Whether the network libeled and defamed BPI and its product is now the subject of a $1.2 billion lawsuit. The standards for proving libel and defamation are high, but Beef Products, Inc., v. American Broadcasting Company, Inc., et al. — anchor Diane Sawyer and correspondents Jim Avila and David Kerley are also named in the suit — is shaping up to be one of the highest-stakes defamation battles in many years. (National Review has an important case of its own in the courts.)
The case is chugging along, and not necessarily in ABC’s direction. The network’s attempt to remove the case from South Dakota state court into federal court was denied in June. If the case goes before a jury, South Dakota-based BPI will have home-court advantage.
An ABC News spokesman declined to comment for this piece, and the network has said very little on the subject since it was hit with the suit.
Asked by Time magazine in 2011 how journalists refrain from showing emotion when covering overwhelming events, Sawyer said, in part, “We are not the story. Our feelings are not the story.” ABC’s coverage of pink slime, led by her and Jim Avila, might have led you to believe otherwise.
USDA regulations do not require that products containing lean finely textured beef be specially labeled, and Avila broadcast an initial report featuring a “whistleblower” who alleged that “USDA officials with links to the beef industry” were improperly labeling “pink slime” as meat. It had the look and feel of the opening salvo in a campaign against the product.
The New York Times had reported in 2009 on a debate within the USDA and the beef industry itself over lean finely textured beef and its main producer, BPI — in particular, over the effectiveness of the ammonia-treatment process the company employs to kill E. coli and salmonella; the use of the product in school lunches; and the tradeoff between the cost savings and reduction in quality. From ABC’s initial coverage, it would have been difficult to determine that there had ever been a debate.
Having raised the alarm, the network did its best to keep it blaring: It sent producers into grocery-store meat sections on March 8 to see if there was pink slime in the ground beef and asked the country’s top ten grocery chains if they sold it. “Our viewers want to know if pink slime lurks in the beef sold here,” Avila said on March 9. “Most couldn’t tell us for sure.” When the USDA declined ABC’s requests to respond to its queries on the record, Sawyer told Avila on the 9th, “Keep calling all next week. I’m going to be asking every day.” In subsequent broadcasts, the network named and shamed grocery chains that carried the product.
As stores reacted, Sawyer used her broadcasts to showcase her success. “We are getting action tonight,” she told viewers on March 14. The USDA, which purchases food for the National School Lunch Program, was set to announce that it would allow schools to purchase either less-expensive hamburgers containing pink slime or costlier burgers free of the product.
“Tonight, taking action,” she said a week later, on March 21, as some of the country’s largest grocery chains discontinued beef containing “pink slime.” On April 3 came the report that the government had taken “big action.” The USDA was amending its labeling rules to allow producers voluntarily to label meat that contained lean finely textured beef.
The court battle over ABC’s work is being waged, on both sides, by titans of the legal industry. ABC retained the ultimate Washington law firm, Williams & Connolly; the team of lawyers representing the network is headed by Kevin Baine. In the late 1990s, Baine successfully handled CNN’s libel lawsuits stemming from the network’s botched 1998 Operation Tailwind report alleging that the United States used nerve gas in the Vietnam War.
BPI has matched ABC’s legal firepower. Representing the company is Dan Webb, the chairman of the Chicago-based firm Winston & Strawn. He is the author of the Webb report, which, in 2003, revealed that former chairman and CEO of the New York Stock Exchange Richard Grasso had been overpaid $156 million in the job. It was Webb’s prosecution 20 years earlier that landed former national-security adviser John Poindexter behind bars for his role in the Iran-contra affair.
The network has filed motions to dismiss the suit on several grounds — among them, that “slime” is not a derogatory word by which to refer to beef. Lean finely textured beef, “much like all ground beef, is slimy,” ABC contends.
Both parties now await the judge’s ruling. If ABC’s motions are denied, the trial will proceed to the discovery phase, which would mean depositions for ABC’s news team. It would also mean, most likely, a lengthy court battle that would, implicitly, put the network’s journalistic practices on trial and raise questions about how far a network may go to dramatize a story.
Regardless of the law, though, the fact that ABC has found itself at this juncture at all says something about the trajectory of its premier program, World News.