Murdoch,‖ 2010). In turn, Monsanto is adopted into the industrial interests game through Murdoch again, who holds interest in his firm Actmedia, which supported Monsanto as one of its major clients in the 1990s (―Rupert Murdoch,‖ 2010). It appears the dairy industry, the beef industry, and those associated with products that involve the agricultural products, particularly Monsanto and Cargill, have held ties throughout the entirety of such cases, illustrating the ways interorganizational interests can band together to influence legislation and consequently keep their products and profits intact. Now, the food companies are not only controlling ―what we eat and how we eat,‖ but also what we know and say about our food (Schlosser & Kenner, 2008, n.p.).

6.1.3 Distracting from the Larger Issues

A final critical side effect resulting from both the Winfrey and Akre case is that often litigation can distract from the larger issues surrounding each case. While the two cases contrast in the amount of media coverage given to them, they both ultimately appear to have received little coverage on BSE or rBST issues. In Winfrey‘s case, the fact that Winfrey was a media giant or that anyone would attempt to shut-up Oprah became issues of media frenzy, rather than drawing major criticisms to the processes surrounding cattle feeding. In Akre‘s case as well, rBST criticisms were not only covered up, but the case was turned into a major battle between a journalist and a network. According to Akre (2002), the case was actively portrayed as a labor dispute rather than a First Amendment issue (p. 58). While Akre‘s case did receive coverage in a few outlets that gave significant coverage on rBST and its safety, stories in platforms such as Penthouse’s were likely not seen by a large variety of viewers (Kamen, 1999).

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Additionally, very few news outlets covered the fact that in the midst of Winfrey‘s litigation and Akre‘s struggle with the news station, the Florida legislature attempted to amend APD statutes to more strictly protect dairy and genetically modified products involved in its production (FL H.B. 3015 Anti-Disparagement of Florida Cattle Industries Act, 1998). The amendments asked for changing the standard of agricultural and aquacultural product protections to ―Disparagement of perishable agricultural food products or cattle or cattle products,‖ interestingly reflecting the uncertainty of cattle‘s perishable product status within the Winfrey case (FL H.B. 3015 Anti-Disparagement of Florida Cattle Industries Act, 1998, p. 1). The bill, to be enacted in the October of that year, also highlighted the importance of preserving state economies, citing that ―it is imperative to protect the vitality of the agricultural economy and cattle industry economies for the citizens of this state by providing a cause of action for agricultural producers‖; this amendment also made it clear that both ―beef and dairy cattle‖ were to be protected (FL H.B. 3015 Anti-Disparagement of Florida Cattle Industries Act, 1998, p. 1). Had Akre‘s case reached a disparagement suit, Fox clearly would have had to fear the enacting of statutes with such easy burdens of proof for not only agriculture, but also anyone associated with the agricultural industry. These new statutes would also protect ―Any person in a cattle or cattle-product enterprise or industry‖ or any cattle ―industry, that suffers damages as a result of another person's disparagement of any such cattle or cattle product‖ (FL H.B. 3015 Anti- Disparagement of Florida Cattle Industries Act, 1998). Aside from the blatantly stated need to protect the Florida economy, the timing of the attempted adoption of these statutes, directly in the middle of Winfrey‘s litigation and Akre‘s impending legal battle, is incriminating evidence of the attempts of the state to protect agricultural sectors. The bill was never adopted because current statutes already protected these factors, but the initiative still illustrates the influences and direct consequences Texas Beef Group v. Winfrey (1998) and New World Communications v. Akre (2003) had on the legal system.

6.2 Pressure Has Permeated the System

It is critical to remember that Texas Beef Group v. Winfrey (1998) and New World Communications v. Akre (2003) are mere cases in the midst of dozens of other unpublicized and unknown stifling of food criticisms. The problems of censorship, SLAPP suits, and media chill are therefore not limited to incidents, but rather illustrations of systematic suppressions of free

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speech. In many other states outside of Texas and Florida, agricultural disparagement statutes and SLAPP suits have been used to prevent information about products from being released. One example of this attempt to keep food criticisms at bay shows that Akre‘s case was not the only illustration of Monsanto‘s intimidating influence. Starting in the early years of the Winfrey and Akre cases, Monsanto would use lobbying power to keep foods with genetically modified ingredients, sometimes known as ―Frankenfoods,‖ defined as identical to non-genetically modified foods (Margulis, 2002, p. 88; Soley, 2002, p. 13). The company successfully convinced both Congress and the FDA that as a result, there was no ―material justification‖ to label modified foods, with companies arguing that labeling the food would actually create unnecessary consumer concern and concomitantly unwarranted profit loss (Margulis, 2002, p. 88; Soley, 2002, p. 13).

As Akre points out, government is not the only public element that must be brought into the ―fold‖ of approval (Achbar, 2003, n.p.). Critics have argued that the lack of food information has been ―depriving consumers of important health information‖ (Margulis, 2002, p. 88; Soley, 2002, p. 13), but many are simply incapable of defending themselves in lawsuits. Vital Health Publishing, for instance, was in the midst of getting libel insurance for its book, Against the Grain: Biotechnology and the Corporate Takeover of Your Food, a book questioning the safety of genetically modified foods, but rapidly changed course midway through its release (Soley, 2002, p. 127). Similar to Akre‘s case, Monsanto had sent a letter suggesting that many of the book‘s statements were false, even though the company had never seen the manuscript (Soley, 2002, p. 127). Monsanto also pointed out that they could sue under the state‘s disparagement laws, and as soon as the publishers informed their insurance agent of the situation, the agent then refused to return their phone calls (Soley, 2002, p. 127). As a result, the book was never published by Vital Health Publishing (Soley, 2002, p. 127). Robert Hatherill‘s , Eat to Beat Cancer, had long passages removed from the manuscript that discouraged eating cattle or cattle products (Soley, 2002, p. 128). While the publishers admitted the science in the book was solid enough to defend the passages, once again the cost of litigation and possibility of a disparagement suit was the decisive factor in which passages would be left (Soley, 2002, p. 128).

In another example in Ohio, Agrigeneral, a corporate egg producer, sued the Ohio Public Interest Research Group (PIRG) and director Amy Simpson when she announced at a press

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conference that former workers were testifying that the company was mixing expired eggs with new cartons and reselling them to the public (Soley, 2002, p. 126). Even though the suit was dropped after NBC‘s Dateline exposed the practices on hidden camera, the damage was done, and the example was set (Soley, 2002, p. 126). Mess with agricultural producers and intimidation will soon follow, as Simpson points out: even if the defendant wins, ―it‘s enormously time consuming and a terrible psychological drain,‖ especially for people without the resources to defend themselves (Soley, 2002, p. 127).

However, the media are also fully aware of the pressure facing news outlets. In the era of the Winfrey and Akre cases, many news outlets openly admitted facing pressure not to air stories. In a study by the PEW Research Center for the People and the Press, the top issues journalists listed as facing the media were credibility, sensational coverage, corporate ownership, and too much emphasis on profits and costs (PEW Research Center, 2000, p. 5). When asked to what extent investigative journalists felt that owners influenced the decisions about which stories were aired or covered, over 60 percent responded that this was an issue that happed a great deal (PEW Research Center, 2000, p. 7). Fifty-five percent of investigative journalists admitted that they believed journalists purposefully avoid covering certain stories in spite of feeling that the news story was ―truly newsworthy‖ (PEW Research Center, 2000, p. 8). Another study conducted in 1998 at the University of Miami found that ―one out of every five news directors say some news stories that should have been covered in the past year were not covered specifically due to concerns about legal liabilities‖ (Winick, 1998, para 3).

The evolution of news distortion and agricultural protections in turn has created a climate hostile to consumer concern and protective of the interests of industry. It is critical to consider the implications that can arise from such cultural hegemony, as citizens are encouraged to keep quiet about issues that affect them in order to protect the economic sectors of their states and country. As Soley (2002) points out, ―had food disparagement statutes been on the books in 1962, when Rachel Carson published Silent Spring, a book about the hazards of DDT, she too could have been dragged to court, sued, and probably silenced,‖ especially because much of the scientific evidence about DDT was not published until after the book emerged (p. 130). The future of the nation‘s food also stands in jeopardy, particularly in regard to the rising questions and controversies about the safety of genetically modified organisms (GMO). Considering the

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history of the discussed cases, potential interpretation of APD and the ability of GMO information to be released will likely be decided by conceptions of risk. This relationship between public interest and risk is highly problematic when there is a lack of scientific evidence of harm. Here the deficiency of information benefits the producer and not the buyer, and while the science may tout the positive benefits of products such as GMOs, the track record of these decisions has shown a great need to rethink this harm-to-prove-risk equation. If studies surrounding GMOs are silenced, the United States may be reliving many of the harms that were incurred during the eras of loving praise for DDT and Agent Orange. Both producers and the government may ultimately regret decisions to withhold information that could harm earnings, because in the long run, not avoiding risky products might cost more to settle health problems than to simply take the profit loss. These two groups should consider the costs of withholding such information, seen in previous cases such as the mandated and highly expensive compensation the tobacco industries were required to repay the states and consumers greatly harmed by unknown health risks (Janofsky, 1994). The criticisms that illustrate the possible risks of such products are necessary in order to let the food system reflect the most accurate, transparent, and consumer interested research otherwise, the cheapest processes will be favored until they are proven dangerous or deadly. In this way, infringements on free speech can directly translate to infringements on health, and APD statutes and media‘s dissemination of information must consider these possible harms.

6.3 Mitigating the Citizen-Consumer Model

While Schlosser (2001) posits that ―the first step toward meaningful change is by far the easiest: stop buying it,‖ the reality is that this step will never happen unless people know that there is a problem with their food (p. 269). However, as Johnston (2007) points out, the citizen- consumer hybrid is contradictory (p. 229). Traditionally, the ideological base of the citizen is rooted in collective responsibility and faith in a social commons; here, everyone is an active and important participant in the public sphere and can make equal contribution to democratic decision making processes (Johnsen, 2007, p. 229). The notion of the consumer, however, is rooted in individual self interests; here, most importantly, power is based upon the wealth of individuals, mitigating the system of equal votes found in citizenship (Johnsen, 2007, p. 229). Therefore, these contradictory expectations and interests of the citizen and consumer create both

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an inability for someone to simultaneously fulfill these competing roles. Citizens wishing to change the food system will have to put their own economic interests as secondary, and consumers wishing to change the food system will have to surpass finding the best price or product that they desire and instead purchase what best suits the public interest.

Some people simply do not have the money to vote with their dollars; it is critical to remember that in a food system that so heavily has protected the interests of grain and cheap calories, ―to eat well costs more money than to eat badly‖ (Schlosser & Kenner, 2008, n.p.). Most importantly, the citizen-consumer model still rests on the idea that shoppers can make choices and support practices based on the information they receive about a product and their consequent decisions to buy or not buy that product. As this manuscript has illustrated, the concept of perfect information in the marketplace has been severely mitigated, leaving the power of the consumer to demand change to the limits of the choices they are given by the corporate world. The consumer society ideal in which purchasing can create ―the power to drive the economy by determining what goods and services‖ are available is not an entirely transparent equation (Johnsen, 2007, p. 242). The consumer and the citizen can no longer vote for changes or contribute to the regulation of food practices because APD laws and industrial interests have stunted the propagation of decision-determining information on labels, on television, and even in local news. Every shopping day is not an ―opportunity to cast a vote,‖ because in order to vote, the decision maker needs to have to have competing interests to reject or accept. Today, for many, the only known and affordable choice is industrialized food, because competitors who criticize agri-industry and its products have simply been taken off the ballot.

6.4 Recommendations and Expanding Future Research

The first recommendation in the movement for the food system is the need to ensure that these issues are better addressed in mainstream media outlets. Studies since the 1980s have shown that socioeconomic status is both ―associated with involvement-enabling political socialization‖ and that these ―higher status individuals are more likely to experience social settings that are informationally richer on many subjects (e.g., politics), than those of lower status‖ (Tam Cho, Gimpel, & Wu, 2006, p. 977). Another study by Baum and Jamison (2006) found that it was soft news that drew attention to ―relatively apolitical voters‖ (p. 958). Furthermore, their studies also concluded that ―non-elite‖ press sources such as Oprah could

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greatly contribute to democratic capabilities and citizen participation when acting in conjunction with the work of the more traditional and ―elite‖ press sources (Baum & Jamison, 2006, p. 958). Sources that tackle critical issues without the hard news focus may be the foot in the door that allows less educated citizens and those amongst lower socioeconomic strata to embark on greater education on their rights as citizens. By maintaining accurate information on health and food in more general media platforms, such as Oprah and Fox News, the disparity of information and concentration of food criticisms to areas of ―intellectualism‖ like the New York Times or documentary films can extend to those most in need of knowing the truths about their food. It is difficult to say whether information given by the American Dietetic Association is still reliable when the airfare, meals, and hotel expenses at conventions the group attends are all paid for in full by Monsanto (Nestle, 2002, p. 116). Issues such as these, illustrations of the interorganizational ties, and encouragements of learning to question information about food must become a part of the everyday media. There must be thorough coverage of these issues in outlets that will reach the majority of the United States population, or consumer health stands to be continually dwindled next to the interests of the food economy.

In order to avoid cases such as Winfrey‘s and Akre‘s and fight for free speech and better food, one of the greatest things that must be fought is concentrations of self-interested power. As Schlosser points out,

We‘re talking about power, centralized power, and that power is being used against the people who are really producing the food, like the farmers, the people who are producing the food, like the workers, and its being used against consumers, who are deliberately being kept in the dark about what they‘re eating, where it comes from, and what it‘s doing to their bodies. (Schlosser & Kenner, 2008, n.p.)

A second major recommendation for confronting the current disparities of food information is therefore that there is a need to reconsider many of the powers of interorganizational interests in the political process. According to Soley (2002), one of the major ways these side effects can be stopped, particularly in states where agrifirms have ―a major lobbying presence,‖ is to enact major campaign finance reform, which would significantly lessen the ―political clout‖ of these groups (p. 133). By redefining these relationships and their roles in the policy and law making processes, interests can once again reflect consumer concerns. While in many aspects the

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interests of industry can concomitantly affect the interest of state agriculture and in turn the interests of consumers, the nutritional needs of the public far outweigh the needs of economic sectors.

Akre and Wilson have both petitioned the FCC to deny the WTVT station a renewal of license under their ―news distortion policy‖ (Lau & Wines, 2005, p. 146). However, considering the current state of FCC regulations and the ways the state interpret ―rules‖ and ―adopted rules‖ in the protection of the public interest, it appears that as a third recommendation, the relationships of policy and law must be redefined. As Bisignano (2009) points out, giving the FCC‘s policy against the intentional distortion of news more enforcement capability could aid in the pursuit of better broadcasting, where at least whistleblowing ―should be read broadly enough to recognize this policy‖ (p. 747). ―Whistleblower protections should be extended to protect employees within a broadcasting company who report incidents of the deliberate distortion of news,‖ and encourage reporters and employees of broadcasting companies to report news distortion abuses, because it is an issue that deeply concerns the public welfare (Bisignano, 2009, p. 778). By adding a public interest standard to civil procedure ethics, the rights of those who are best served by litigation can be redefined (Soley, 2002, p. 264). In turn, ―private censorship would be reduced because the public interest is almost always better served by releasing and discussing, rather than suppressing information‖ (Soley, 2002, p. 264).

Winfrey‘s and Akre‘s cases have both actively illustrated the need to seek alternative means of changing the dissemination of information and the gaps in the distribution of healthy, untainted food. As Nestle (2002) points out, while the ideas of movements such as ―slow‖ and less processed food, that ask people to begin change at the dinner table, are noble, adopting such principles comes at a high cost to consumers and do little for those who cannot afford to change their diets. ―That is why voting with our forks must extend beyond the food choices of individuals to larger political arenas‖ (Nestle, 2002, p. 374). As Nestle (2002) points out, ―The ability to exercise democratic power holds much hope for achieving a more equitable balance,‖ and it is the media‘s role which must be revitalized in order to regenerate public decision making in the currently industrially subjugated public sphere (p. 374).

Future research should therefore consider many of these recommendations and seek ways to more clearly define the relationships surrounding the food system and tactical use of SLAPP

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suits. The side-effects of industrial influence on the food system and on the media have both been addressed, but little attention has been given to the combination of these factors. While there is a need to analyze the direct ways that industrial influences affect the dissemination of information about all products, food, unlike a stereo or a set of shoes, holds particularly critical implications for the public, good, public health, and the rights of the public to determine the distribution of products and information. Studies of groups unable to ―vote with their dollars‖ and the means by which these groups receive information about food would also provide indispensable information about how to protect food criticisms in more mainstream media outlets. When lower income groups tend to not be able to afford the organics or the apples, it is critical that they still receive the information about their food, so that poorer segments of the population can join with groups who can afford healthy food; in turn, the public can overthrow the political clout and lobbying power of the food system, and form the critical mass necessary to demand change. Asking for better food processes to be supported simply by eating habits is an ineffective means of mandating change. Considering the mass movements of the past decade toward more obese populations, mandates in more public health care, and rising concerns over the labeling and the health effects of genetically modified food, swift action and large scale resistance will more ably enact change and address public concern than taking baby steps. There are far more people consuming the food than those producing it, and the public is wholly able to become the Goliath that can fight the titanic interests of industry. Future research should also therefore consider the power of alternative food movements, and determine if groups that fight for media education can join with groups fighting to educate the public on the real processes surrounding their food.

6.5 Conclusion

As Jane Akre points out, ―Journalism is having a struggle right now, and if the public doesn‘t know what it‘s missing, it won‘t get better‖ (Adamoli & Grant, 2010). The United States is living under a dichotomy of conflicting interests. While the notions of power of the democratic citizen in concerned society, the informative media that encourage decision making, and the food system that reflect consumer interests are alive in the basic structure of the legal system and the ideology of the public sphere, the reality is that institutions today are far different than their inspirational counterparts. Although the literature considers constitutionality as the supreme and

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deserving right (Bederman, 1998; Bederman, Christensen, & Quesenberry, 1997; Bell & Lowe, 2000; Fell, 1998; Hagy, 1998; Lynch, 1998; Hansum, 2000; Semple, 1995; Wasserman, 1999), it fails to consider the reality of the liberal legal system. The perils facing food free speech through agricultural disparagement statutes are immense, but considerations of constitutionality will not ultimately address the way these laws violate the First Amendment and the indirect consequences of media chill. Critical legal studies illustrates the atrocities being wrought against the media and common man by positing that problems do not primarily stem from the lack of rules or mechanistic flaws regulating the system, but rather that legal theory itself in its underlying philosophical and structural components is to blame (Hutchinson & Monahan, 1984; Streeter, 1990). The APD law crisis is indebted to a fundamentally flawed legal system, lacking both a foundation stable enough to support its own initiatives and a consequential inability to be easily interpreted or trusted by those whose rights it is protecting. Inherent faults in the individual-collective dichotomy, linguistic construction, contradictory science, legal neutrality, and liberalism‘s self corrective measures illustrate how constitutional analysis and protection in agricultural disparagement can cease to prevent chill and perpetuate uncertainty. The need to have a legal degree to understand the basic principles of the legal system and APD statutes perpetuates a fear of the legal process‘s costs and uncertainty, preventing confident discussion of food issues in the media, and thus making speakers highly unlikely to speak out. There must be a more critical analysis of the agricultural disparagement statutes, one which offers more permanent solutions to problems surrounding the criticisms of fouled fruit or virulent veggies.

The political economy facing the legal system has in turn resulted in political clout and the preservation of future job interests and profits. The political economy facing the media is responsible for deterring the dissemination of information that will not attract advertisers, upset shareholder and owner interests, or even criticize the disparities of a social system that keeps the distribution of power and wealth at the top of the upper echelons of the elite. The political economy of the food system has driven information about food into the meat grinder, mincing the truths and falsities surrounding agricultural and production practices into an order of unhealthy food, an ethic of ―eat more,‖ and an idea that if risk has not been portrayed, economics should be protected by leaving citizens in the dark about their food.

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The combination of the fundamentally flawed legal system and interorganizational interests has led to both criticisms and confusion, as one portion of society is attempting to educate the public on the harms facing the legal, media, and food system, and the other portion is unable to access these criticisms. The New York Times, the Nation, Corporate Watch, blogs, and documentaries are typically sources that generally appeal to levels of higher education and smaller, more privileged groups of society (Baum & Jamison, 2006; Tam Cho, Gimpel, & Wu, 2006). Winfrey‘s and Akre‘s cases have illustrated that when more mainstream media outlets attempt to criticize food, they are highly subject to the interests of the political economy and the ways corporate interests have become able to utilize the legal system to repress free speech. Many are unaware of how blatantly companies are attempting to hush food criticisms. While the documentary Food INC (2008) may have received notoriety as an Academy Award nominee, the fact that the documentary faced constant threats of being silenced was given little attention (Senso, 2010, para. 1; Solomon, 2008). As Robert Kenner points out, in a world in which ―agribusiness doesn‘t want us looking inside their kitchens,‖ even making a documentary about how food free speech is being stifled results in attempts to sue or scare a public speaker out of speaking out (Solomon, 2008, p. 1). The fact is that while many in the nation know that there are problems facing their food, the majority of the public are wholly unaware of why they don‘t hear much about it. The nation must become aware of the ways this information is being kept out of the public eye, and only then can they become critical themselves of the processes surrounding their food, the information they receive about food, and the media as a business has been manipulated by corporate interests and the need to safeguard income.

While some would point out that the irony is that consumers do not feel powerful, thinking that they are recipients of whatever food industry places forth for them to consume, the reality is that this speculation is only the tip of the industrial iceberg (Schlosser & Kenner, 2008, n.p). The real irony facing the consumer-citizen is that unless they know what is wrong with their food and how this information is being withheld, they yield relatively little power in decision making because there are a lack of visible issues to vote over. Change must come from a reinvigoration of all of the processes surrounding food, and one of the most critical of these processes is the dissemination of information about food products, including both commendations and criticisms. The mass media must confront the disparities facing the distribution of information, and considering the current concentration of the media industry and laws that can negatively affect

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the newsroom, these changes will come at great costs and with a need for great perseverance. However, as Akre and Wilson point out, there is still some hope for the newsroom and the mass media. Akre (2006) proudly states that,

We still believe in television and its potential. We still believe that the kinds of environmental stories that need to be told can be told and often are best suited for television. Television can do things that print cannot, and a picture truly is worth a thousand words. We encourage people not to give up on reporters in general and television reporters in particular. Some reporters can still occasionally get a decent story on the air. (p. 561)

When those most affected by the suppression of information in the current media can still hold expectations for a better system of public participation and learning through television, this clearly illustrates that there are some members of the system willing and capable of fighting for change. The fights these public speakers are fighting and circumstances surrounding their efforts must therefore be highly publicized in order to create a critical mass that can push through the political clout and tightly interwoven elite interests mitigating the media. When both citizens and journalists are aware of the problems they face, they are better able to both demand and vote for processes that can better suit their needs.

Without addressing the systemic problems facing the current legal, media, and food making institutions, cases such as Winfrey‘s and Akre‘s will continue to happen. Their stories illustrate that the research must be expanded and that the problems facing APD statutes and the dissemination of public information are not indebted to constitutional issues, but rather a legal system inherently riddled with uncertainty and food and media systems attempting to suppress information by any means that protects profits. The people must be encouraged to combat larger processes affecting the food system, and this must be done with the aid of their democratic watchdog and public informant, the mass media. In order to stop corporations from milking the media and manipulating the legal process to only benefit the interests of industry, a reinvigoration and reconsideration of the processes surrounding the creation of laws, the creation of media, and the creation of food must be re-grown and nurtured with more wholesome, honest, and citizen-concerned ethics.

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1 Current States containing Agricultural Disparagement codes include: Alabama (Alabama Action for Disparagement of Food Product or Commodity §§ 6-5-620 to -625 [1996]); Arizona (Arizona Agricultural Protection Act Rev. Stat. Ann. § 3-113 [1995]); Colorado (Colorado Destruction of Food Prohibited Rev. Stat. Ann. § 35-331-01 [1999]); Florida (Florida Violations of Certain Commercial Restrictions Stat. Ann. § 865.065 [1996]); Georgia (Georgia Action for Disparagement of Perishable Food Products or Commodities Code Ann. §§ 2-16-1 to - 4 [1996]); Idaho (Idaho Disparagement of Agricultural Food Products Code §§ 6-2001 to -2003 [1996]); Louisiana (Louisiana Disparagement of Agricultural or Aquacultural Products Rev. Stat. Ann.§§ 4501-4504 [1996]); Mississippi (Mississippi Disparagement of Perishable Agricultural or Aquacultural Food Product Code Ann.. §§ 69- 1-251 to -257 [1994]); North Dakota (North Dakota Civil Liability for Defamation of Agricultural Producers Cent. Code §§ 32-44-01 to -04 [1997]); Ohio (Ohio Disparagement of Perishable Agricultural or Aquacultural Food Product Rev. Code Ann. § 2307.81 [1996]); Oklahoma (Oklahoma Disparagement of Agricultural Food Products Stat. Ann. tit. §§ 2-3010 to -3012 [1996]); South Dakota (South Dakota Liability for Disparagement of Agricultural Food Products Codified Laws §§ 20-10a-1 to -4 [1995]); and Texas (Texas False Disparagement of Perishable Food Products Civ. Prac. & Rem. Code Ann. §§ 96.001-96.004 [1996]). 2 The Cincinnati Inquirer was sued after launching a yearlong investigative report revealing Chiquita Banana‘s creation of secret business entities to avoid local land and labor laws, bribery of officials, and pesticide usages that harmed both workers and the environment (Nestle, 2002, p. 165). Since the reporters openly admitted Chiquita company voice-mail recording as a source, Chiquita lawyers accused the paper of illegal means, resulting in the newspaper‘s firing of the story‘s reporters and a defamation suit from Chiquita (Nestle, 2002, p. 165). The banana company never refuted the Cincinnati Inquirer’s findings (Nestle, 2002, p. 165). Later it was revealed that the judge who chose to pursue the case had received campaign contributions from Chiquita as well as the plaintiff‘s chief prosecutor (Nestle, 2002, p. 165). This case did little to spark concern about the integrity of the legal system, and as Nestle (2002) points out, the food industry‘s aggressive action and the media‘s low level of resistance ―revealed how high the stakes are in such investigations, perhaps convincing other editors that probing the practices of food companies cannot possibly be worth the price‖ (p. 166). Food Lion also won a suit against investigative reporters because the reporters worked at the company undercover with cameras, thus violating their contractual loyalty to the company (Akre, 2006, p. 584; Food Lion v. Capital Cities/ABC, 1999). 3 Industry, popular science, and the public refer to the hormones that produce greater milk production in cows under several different names. Bovine somatropin (bST) is the naturally occurring hormone produced in the pituitary glands of cattle. Recombinant bovine somatropin (rBST), is the synthetically derived version of this hormone and is sold under the brand name product ―Posilac.‖ Recombinant bovine growth hormone (rBGH) is another name for rBST. Currently Posilac is the only available bovine growth hormone on the market (rBST-facts.org, 2010).

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APPENDIX NUTRITIONAL AND POLITICAL FOOD MOVEMENT TIMELINE

1862- United States Department of Agriculture (USDA) created to ensure stable food supply and provide nutritional advice 1890- USDA starts sponsoring studies on relationship between agriculture and human nutrition Appoints W.O. Atwater as first director of research activities, publishes tables on calorie content, protein, carbohydrates, fat, and minerals in American foods. Atwater starts belief that American men need more food than Europeans because they ―work harder,‖ but also discourages the intake of fat and sugar 1909-USDA begins collecting information about basic food commodities

1912- Discovery of vitamins and start of emphasis on diets based on ―nutrients‖ 1915- USDA produced first pamphlets on nutritive values of food

1917- ―How to Select Foods‖- USDA issues first set of overall dietary recommendations as a 12 page pamphlet encouraging the intake of a variety of food groups but not restricting any foods considered harmful to health

1930- The Depression Era food guide reflects both a need to eat ―protective foods‖ rich in vitamins in minerals AND emphasized the increased agricultural importance of these foods 1933- New Deal Programs, particularly the Agricultural Adjustment Act of 1933, enacted essentially to attempt to stop farmers from growing too much food 1938- Food, Drug and Cosmetic Act imposes requirements on labeling artificial and imitation foods 1940- U.S. National Academy of Sciences forms a committee that advising government on nutritional problems that could potentially affect national defense 1941- Food and Nutrition Board establishes Recommended Dietary Allowances (RDAs): finds nutritional standards for daily nutrient intake for the armed forces and general population based on eight nutrients and energy intake.

1942- Federal pamphlets instructed Americans to ‗do your part in the national nutrition program‘ (and support the home-front during the war) by eating foods from eight groups every day; four of these groups were milk, meat, eggs, and butter—all sources of fat and cholesterol as well as essential vitamins and minerals‖

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1943- Wartime Food Nutrition Guide regroups food groups into seven- attempts to keep both nutritional balance and consider war scarcities by merging scarce commodity groups such as meat, fish, and beans into one large protein group 1946- Peacetime version of the nutrition guide released- recommends selections from just four groups, claiming in times of emergency to ration scarce groups and eat more of the plentiful 1950- Nutritional RDA standards for the military overshadow the basic nutritional measures of the general public

USDA begins working on nutritional guide based on the ―expertise‖ of industry 1954- The Agricultural Trade Development Act, or Public Law 480 developed: basically a ―free gift‖ to needy foreign countries that allowed surplus stocks to be sold internationally at low prices, and then the profits funneled back into the country for development purposes and humanitarian aid 1953-1960: Agricultural exports increase from $3 billion $5 billion in 1960 1958- The Basic Four is released to establish minimum levels of food servings to prevent nutritional deficiencies 1964- Food Stamps Act permanently assured the USDA of its ability to regulate and protect the interest of citizens facing food poverty 1965- Food and Agricultural Act creates four year commodity programs for grain and cotton Late 1967- CBS documentary Hunger in America brings national attention and outrage over the malnutrition problems facing disparate U.S. populations July 1968- Senate Select Committee on Nutrition and Human needs chaired by South Dakota Senator George McGovern crated to eliminate malnutrition 1969- White House Conference on Food, Nutrition, and Health- discusses nutritional deficiencies in US as well as health problems of the ―adults in affluent society‖ 1972- Russia purchased 30 million tons of American grain, a sale Butz had arranged to tempt farmers away from supporting McGovern and his more transparent, less production oriented policies

1973- 1973 Farm Bill, or Agriculture and Consumer Protection Act, replaces the Ever Normal Granary‘s grain loan system and price supports with target prices and deficiency payments, low commodity loan rates, and a subsequent increase of producer reliance on markets to allow for free movement of commodities at world prices Early 1977-Dietary Goals of the United States- Senate Select Committee on Nutrition and Human needs issues set of dietary guidelines calling Americans to cut the consumption of red meat, dairy products, alcohol, sugar, salt, and fat. Encourages eating more grains however.

Late 1977- Dietary Goals of the United States revised: after industrial criticism the committee‘s recommendations, Dietary Goals for the United States was ―hastily rewritten‖ and ―reduce consumption of meat‖ is replaced with ―choose meats, poultry, and fish that will reduce saturated fat intake.‖ New language reflects emphasis on nutrients rather than food.

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1979- Healthy People, a report from the surgeon general intended to encourage a second public health revolution is released

Food is also released, is most popular publication to date but also last to say ―eat less‖ red meat 1980- Senator McGovern loses election 1982- National Academy of Sciences Report helps codify nutrient based dietary language

(Nestle, 2002; Pollan, 2006; Pollan, 2008; Schlosser, 2002)

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BIOGRAPHICAL SKETCH

Lauren Asmus Lauren Asmus grew up internationally with an active interest in food and cultures. In the Spring of 2008, she completed her Bachelors degree in International Relations at The University of West Florida. Lauren‘s research interests include food and environmental issues in the media, documentary film, media regulation, political economy, children‘s programming, and social movements.

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