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October 1999
Show Trial

By Howard Lyman



I never thought I would become involved in a high profile test of our right to free speech, especially one involving animal law and food activism. After a million miles of travel, appearances on thousands of radio stations and hundreds of television stations, I have a story to tell.

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 grandfather’s 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 wasn’t 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 prion—a type of abnormal protein—might 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 Society’s “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 Foods—Could it Happen Here?”

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
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 Cattlemen’s Beef Association (NCBA). The show began with a review of the history of the disease in Britain. Oprah then turned to me and said, “Here’s 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, “That’s 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 nation’s 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 Britain’s 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 wasn’t 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 Oprah’s credit, she allowed the cattlemen’s 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 didn’t think any court would proceed with a case that flew in the face of the First Amendment’s right to free speech.

The Show-Down
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 wasn’t. 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 Oprah’s 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 attempt—by people with too many dollars—to 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 the defendants.

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 Won’t Eat Meat.



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