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Abstract

This Comment analyzes the likelihood of whether BPI’s case against ABC News will be decided on the merits, whether South Dakota’s agricultural disparagement statute will be upheld as constitutional, and thus the likelihood that other states’ statutes will be struck down, thereby preserving the public’s freedom to question and criticize the safety of our food system. First, Part I offers a brief introduction to agricultural disparagement laws, their historical application, and BPI’s pending lawsuit. Next, Part II reviews the context of the enactment of agricultural disparagement laws, summarizes the common elements of these laws, and discusses Texas Beef Group v. Winfrey. Parts III (A) and (B) discuss BPI v. ABC News and analyze whether the facts of the case are sufficient to permit a decision on the merits. Part III (C) analyzes the constitutionality of South Dakota’s agricultural disparagement statute under the First Amendment of the United States Constitution. Finally, Part IV concludes that BPI’s case will probably fail on the merits, and that South Dakota’s agricultural disparagement statute is likely unconstitutional under the First Amendment.