ROBERT SIEGEL, HOST:
In a South Dakota courtroom, ABC News will defend a series of stories it reported five years ago in a defamation lawsuit. Jury selection started today. It's a trial that could prove to be a measure of public attitudes toward the media.
Back in 2012, ABC correspondent Jim Avila reported on a practice of a South-Dakota-based company called Beef Products Inc. To lower the fat content of its ground beef, the company added something it called finely textured beef product made from the trimmings of the cow after it was butchered.
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JIM AVILA: Seventy percent of the ground beef we buy at the supermarket contains something he calls pink slime.
SIEGEL: In that clip from the original reporting, Avila used the name for this substance that a former USDA scientist have given it - pink slime. And while ABC pointed out in their stories that the addition of pink slime was common and not unsafe to eat, it wasn't labeled.
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AVILA: The USDA is clear in saying pink slime is safe.
SIEGEL: Beef Product Inc. says sudden public awareness of something with such an unappetizing name cost them business and lead to plant closures and job losses. And in 2012, the company brought the suit that's now just coming to trial.
Well, joining us to talk about this case is Jane Kirtley. She's the director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. Welcome to the program.
JANE KIRTLEY: Thank you.
SIEGEL: What does the company Beef Products Inc. have to show in court to win a defamation judgment against ABC News?
KIRTLEY: If what they're suing under is the agricultural disparagement law in South Dakota, they have to prove that ABC said that the beef product was unsafe to consume. If it's a common garden-variety libel case, they have to prove that what was published about them was false. And moreover, they have to show that ABC acted with what is called actual malice.
SIEGEL: And is the company bringing its action under both laws?
KIRTLEY: It is suing under everything under the sun - product disparagement, interference with business operations and a variety of other claims.
SIEGEL: Can Beef Product Inc. argue successfully that by being the only company that was described doing this even though it was done by many other companies, that that constituted defamation in some way?
KIRTLEY: One of the questions about the agricultural disparagement law is whether it deals with the company or with the product itself. BPI has claimed that essentially what ABC has said is that they were complicit in mislabeling or not labeling when it was included in beef that was sold to consumers in grocery stores and so forth.
SIEGEL: This case reminds one of Bismarck's line that people who want to savor either one shouldn't watch the process of making either sausage or laws. Making beef can look pretty ugly here. Is that essentially the essence of the lawsuit?
KIRTLEY: ABC actually did some reporting at BPI and showed what it characterized as a pristine plant with pristine processes. But the mere use of the phrase pink slime was something that captured the public imagination and I think frankly escalated the ick factor.
SIEGEL: This case comes to trial at a time when the so-called mainstream media, which would include ABC News, are routinely attacked for purveying fake news. And the president of the United States complains about lax libel laws. Is it possible that this case could possibly move the standard for defamation?
KIRTLEY: Well, it's only a trial decision at this point. So of course it would have no precedential value. But I do think it's a bellwether in the sense that it raises two very critical issues. One is that BPI claims that ABC was basically on a disinformation campaign, which is another way of saying fake news.
The other issue I think goes to the heart of what the media are supposed to be doing, which is informing the public about things that might be matters of interest to them but which corporate America may not be interested in sharing with them. And I think that was ABC's justification for doing this story - simply to let people know that the substance was in their ground beef.
SIEGEL: Professor Kirtley, thank you very much for talking with us today.
KIRTLEY: Thank you.
SIEGEL: Professor Jane Kirtley of the University of Minnesota.
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