Little did I realize in the late 1970s that the
first piece of the puzzle connecting my life with animal law had
fallen into place. I was a fourth generation farmer-rancher-feedlot
owner living on my great grandfathers homestead south of Great
Falls, Montana. At the time, I was feeding several thousand cattle
in a confinement feedlot operation. During this period, part of
my herd was infected with Thrombosis En Meningitis (TEM). The symptoms
included a high temperature that left the animal physically healthy,
but essentially brain dead. The infected animal did not know enough
to eat or drink and soon died. I lost approximately 10 percent of
my herd before the problem dissipated. Financially, it was devastating.
In 1990 the second piece of the puzzle appeared.
I was working in Washington, DC as a lobbyist for the National Farmers
Union, representing small family farmers. I heard reports of an
animal disease in Britain called Bovine Spongiform Encephalopathy
(BSE), better known as Mad Cow Disease. I thought at
the time that if it was anything like the problem I had experienced
with my herd, it could spell doom for American cattle producers.
I researched everything I could find on BSE, which
wasnt much. The disease was commonly thought to be a slow
growing virus or bacterial infection affecting the brain. The British
learned that the infectious agent would routinely survive 340 degrees
Celsius and seemed to have no RNA or DNA. With these properties,
BSE did not conform to a viral or bacterial infection. Some researchers
thought that a priona type of abnormal proteinmight
be the cause.
After researching BSE, I started speaking about
it to audiences in the U.S. as Director of the International Beyond
Beef Campaign. Little was known about BSE at the time. What was
known was that brains affected by BSE had holes in them, much like
Swiss cheese. Additionally, the disease had a very long incubation
period. Many thought that it was related to a disease in sheep called
scrapie, apparent in Britain for hundreds of years, which did not
seem to infect humans. At the time, both the U.S. and Britain were
feeding the remains of sheep and other animals to cows.
The first case of BSE in British cows was identified
in 1986. By 1990 it had become an epidemic. BSE was infecting over
one thousand cows a week in Britain. In March of 1996, the Minister
of Health, Stephen Dorrell, announced to a stunned Parliament that
the government could no longer assure the public that Mad Cow Disease
could not be transmitted to people. The announcement was an explosion
heard throughout the world.
I happened to be in England at that time to testify
in the McLibel trial. At that point, I was the director of the American
Humane Societys Eating with Conscience campaign.
While there, I did over 70 press events. The eyes of the world were
focused on Mad Cow Disease. When I returned to the U.S., I was contacted
by Harpo Productions to appear on the Oprah Winfrey show for a segment
they were planning to call Dangerous FoodsCould it Happen
By 1996, as the Mad Cow Disease epidemic was unfolding,
13 states had passed legislation called food disparagement laws.
This legislation made it a punishable offense to say anything you
knew to be false about a perishable commodity. These suits became
known as strategic lawsuit against public participation,
or SLAPP suits. Agricultural producers backed the enactment of SLAPP
laws in hopes of scaring off activists concerned about product contamination.
Knowing this, I agreed to appear on the Oprah Winfrey Show in April
1996. It has become an event that I will never forget.
The show was taped in Chicago where I met Oprah Winfrey for the
first time. I was seated on the stage with the grandmother of a
young English girl who was dying from the human form of a spongiform
disease called Creutzfeldt-Jakob Disease (CJD), suspected to be
caused by the consumption of cows with BSE (see Editorial), and
Gary Webber, a representative of the National Cattlemens Beef
Association (NCBA). The show began with a review of the history
of the disease in Britain. Oprah then turned to me and said, Heres
a man who believes that within 10 years we could have a disease
that could make AIDS (Acquired Immune Deficiency Syndrome) look
like the common cold. I answered, Absolutely.
Oprah replied, Thats a strong statement. I explained,
There are over 100,000 cows a year that are fine at night
and then found dead in the morning. They are rounded up, ground
up, turned into feed and fed right back to other cows. I further
explained that we are collecting road kill off the nations
highways that is also rendered into feed. Euthanized pets, full
of chemicals to euthanize them, are sent to the renderers. Los Angeles
alone sends about two hundred tons of euthanized pets a month to
become feed for our pets and food animals. We also know that the
euthanasia chemicals are not broken down in the rendering process.
Oprah was shocked as she turned to the representative
from the NCBA and asked if cows are being fed to cows. Dr. Webber
responded that a limited amount of this practice was occurring.
This prompted Oprah to state, That just stops me cold. I will
never again eat a burger.
Oprah did not encourage her viewers to not eat a
burger. She did not say that she thought the meat was contaminated.
She merely stated her opinion. During the show, I repeatedly called
for an end to the practice of feeding cows to cows. I thought that
if we continued the practice we could end up with the same problem
as Britains Mad Cow Disease epidemic.
During the taping of the show, the foremost expert
on spongiform diseases from the United States Department of Agriculture
(USDA), Dr. Will Hueston, was sitting in the front row. Oprah asked
him if what I was saying was true. He stated, Howard Lyman
is what makes America great. At no time during the taping
of the show did any of the representatives from the government or
the NCBA claim that what I said was false. To the contrary, they
admitted the practices were being used. During the taping, I never
said anything I thought to be false. I wasnt concerned when
the beef futures market went down after the show because it was
headed in that direction before the broadcast.
The cattle industry, however, went ballistic after
the broadcast, demanding that Oprah allow them to set the record
straight. To Oprahs credit, she allowed the cattlemens
representatives to return, without anyone representing an opposing
view, to tout the safety of their product.
At this time, the Texas Commissioner of Agriculture
attempted to get the State Attorney General to sue all parties concerned
under the Texas Food Disparagement law. The Attorney General stated
that he did not believe he had that power under the statute. His
advice to the Commissioner was to forget about the issue so it would
not become a big deal with the American public.
I gave very little thought to this issue for several
weeks, until I received a call from a national television production.
I was told a group of Texas cattlemen had filed suit against Oprah,
Harpo Productions, myself, and the television company that carried
the show in Texas. Upon receiving the call, I didnt think
any court would proceed with a case that flew in the face of the
First Amendments right to free speech.
In the year that it took to prepare and schedule the case on the
court docket, the action was moved from Texas State Court to Federal
Court in Amarillo, Texas. During this time, the USDA and the Food
and Drug Administration (FDA) adopted regulations prohibiting the
feeding of ruminant remains (cows, sheep and goats) to other ruminant
animals. This was what I had called for on the Oprah show. Also,
during this period, the Nobel Prize was awarded to a scientist at
the University of California, Dr. Stanley Prusiner, who first proposed
the theory that abnormal proteins are the method of transmission
of spongiform diseases. I felt sure that the judge, knowing these
facts, would find little precedence to carry out a trial. I was
very wrong. She removed the communication company as one of the
defendants, but set a trial date for February 1998.
I soon learned that Amarillo was not exactly the
ideal place to hold such a trial. Twenty-five percent of all beef
fed for slaughter in the U.S. comes from the Amarillo area. Over
one hundred feedlots averaging 55,000 head of cattle surround Amarillo.
The largest employer is the slaughter plant that kills beef for
the U.S. market place. Subsequently, we requested a change of venue,
but it was denied. The jury was drawn from surrounding rural counties
steeped in the cattle culture.
The jury was picked and the plaintiffs presented their case. When
they rested, we moved for dismissal. The judge, much to the plaintiffs
surprise, agreed to hear the arguments from both sides. After hearing
the arguments, the judge ruled that the jury could no longer consider
the Texas Food Disparagement law because no animal, still living,
could be considered perishable and thus cows were not covered by
the law. However, she allowed the case to move forward under the
business disparagement complaint.
To prove the business disparagement, the cattlemen
needed to show that the statements made by the defendants were directly
aimed at the plaintiffs and that the statements were made with reckless
disregard for the truth. Under these terms, the plaintiffs were
unable to convince the jury that the defendants were libelous. The
jury cast a unanimous verdict for us.
After our victory, I hoped that the nightmare was
over...but it wasnt. The case was appealed by the plaintiffs
and on the last day of the statute of limitations over 100 additional
ranchers filed almost the exact same suit 40 miles away in Dumas,
Texas. The ranchers lawyer stated, as one basis for the lawsuit,
that the judge in Dumas is up for election every four years; therefore,
they believed he would not be influenced by the celebrity status
of the defendants. Fortunately, this case was also removed to Federal
Court in Amarillo. Plaintiffs have appealed and oral arguments were
heard in June of this year.
Silencing Free Speech
This case is a classic example of using the law to force activists
to use their scarce resources in court to defend the right to free
speech. The Supreme Court has ruled that we, as a society, should
have open, vigorous debate on issues of contention. When I appeared
on Oprahs show, I simply shared my opinion about a possible
future event. The Supreme Court has always ruled that citizens have
a right to their opinion and cannot be held liable for them, for
there can be no facts about a future event.
This case was an attemptby people with too
many dollarsto control the discussion of the American people.
It is my hope that this never happens again. If it does, I believe
that the losing plaintiffs should bear the entire court costs of
Animal law is where we speak for those who
have no voice. In a nation where over eight billion animals are
killed every year, many under deplorable circumstances, there are
many opportunities for us to raise our voices. Our health, the health
of the planet, and our treatment of animals will depend on the actions
of this generation. I hope we can be proud of what we do.
Howard F. Lyman is founder and Executive
Director of Voice for a Viable Future, a non-profit organization
that educates the public on the health, environmental and ethical
benefits of an organic, plant-based diet. He is author of Mad Cowboy:
Plain Truth from the Cattle Rancher Who Wont Eat Meat.