ABC Lawyer: "Pink Slime" is "Rhetorical, Hyperbolic Expression"

Elk Point, S.D.The lawyers on Tuesday presented their arguments in Union County Circuit Court on whether or not a defamation lawsuit should be dismissed against ABC News.

Now, it's up to Judge Cheryle Gering to decide whether the $1.2 billion complaint filed by Beef Products, Inc. (BPI) should be quashed in a case that ABC declared is a significant one for the media.

"What is at stake is the freedom of a news organization and individual citizens to report on matters of public interest without the fear of being subjected to the uncertainty, burden and risk of litigation," ABC attorney Kevin Baine told Gering in court Tuesday during a nearly four-hour hearing, the Sioux City Journal reported.

Erik Connolly, a lawyer representing Dakota Dunes, S.D.-based BPI, argued that ABC cannot hide behind the First Amendment in this case.

The First Amendment does not protect what these defendants did. These defendants engaged in a prolonged and extensive disinformation campaign," he said during the hearing. "They published 190 false statements. They knew their statements were factually inaccurate. They knew their statements were causing a consumer backlash based on false information."

To succeed on a defamation claim, BPI must "prove that ABC published a false and defamatory statement of fact and that they knew it was false or had serious doubts at the time they published or broadcast in this case," Laura Handman, a Davis Wright Tremaine lawyer whose clients include CNN and Hearst Corp., told Food Product Design last year.

Pink Slime

Several ABC reports referenced BPI's lean finely textured beef as "pink slime", creating a debate as to whether such a term is protected speech. Pink slime was used 137 times over a month-long period, according to BPI.

Michael Jacobson, executive director of the Center for Science in the Public Interest, a consumer advocacy group on food safety and nutrition, acknowledged in a statement that "'pink slime' is not a particularly appetizing term."

"But free speech certainly trumps a meat companys public relations problem," he said, urging dismissal of the case.

In court papers filed last year, ABC argued the term "pink slime" is "inherently a subjective assessment that it does not give rise to a legal claim." That's because it cannot be proven to be a false statement and therefore is protected language, lawyers for ABC posited.

"Pink slime is exactly the sort of 'lose, figurative, or hyperbolic language' that courts recognize demands protection under the First Amendment," they wrote.

ABC reiterated those arguments during the hearing on Tuesday.

Our point is simply this. The defendant had as much right to use the epithet pink slime as the producer has to use the euphemism lean finely textured beef," a lawyer for ABC told the judge. It is rhetorical, hyperbolic expression that does not convey any factual content at all that is alleged to be false."

BPI lawyers have countered in court documents that the term is not protected speech in this case because it implied false facts, including the misrepresentations that BPI's product is neither actually beef nor safe for consumption and "has little to no nutritional value".

BPI has accused ABC of misleading consumers into believing its meat is unsafe, costing about 700 employees their jobs, resulting in the closure of three BPI facilities and pummeling sales. According to the company, its product is safe and 93-97% lean, consisting of lean beef that is trimmed from ribeyes, sirloins and other whole muscle cuts of beef. 

The lawsuit has named as defendants American Broadcasting Companies, Inc., ABC News, Inc. and its journalists Diane Sawyer, Jim Avila and David Kerley. Others defending themselves in the case include Gerald Zirnstein and Carl Custer, two former employees with USDA's Food Safety and Inspection Service; and Kit Foshee, a former quality assurance manager that was fired by BPI.