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34 Harv. J. on Legis. 135 (1997)
Of Banana Bills and Veggie Hate Crimes: The Constitutionality of Agricultural Disparagement Statutes

handle is hein.journals/hjl34 and id is 141 raw text is: ARTICLE OF BANANA& BILLS AND VEGGIE HATE CRIMES: THE CONSTITUTIONALITY OF AGRICULTURAL DISPARAGEMENT STATUTES DAVID J. BEDERMAN* SCOTT M. CHRISTENSEN** SCOTT DEAN QUESENBERRY*** In the wake of the 1989 controversy surrounding the report on the television show 60 Minutes about the chemical Alar and its negative effect on the sale of apples in Washington, a number of states passed laws making it an actionable tort to unjustifiably criticize food produced in those jurisdictions. In this Article, David Bederman, Scott Christensen, and Scott Quesenberry examine the constitutionality of these agricultural disparagement statutes, first by exploring common law trade disparage- ment and then by highlighting different First Amendment concerns. The authors conclude that these statutes pose a major challenge not only to established common law rules of trade disparagement, but also to consti- tutional principles under the First Amendment. The television show 60 Minutes reported in 1989 on the use of a chemical growth regulator on apples raised in Washington state.' This report, and a subsequent decline in apple sales, pre- cipitated a lawsuit accusing the network, CBS, of falsely dispar- aging the quality of Washington apples. The incident also sparked the passage of the first of several agricultural disparagement statutes.2 To date, twelve states have passed strikingly similar *Associate Professor of Law, Emory University School of Law. Visiting Associate Professor of Law, University of Virginia School of Law (1996-97). This Article reflects developments through September 1996. The writer is grateful for the research and advocacy assistance of numerous indi- viduals, including Christine B. Ledvinka (Emory '94L), Jonathan D. Blum (Emory '95L), and Philip J. Bauer (Emory '96L), all of whom participated in some aspect of the briefing and argument in Action for a Clean Environment v. Georgia, 457 S.E.2d 273 (Ga. App. 1995). Most of all, I wish to salute Ms. Phyllis Marberger, chair of Parents for Pesticide Alternatives. She taught me that the most important words that can come out of our mouths are about the food that goes into them. **B.A., California State Polytechnic University, 1988; M.A. and Ph.D., University of California at Riverside, 1991 and 1997 (expected); J.D., New York University (expected 1997). -A.B., Dartmouth College, 1993; J.D., Emory University, 1996. 160 Minutes: 'A' is for Apple (CBS television broadcast, Feb. 26, 1989). For a transcript of the broadcast, see Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 937 (E.D. Wash. 1992). 21For background on the introduction of agricultural disparagement legislation, see

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