William & Mary Bill of Rights Journal
Two Degrees of Speech Protection: Free Speech Through the Prism of Agricultural Disparagement Laws
In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort actions for the redress of harms caused by expressive actions. Next, he addresses two lines of protection against these First Amendment restrictions: (1) a combination of substantive law and procedural protections that courts have developed since the Supreme Court's 1964 New York Times v. Sullivan decision; and (2) the use of exacting judicial scrutiny for laws, such as APD statutes, that entail content discrimination. Finally, the Article concludes that the APD statutes contravene free speech protections and should be struck down as unconstitutional violations of the First Amendment.