Left Field

The Texas cattle raisers who sued Oprah Winfrey, her talk show, and show guest Howard Lyman in 1996 were back in court June 1, appealing their case to the Fifth Circuit in New Orleans. After watching Joseph F. Coyne, their fancy Los Angeles trial lawyer, tank the oral argument, Amarillo’s mad cattleman Paul Engler and his son Mike must have been even madder – or at least, to judge by the tight smile on Mike Engler’s face, hoping that Coyne’s briefs are better than his speechifying.

In Amarillo last January, the plaintiffs argued that they’d been wronged under the so-called “veggie libel law” – the 1995 Texas False Disparagement of Perishable Food Products law – as well as under older product defamation law (see “Mad Cows and Cattlemen,” by Karen Olsson, February 13, 1998). Federal Judge Mary Lou Robinson found that cattle didn’t count as “perishable food products” under the new law, and the jury found Winfrey and Lyman hadn’t violated the older laws.

The plaintiffs appealed on four matters: one, that the case should not have been removed from state court to federal court for the original trial; two, that cattle are in fact perishable food; three, that Winfrey and Lyman knowingly made false statements, and four, that those statements were “of and concerning” the plaintiffs’ cattle.

Apparently forgetting that they don’t have juries at the Fifth Circuit, Coyne began his argument by setting aside all these issues, declaring to the panel of three judges (only two of whom were actually present), “I want to take a few moments to discuss what this case is not about.” Coyne went on to do a little orating, asserting that the case was about “the millions of Americans who work all year to produce agricultural products whose markets can be destroyed by a panic,” but was not about “whether you can libel a cow” but was about the fact that “the constitutional protections we all enjoy do not protect false statements knowingly or falsely made,” and so on and so forth, until at last Judge Carl Stewart told him, “We know what the case is about, I assure you.”

Coyne spent too much of his remaining time on the state-vs.-federal court issue (given that the cattlemen already had a six-week trial, the Fifth Circuit isn’t likely to grant them a new one), and talked in circles when it came to whether the defendants knowingly made false statements (first pinning the falsity on the show’s editing job, then on Lyman, then back on the editors). The burning question of whether cattle are or are not a perishable food item went practically untouched.

Next to Coyne, Charles Babcock and Barry Peterson (the lawyers for Winfrey and Lyman) looked like geniuses, so Oprah has little to be cowed about in this case. The same day of the appeal, however, a New York Times front page story addressed the wider impact of veggie libel laws: while plaintiffs like the cattlemen haven’t been big winners, the public is already a loser when it comes to available information on food safety. The article cited several projects – including a book that discussed bovine growth hormone, and a proposed Discovery Channel documentary on the history of food – that have been scuttled or modified because of fears of getting sued.

Death Row’s Montel Williams Problem

If the national news media has found it a little bit harder to get access to Huntsville’s Death Row in the last few months, they should thank Pat Robertson. That’s the gospel truth, according to Glen Castlebury, public information officer for the Texas Department of Criminal Justice. Recently, when the T.D.C.J. proposed new rules governing Death Row visitation, included was the following sentence: “‘News media’ does not include broadcast programs syndicated by independent producers, or television stations or networks devoted primarily to advocacy purposes or to a particular point of view.” Castlebury says that passage is a response to problems that occurred during the 1998 Karla Faye Tucker case: “During the Karla Faye Tucker deal, the department felt we got absolutely abused, and legitimate news media got abused, by such institutions as Christian News Network and the Montel Williams Show, and about 1,000 others like that.”

Castlebury says that the Christian News Network (“they were pushy and dishonest”) convinced him “during a moment of weakness” that it was a legitimate news service, but the network’s personnel abused T.D.C.J. policies by demanding additional access and then used the Tucker interview material not for “real newscasts” but for fundraising. Meanwhile, the talk-show and magazine-style T.V. shows also wanted extensive access to death row prisoners, creating time conflicts with Texas newscasts. “I don’t want to stand around and listen to Montel Williams, or 20/20, Dateline, Nightline, or Hemline, or any of those other people, tell me they are news,” said Castlebury, “as I define news.”

As written, the rules are strongly biased toward mainstream, large circulation news sources. Castlebury insists that these are the same rules which have long been in force under prison “administrative directives,” and that they are simply being formally codified into T.D.C.J. Board policy, as required by law. The distinctions between media, he adds, are simply there to set priorities for his information staff. “We don’t have damn thing to do with whether we like their shows or not,” Castlebury said. “We have to set time priorities for our three information officers.” Under those priorities, Castlebury says, Texas reporters working on breaking stories come first, then Texas reporters working on non-current feature or investigative pieces. National broadcast news media is next in line, using the same distinctions; only then will the magazine shows be accommodated, with international news sources last of all. Castlebury says trouble often starts when national television shows get irritated at standing in line behind the Texas press. “Dan Rather and Diane Sawyer always say, ‘You just don’t like what we’re going to say about you.’ Anyone who can’t get in on our provincial priorities – of serving Texas first – always kneejerks up to First Amendment [accusations].'”

Asked if he isn’t concerned that his categories put the T.D.C.J. in the uncomfortable position of deciding who or what are “legitimate” news media, Castlebury was unmoved. “I haven’t had any problem in a grading system that has Montel Williams at one end, and 20/20 somewhere down the line, and the Texas Monthly and the Texas Observer and the Dallas Morning News at the other end – I got no problem sorting out those priorities.”

Prisoner advocacy groups are much less sanguine about the new Board visitation rules, which they say threaten to deprive prisoners arbitrarily not only of First Amendment rights and legitimate press access, but access to clergy of their choice. Moreover, the rules make official the Executive Director’s right to suspend all death row access “for security reasons” for indefinite periods (subject to the ratification of the Board), as was done following the recent death row escape. In late May, the rules were tentatively approved by the T.D.C.J. Board, pending public commentary (to be accepted until June 20). If not revised or overturned, the rules will take effect following the next Board meeting in September. For more information, contact Rick Halperin, 121 Clements Hall, S.M.U.—Amnesty International, Dallas, Texas 75275

The Bush Beat: Knockin’ ’em Dead in Round Rock

Here was George W. at his agile best, moving effortlessly from Eric Carle’s The Very Hungry Caterpillar to state executions by lethal injection. In what may have been a preview of his first trips to Iowa and New Hampshire, the Governor traveled fifteen miles north of Austin, for a ceremonial signing of education bills at Round Rock’s Jollyville Elementary School. The event had the feel of a primary campaign stop: students standing in the corridors cheering, good visuals of the Governor seated at the head of a reading circle, autograph-seekers from the faculty, staff, and student body.

After reading aloud to a first-grade group of twelve, and answering questions about his political future – “Are you going to be the President?” – the Governor moved into the library to sign the bill and meet the press. In a round of questions that followed he addressed the following topics:

Bill Clinton: Guilty, should have been impeached and convicted.Tort Reform: Good for business, so good for the state.Head Start: Good, it’s on the federal tab.National Press: Good, can’t wait to “look them in the eye.”Reading: Good, “it’s the new civil right.”Death Penalty Clemency Procedure: Fair, “the courts think it’s fair.”*

It was only on this last topic that the Governor volunteered any extended extemporaneous comments – one issue he won’t be running from is executions in Texas. He even took a gratuitous swipe at Joseph Faulder, a Canadian scheduled to die in Huntsville on June 17. In response to a generic question about the pardons and clemency process, the Governor responded:

“I think it’s fair. The courts think it’s fair. I think there’s ample time to review death penalty sentences. And if you’re referring to the Canadian, I’ll never forget the press conference [when] the Canadian press said, ‘What should be learned about your system?’ And I said, ‘The message is clear. Don’t come to Texas and kill somebody.’ You’ll be given fair access to the courts.We’ll give you full time to have your hearing. That’s exactly what we do in the state of Texas. But there will be consequences for bad behavior. So I believe the system is fair in the state of Texas.”

* Judge Sam Sparks, in his opinion on the Faulder case, wrote of the clemency procedure of the Board of Pardons and Paroles: “A flip of the coin would be more merciful than these votes” and “[the clemency procedure is] extremely poor and certainly minimal.”

Dying for NATO

“We will continue our practice of striking those military targets with great accuracy and precision, and we will continue to take every conceivable measure to avoid damage to civilian property and harm to civilians.” It’s not an apology. In fact, it’s a stretch to even call it an acknowledgement of error. But that disclaimer became the official response, usually delivered by NATO spokesman Jamie P. Shea, to NATO “mistakes.”

The following is a list of NATO blunders as of May 20, provided by Agence France Presse:

April 5: A 250-kilo (500-pound) NATO bomb aimed at Yugoslav army barracks in the town of Aleksinac in southern Serbia misses its target and lands in a residential area. Serbs say death toll is seventeen.April 9: NATO hits homes near a telephone exchange facility in the Kosovo capital of Pristina. NATO says civilian casualties were possible but neither side provides a death toll.April 12: A NATO pilot fires two missiles into a train crossing a bridge at Grdelicka Klisura in southern Serbia, killing fifty-five people, according to Belgrade. NATO insists the bridge, a key supply line for Yugoslav forces in Kosovo, was the target and that the pilot saw the train too late.April 14: NATO bombs refugee convoys in the Djacovica region of southeast Kosovo, leaving seventy-five dead, according to Belgrade. NATO, without confirming the civilian toll, says it was targeting military vehicles but admits hitting two convoys.April 28: NATO, aiming for an army barracks in the Serb village of Surdulica, bombs a residential area, leaving at least twenty civilians dead.May 1: NATO bombs a bridge at Luzane near Pristina, killing forty-seven people aboard a bus which was travelling along it. NATO, without confirming the figure, admits the following day having targeted the bridge without the intention of causing civilian casualties.May 7: A NATO air raid hits central Nis in southeast Serbia, leaving at least fifteen dead and seventy injured. NATO says that its planes were aiming for a landing strip and a radio transmitter but that a cluster bomb had missed its mark.May 8: NATO mistakenly attacks the Chinese embassy in Belgrade, killing three journalists. The United States and NATO say the intended target was a Yugoslav building with military use, but U.S. maps used in the planning of the operation were old and marked the embassy at a previous address.May 20: A Belgrade hospital is hit by a missile at around 1:00 a.m., killing three patients. NATO attributes the accident to a missile which went astray during an attack on a nearby military barracks.