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This article was first published as "[http://www.prwatch.org/prwissues/1995Q3/bypass.html Bypassing Barriers With "Active" and "Passive" Public Relations]"in ''PR Watch'', Volume 2, No. 3, 3rd Quarter 1995. It and "[http://www.prwatch.org/prwissues/1997Q2/merco.html Sludge Backs Up: Merco's SLAPP Suit Fails in Texas]" in ''PR Watch'', Volume 4, No. 3, 2nd Quarter 1997. The original article was articles were authored by John C. Stauber and Sheldon Rampton and is used here with permission. As with all SourceWatch articles, feel free to edit and revise.
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The program also interviewed Hugh Kaufman in his Washington office. "This hazardous material is not allowed to be disposed of or used for beneficial use in the state of New York, and it's not allowed to be disposed of or used for beneficial use in Texas either," Kaufman said. "What you have is an illegal 'haul and dump' operation masquerading as an environmentally beneficial project, and it's only a masquerade. . . . The people of Texas are being poisoned."
The purpose of the program, according to a memo written by a TV Nation staffer, was to document "the socioeconomics of waste, about who gets--literally--shat upon." It featured footage of Sierra Blanca residents who complained about odors from the sludge operation, and interviewed EPA whistleblower Hugh Kaufman, who described the ranch as "an illegal haul and dump operation" and said "the people of Texas are being poisoned."
Soon after the show aired, Merco filed a lawsuit seeking $33 million in damages from Kaufman and TV Nation's producer, Sony Entertainment Pictures, Inc., accusing them of "defamatory and disparaging statements . . . made with actual malice and a reckless disregard for the truth." The lawsuit complained that Merco had spent about $600,000 in direct public relations efforts to establish good will in Texas, half of which had been lost as a result of the program. Kaufman has counter-sued for $3 million.
"This issue is much bigger," Kaufman said, "because this is obstructing a criminal investigation of companies affiliated with organized crime involved in the illegal disposal of waste with an illegal contract at great taxpayer expense. The Burford-Lavelle thing was just using superfund for political shenanigans--determining which site would be cleaned up or not cleaned up based on politics." In Sierra Blanca, he said, "We're talking about government basically taking a dive for organized crime during an open criminal investigation."
After a year of litigation, a Texas jury awarded actual damages in the paltry amount of $2, plus $5 million in punitive damages.
Upon appeal, however, the circuit judges found that Merco had failed to prove its case. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication," they stated. "That evidence is lacking here. . . . Merco presented no proof that TriStar and Kaufman knew, or should have known, that any part of the 'Sludge Train' broadcast was false. Indeed, Merco failed to show any part of the broadcast actually was false." [http://www.prwatch.org/prwissues/1997Q2/merco.html]
In defense of its position, Merco cited experts who argued that land application of sewage sludge is a safe practice, and argued that the program should not even have interviewed Kaufman, on grounds that he was a "renegade" notorious for his "whistleblower" activities at the EPA. The judges, however, ruled that "expert opinions are merely that--opinions. Moreover, because an 'expert' endorses a certain practice does not mean all reasonable debate on the merits or safety of that practice is foreclosed."
"TriStar and Kaufman are not liable for defamation because they refused to corroborate the Merco party line," the judges concluded. "Defamation law should not be used as a threat to force individuals to muzzle their truthful, reasonable opinions and beliefs. To endorse Merco's version of defamation law would be to disregard . . . constitutional protections."
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