Maintenance Phase

Oprah v. Beef Part 1: The Rise of "Veggie Libel"

• Aubrey Gordon & Michael Hobbes

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[Maintenance Phase theme]

Aubrey: Hi, everybody, and welcome Maintenance Phase, the podcast that dares to answer the question, where's the beef? 

Michael: Oh, no, you did one of the puns. I was going to read you all the headlines with the puns. [laughs] 

Aubrey: I figured I should bring the timeliest reference that I could to this show.

Michael: The other really good timely one is a lot of the headlines are like, "Cattlemen's Association has a cow over Oprah's comments."

Aubrey: [laughs] 

Michael: That wouldn't even make sense to people anymore. 

Aubrey: Well, this is also the early 1990s when people are like, "Woo, Bart Simpson."

Michael: He's animated, but he's bad. Incredible.

Aubrey: [laughs] You can tell by his slingshot and his haircut.

Michael: I am Michael Hobbes. 

Aubrey: I am Aubrey Gordon. If you would like to support the show, you can do that at patreon.com/maintenancephase. You can also subscribe through Apple Podcasts. And you can get T-shirts, mugs, tote bags, all manner of things at TeePublic. We will link all of that for you in the show notes.

Michael, I am at a loss, because I was steeled for a tiny interrupting machine, and it didn't happen. 

Michael: I know. [laughs] I was like, "The best way to fuck with her is to not do anything to let her do it." [laughs] 

Aubrey: [laughs] You were 100% right. I am on my heels.

Michael: One step ahead of you. Nice try. 

Aubrey: [laughs] Ah, Michael.

Michael: Aubrey.

Aubrey: Today, we are talking about a thing that I actually know almost nothing about.

Michael: I'm so excited. 

Aubrey: Which is the Oprah v. Cattlemen's Association court bout of the 1990s, right?

Michael: Oprah v. Beef. Yes. 

Aubrey: I made the mistake of telling one of my family members last night what our show is about, and they were like, "Oh, that's how she met Dr. Phil." And I was like, "Shut up, shut up."

Michael: Oh, no, you got a spoiler for something that happened 30 years ago?

Aubrey: I did, and it really fucked me up.

Michael: What do you actually know? If you were forced to put a chronology together, what would you say? 

Aubrey: I believe the Cattlemen's Association or beef ranchers or something came after Oprah and filed suit against her. It was a big lawsuit, but I don't know why. My understanding was that it was around something relating to talking about mad cow disease. 

Michael: Yes. 

Aubrey: My assumption is that she did a show where she was like, "Mad cow is a thing." And they were like, "Get out of town."

Michael: That's basically it, Aubrey. We can close now. [crosstalk] Roughly, you're not--

Aubrey: [laughs] Thanks for joining us on our shortest episode of Maintenance Phase. [laughs] 

Michael: You're not going to get a huge twist in this, but this is a two-part episode. Like all two-part episodes, this is basically just an excuse to talk about a bunch of other shit and put Oprah in the title of the show so that you download it [Aubrey laughs] thinking it's going to be fun. But it's mostly about mad cow disease and the ins and outs of American libel law, which is actually, weirdly interesting. 

Aubrey: Okay.

Michael: So, to get to the beef in 1996, we have to talk about the apples in 1989. 

Aubrey: Here's what I know about apples in the 1980s.

Michael: Okay.

Aubrey: There were three kinds, and they were all bad. 

Michael: [laughs] 

Aubrey: Red, yellow, green, bad.

Michael: So, in February of 1989, 60 Minutes runs a segment that was warning the US population about the dangers of pesticides. There was a pesticide called Alar that farmers sprayed on apple trees to keep the apples from falling down and getting bruised. The segment opens with a graphic of a red delicious apple, like, morphing into skull and crossbones.

Aubrey: [laughs] 

Michael: It's like morphing technology of this amount. 

Aubrey: The audacity of news graphics in the 1980s is unparalleled. I love this so much.

Michael: They never should have given you motherfuckers morphing.

Aubrey: [laughs] 

Michael: Remember the Michael Jackson video? And it was like, "Let's put morphing in there, because we got to morph it."

Aubrey: Oh, my God. Yes. 

Michael: The segment begins with Ed Bradley saying, "The most potent cancer-causing agent in our food supply is a substance sprayed on apples to keep them on the trees longer and make them look better. That's the conclusion of a number of scientific experts. And who is most at risk? Children, who may someday develop cancer from this one chemical called Alar." And then, this is the rest of the segment.

Aubrey: Oh, my God. This is one of my other favorite things, is watching an extremely dated news segment. 

Michael: Dude, I know. 

Aubrey: Wellness. What is it? 

Michael: So, here's the clip. They're going to say daminozide, which is the official name for the pesticide, which is sold as Alar.

[clip starts]

Reporter: Janet Hathaway's organization, the Natural Resources Defense Council, has just completed the most careful study yet on the effect of daminozide and seven other cancer-causing pesticides in the food children eat. 

Janet: Just from these eight pesticides, what we're finding is that the risk of developing cancer is approximately 250 times what EPA says is an acceptable level of cancer in our population. 

Reporter: Kids are at a high risk from UDMH, because they drink so much apple juice. The average preschooler drinks 18 times more apple juice than his or her mother. If those apples were treated with daminozide, the cancer risk is perilously high. 

[clip ends]

Aubrey: It sounds pretty damning-

Michael: Pretty bad. 

Aubrey: -but also, I know that the science around carcinogens is squishier than we like to talk about, and I know that the news media loves a story like this, and I know that the number one way to take something down is say it causes cancer. 

Michael: I feel like what you're really saying is, "Mike, I know the premise of the show. So, it's probably more complicated." [crosstalk] 

Aubrey: Yeah, that's exactly right. I'm approaching this with caution because I've been recording this show with you for three years. [laughs] 

Michael: The only reason we're going to talk about this is if it's a little bit more complicated than it seems. 

Aubrey: But also, listen, if I just saw this on TV, I'd be like, "Holy shit. I got to stop buying apples."

Michael: This segment is basically a preview of a report that is about to come out from the Natural Resources Defense Council, which is an environmental NGO, where they tested a bunch of different pesticides for their carcinogen-ness, like how dangerous are all of these pesticides. Alar turned out to be by far the most dangerous one. It's very convincing in that it's like, "Okay, there's this evil chemical which has this scary name." And then, we cut to footage of kids and it's like, "Well, in their little kid bodies, every carcinogen is more concentrated." And kids are drinking, they say, 18 times more apple juice than adults. 

Aubrey: This also taps into a very real track record of chemical companies doing horrible things.

Michael: Yes.

Aubrey: This is a little bit like if someone tells you that Big Pharma did something that was trash, you're like, "Yeah, that tracks."

Michael: This is like the central tension at the heart of this entire episode. On one hand, this is obviously a little overblown, this report, but on the other hand, it's like a fucking pesticide company, which is lying to us constantly because profit motive is the number one thing that they operate based on. 

Aubrey: And also, listen, at this point, I was a kid watching a TV show called Captain Planet, where the villains were polluters. 

Michael: God, that show was such great propaganda. 

Aubrey: I loved that shit. 

Michael: I mean that in the most complimentary way. [laughs] 

Aubrey: I loved it so much. 

Michael: So, as you would expect, right after this 60 Minutes segment comes out and the environmental NGO publishes this report, there's mass panic. 10 large school districts around the country, like New York, Chicago, LA, they pull apples from their cafeterias. 

Aubrey: Whoa. 

Michael: The apple industry just completely fucking tanks. There's reports of a parent calling Poison Control and asking if it's safe to pour apple juice down the drain, like it's acid-- [laughs] 

Aubrey: Okay. It's not paint, guys. 

Michael: Yeah, I know. People really took this stuff very seriously. There's also a report of a mom chasing after her kid's school bus and being like, "I packed him an apple in his lunch. Give me the lunch back." 

Aubrey: Okay.

Michael: People just losing their minds about this shit. 

Aubrey: She was confused. She thought it was the SnackWell's CookieMan.

Michael: Yeah. [laughs] 

Aubrey: Ooh, callback. 

Michael: Eventually, the manufacturer pulls Alar from the market. So, you cannot get Alar in America anymore. This is why we don't have any apples, because they're all on the ground. But then, the apple industry is so mad about this that they file a lawsuit against 60 Minutes and CBS and the local affiliates for libel. 

Aubrey: Big Apple. 

Michael: Big Apple. The lawsuit is kind of funny. So, the first problem with this lawsuit is that it's not clear who can sue over a claim like this because this is something that affects the entire apple industry. The lawsuit is filed by a couple of essentially random apple growers in Washington State. In their lawsuit, they say, "60 Minutes did not employ the term "red apples" but the visuals accompanying the spoken word left no doubt that red apples constituted the subject matter, nor was Washington State referenced by name, although thanks to a longstanding, aggressive marketing approach taken by the Washington State Apple Advertising Commission, it is commonly known throughout the country, if not the world, that Washington is the prime producer of red apples." 

Aubrey: Is that widely known? 

Michael: It's not even like apple farmers. It's like red apple farmers and they're like, "You have libeled the good name of red apples."

Aubrey: I'll tell you what, at this point, red apples are red delicious, and those things come pre-libeled.

Michael: [laughs] 

Aubrey: Those things are already bad. Their product is libel against their product.

Michael: So, the Washington State apple industry files this huge lawsuit. One of the judges-- Sometimes, judges are trying to be cute with their decisions. One of the judges says, "Apples haven't received such bad press since Genesis."

Aubrey: Okay.

Michael: I get it. That's a cute little zinger, but I love judges doing shtick in their little opinions. 

Aubrey: [laughs] 

Michael: Yeah. So, in their lawsuit, the apple growers list three false claims that were in the 60 Minutes segment that they're basing this lawsuit on. The first is, the most potent cancer-causing agent in our food supply is a substance known as Alar. The second is, we know that Alar causes cancer, and over a lifetime, 1 child out of every 4,000 will develop cancer from these eight pesticides. 

Aubrey: Those last two seem potentially really hard to prove.

Michael: I will say in defense of this lawsuit. First of all, a lot of apple growers were genuinely put out of business by this. The apple industry was decimated for a couple of months, it eventually came back. But this is a perishable product, so it just sits there and rots, because you can't sell anything because the price crashes. The segment is straightforwardly scaremongering bullshit.

The actual context of Alar and the EPA and everything that was going on was this pesticide had been approved in 1968. There was a whole approval process in which they did a bunch of studies to determine whether it was a carcinogen. So, it's not like it was just put on the market with no process behind it. It's on the market for a couple of years. And then there's essentially one lab at a university in Oklahoma that does a test in 1973 on a bunch of rats where they give rats, a fuck ton of Alar. They give them-- the apple growers will later say that to be exposed to this much Alar, you would have to eat 28,000 apples a day. 

Aubrey: Holy shit. This is like the Diet Coke rat studies where they're like-

Michael: Yeah, exactly. 

Aubrey: "We just injected it into their brains at twice their body weight." You are like, "All right. Yeah." 

Michael: They're just blasting them. They do one study in 1973 on rats that finds it's a carcinogen. They do another one in 1977 that I believe is on hamsters, which also finds that it's a carcinogen. After these two studies come out in the 1970s, the EPA forms a panel. They look at this evidence and they're like, "We don't know that this is all that big of a deal." There's actually a really interesting debate going on in science at the time about whether you can determine whether something is a carcinogen by blasting animals with high doses of it, because the toxicity of a substance is oftentimes totally dependent on the dosage. So, if you have too much alcohol, you can die. If you have too much caffeine all at once, you can die. But when you're getting these substances at much lower doses, the idea is that your body repairs itself. It's not necessarily the case that getting something in small amounts will have the same effect as getting something in dump truck amounts.

Aubrey: Yeah, it's interesting. As you're talking about this, I'm just thinking about how much of our health and wellness conversations and conversations about specific ingredients or components of food are really stuck in this kind of binary mode that you're describing, which is just like, "Any amount of this equals cancer."

Michael: Right. I actually read a really interesting content analysis of the 297 articles published about this in 1989, which is just a fucking huge number of articles. What it said is that very few of the articles told people this, that it's like the EPA is looking at it, they did more studies. The EPA then forms a panel, and the EPA is like, "We don't know that this data is all that good, but we're going to now order the manufacturer of Alar to perform more tests." But two weeks before the 60 Minutes report, the EPA had ordered the manufacturer to pull it off the market. The whole report coming from this environmental NGO is about like, "You should be phasing it out faster." 

It's difficult to see this as a total breakdown of government regulators when it's like, "No, they looked at the data, they ordered the manufacturer to do more tests, and they were like, 'Hey, let's be careful and pull this off the market.'" It's already happening.

Aubrey: Does that get covered in the 60 Minutes story? 

Michael: Yeah, they mention it. But with these things, it's all about the emphasis. Oftentimes, the facts are in there. If you look at each sentence of the report in this very like, "What is the information that it contains?" But it's very easy for your eyes and your ears to skip over this stuff depending on what the emphasis is. The emphasis in the report is, "Kids are eating this and this causes cancer, and kids could get cancer anytime."

Aubrey: Everything that comes after an apple morphs into a skull and crossbones.

Michael: Yeah, exactly. This is the number one thing you're going to take away from that.

Aubrey: That graphic should have been the grounds for their lawsuit. [laughs] 

Michael: Yeah, no shit. But then, the other thing that the lawsuit mentions is that not only does the segment not really prove that this causes cancer in kids, it doesn't even really prove that this causes cancer in humans. This is literally based on these two studies from the 1970s of rats and hamsters. Another thing I thought was fairly irresponsible about the segment is that by 1989, Alar had been on the market for almost 20 years. Have the kinds of cancers that we would predict gone up in the population during that time? If not, I feel like that's something to at least tell the audience at some point.

Aubrey: Right. And also, could you compare it to other places that don't use this substance? 

Michael: Right.

Aubrey: There's a bunch of ways that you could look at it. All of them imperfect, but could point you in a direction or not.

Michael: Right. Another thing that they didn't really mention is that this pesticide was already basically being phased out. So, the EPA estimated that it was only being used on about 5% of apples-

Aubrey: Oh, wow.

Michael: -by the time this report came out. The environmental NGO says that it's closer to 30%. The industry says it's 10%. It's not like every single apple you buy is going to be doused with this pesticide. 

Aubrey: 5% to 10% to 30% of apples? That's a big range. 

Michael: Huge range. I know.

Aubrey: But it's also not the same thing as every apple might be poison for your child.

Michael: And also, we know this now, we didn't know this then, but Alar has been looked at by a bunch of other countries. The UN and the WHO have both said that it's not a carcinogen, and there's been more tests now. 

Aubrey: What? 

Michael: Yeah, it's not clear that this actually is dangerous. I don't really fucking care that the US banned a pesticide needlessly. Just like the McDonald's thing in last episode. I'm like, "I don't-

Aubrey: Who cares? 

Michael: -weep over the fate of a fucking pesticide company." 

Aubrey: Won't someone think of the shareholders? 

Michael: Yeah, exactly. 

Aubrey: No, we're fine. 

Michael: But then the real legacy of this case is not about Alar. It's about what happens to libel laws. So, the apple growers sue CBS for libel, and the case is thrown out, because they can't prove that any of these claims are false. They say, "Well, we know that Alar causes cancer. Well, there's some evidence that it's a carcinogen in rats." That is a factual statement, or at least close enough to a factual statement that 60 Minutes is justified in saying it. 

Aubrey: Sure. And also, when you pair it with B-roll of children eating apples, it's also leading you in a direction. So, it's factually correct, but also omitting important information. 

Michael: Well, this is the central case of the apple growers, is they basically say that yeah, there's no specifically false claim at the sentence level in this segment, but the overall impression that it leaves you with is that apples are fucking dangerous to eat. This is an actual thing in libel law. It's called the substantial truth requirement. The idea is that you can't go after a news organization for one false claim in a longer segment or book or article whose overall message is not libelous.

But the problem is that because they sued in Washington, we don't have the substantial truth requirement. You have to prove that the actual sentence level claims were false. So, again, I have some sympathy with the apple growers, because basically there's this TV show that is the number one most watched TV show at the time that is saying, "Your fucking product is poison."

Aubrey: Yeah, to children.

Michael: To children.

Aubrey: Yeah. 

Michael: A lot of apple growers weren't even using fucking Alar. They're like, "Well, nobody's buying my product either even though I already phased out this fucking pesticide." It is pretty fucked up and unfair. On the other hand, when it comes to laws that are governing things like food safety, you want to err on the side of being able to warn people that a product might be dangerous. There's this balance here between protecting the interests of an industry and protecting free speech. When does the evidence rise to the point where you can say, "Hey, we think this product causes cancer"? When should the media be able to do that? 

Aubrey: We're also just in weird hinky territory, where claims about free speech are almost always about white supremacy or- 

Michael: Yeah, super bad faith.

Aubrey: -saying and doing horrific things to considerably less power. Even though free speech is, you know, generally a good thing.

Michael: I like it. 

Aubrey: It has been hijacked. 

Michael: Yeah. 

Aubrey: But conceptually and legally, if we're talking about interpretations of the First Amendment, I could absolutely see that there would be a ton of tensions in that. 

Michael: Exactly. This is a tension that has existed since the beginning of the journalism industry. So, this case is thrown out mostly because in America, it's just very difficult for public figures and for companies to win defamation lawsuits. And to understand what happens next, we have to talk about the ins and outs of libel law, which I think is actually pretty interesting.

Aubrey: I know that you know an attorney, [Michael laughs] and I suspect that you talk to an attorney about this. A charming little attorney. Yes.

Michael: Yeah. I host a podcast with a fat lady and a little tiny lawyer. Those are my jobs.

Aubrey: That's his job, and that's my job. My job is fat lady.

Michael: [laughs] So, yeah, how much do you know about libel law, Aubrey?

Aubrey: My greatest fear is that I learn more about [unintelligible [00:21:07] 

[laughter] 

Michael: That you learn it against your will. Shit.

Aubrey: From this Goddamn show. Yes. 

Michael: [laughs] So, basically, America is famous at this point for having very strong libel laws. It's really hard to win a libel case in America. One of the reasons for that is there's a totally different standard of libel protections for public figures. If you're just a random person and a newspaper prints, "You're cheating on your wife," or something, that's pretty fucked up, because it's not a matter of public concern, and it's much easier to win a libel lawsuit. But public figures have much more ability to respond than a private figure does.

So, if we say on this show that Gwyneth Paltrow is faking her organic certification, "Her products are from sweatshops," or something, she's a massive celebrity. She can go on Instagram, she can call a press conference, she can have a video produced about how much we suck in her organic practices. The state doesn't really need to get involved. So, the first bar that public figures or companies have to clear to win a libel lawsuit is, it has to be about a specific individual. So, if somebody says on their podcast that, "Lady podcasters in Portland are the worst," you can't sue for that.

Aubrey: I've tried, Michael. 

Michael: I know. 

[laughter] 

Michael: What are your legal updates, Aubrey? 

Aubrey: I sued McDonald's for the coffee not being hot enough.

Michael: Yeah.

[laughter] 

Michael: So, the other bar to clear is that libel has to be a fact, not an opinion. So, if we say on the show, "Gwyneth Paltrow sucks, and you should never order anything from Goop again," that's not libel because that's just our opinion, and opinions are protected by the First Amendment. So, even if we're going out of our way to put her out of business, that's not libel. Unless we're saying, "Gwyneth Paltrow is an axe murderer and she's murdered 14 people and she's been convicted in nine states."

Aubrey: Hang on. I'm just lifting that out of context.

Michael: Yeah, exactly. 

Aubrey: And sent to Goop.

Michael: The funniest case that I came across, this is how this gets entrenched in law is, you know the speaker company, Bose? 

Aubrey: Yeah.

Michael: They tried to sue Consumer Reports for publishing a bad review. 

[laughter] 

Michael: This was in 1984. Consumer Reports said, "Their speakers seemed to grow gigantic proportions and tended to wander about the room," which isn't even that sick of a burn? 

Aubrey: Yeah.

Michael: But Bose was like, "This shall not stand." 

Aubrey: [laughs] 

Michael: Then, the court was like, "You got to be fucking kidding me. You've got to be able to say that these speakers suck."

Aubrey: I'm going to start suing people who leave lukewarm reviews of my book.

Michael: Yeah, exactly. 

Aubrey: I appreciated the first half. The second half was not totally for me, but [onomatopoeia], lawsuit.

Michael: Yeah, it was totally for you. God damn it. 

Aubrey: [laughs] 

Michael: Another thing that's really interesting is, I think a lot of the public thinks that libel law is really about you've made a false claim about somebody. But in the United States, there's all kinds of false claims that are actually protected. There's an infinite number of false claims that you can publish about somebody. Somebody could publish that, "Michael Hobbes is right-handed." That's a false claim, but it's not actionable as libel, because it doesn't damage my reputation. 

Aubrey: Left hand hive, rise up. [laughs] 

Michael and Aubrey: Yeah. 

Michael: It's actually very interesting how few libel trials actually hinge on whether or not the claims were true. A lot of libel trials hinge on whether it was the kind of false claim that it's okay to make. So, the reason for this balancing act in the law is that journalism is kind of messy. If you're a journalist acting in good faith, you're going to get tips. And sometimes, those tips are about urgent issues. If you get a tip that, "Okay, this pizzeria is poisoning people, and there's been 75 cases of food poisoning," and you have some reason to think that is accurate, you've reached out to the pizza place, you're actually allowed to print that as long as you've done your due diligence.

For a public figure to win a libel lawsuit against a false claim, the bar they have to reach is extremely high. So, you have to prove that the journalist was acting with what's called actual malice. 

Aubrey: Yeah. You don't want any of that fake ass malice. 

Michael: Yeah, exactly. The real shit. The good malice.

Aubrey: Real malice. 

Michael: It means that not only is the claim that we made about Gwyneth Paltrow false, but we knew it was false or we just had a completely reckless disregard for whether it was false. "I saw graffiti on a trash can that said, 'Gwyneth Paltrow has murdered a bunch of people.' And so, I put it on my podcast." No, that's not real. The whole idea is that, in a robust, free speech, free media environment, false claims are going to get published. Things are going to fall through the cracks. We can't have a legal system that protects fucking celebrities from every single false claim. We have to be able to err on the side of informing the public about important issues rather than erring on the side of, "No one should hurt Gwyneth Paltrow's feelings."

Aubrey: I'm really delighted, I have to say, that Gwyneth Paltrow is your example of a public figure, and murdering people is your example of a false claim. [laughs] 

Michael: I'm trying not to get sued, because I'm using an example that's so outlandish that no one is going to think that this is true. Also, this is actually a super bad example because there are certain claims about individuals that are always libelous, and one of them is that somebody has committed a crime. So, I'm technically libeling Gwyneth Paltrow by saying that she murdered a bunch of people with an axe.

Aubrey: You're making my greatest fear come true. Thank you.

Michael: Yeah, exactly. It's happening. Sorry.

Aubrey: [laughs]

Michael: Basically, these are all of the reasons why these apple manufacturers, growers are really mad about the fact that they can't win this case, because to a normal person, I think you look at this and you're like, "Okay, these guys said this thing that was on kind of dubious grounds. They destroyed our industry. And then, when we try to sue them, it doesn't go anywhere, because we can't prove that they acted with malice."

Aubrey: Yeah.

Michael: So, in 1992, after this case is thrown out, the agricultural producers, not just the apple people, but the everything people, start lobbying state governments to pass special laws to protect agricultural industries from libelous claims.

Aubrey: Boy, I'll tell you what, for every wacky news story, there is some extremely reactionary set of state-level policies. It's really something.

Michael: Exactly. Some fucking nightmare epilogue that no normal person is paying attention to. So, these laws go by various names. The official name or the one that the media uses the most is veggie libel laws, but people also refer to them as banana bills or sirloin slander, I think [unintelligible [00:28:15] 

Aubrey: [laughs] 

Michael: That's because it's a lot of like meat producers. 

Aubrey: Sirloin Slander is an amazing name for a Drag King. 

Michael: [laughs] 

Aubrey: That's a free one. 

Michael: So, the logic that the agricultural producers use is that there's a set of libel laws we're already protected by ordinary libel laws. Those work for Gwyneth Paltrow, because somebody said something mean about her, and she engages in the debate, and she holds a press conference. And six months later, her reputation is back where it was. That works for ordinary public figures. But our products are perishable. So, if we get libeled right before a harvest, by the time the record is corrected, we've lost hundreds of millions of dollars, and we're now vulnerable to this. So, we need an extra special set of protections. So, in the first years of the 1990s, 13 states pass veggie libel laws specifically to protect agricultural producers from defamatory claims. I'm not going to go through each of these laws individually because they differ in the specifics, but every single one of them has a far lower standard of evidence than the existing libel laws.

So, the first modification is the veggie libel laws get rid of the actual malice standard. A lot of them just prohibit journalists from making a false claim, which seems reasonable like, "Well, journalists shouldn't publish false claims." But the problem with the way that a lot of these laws are worded is that it's not clear how you would determine whether something is false. I've read a lot of legal analyses of these laws. A lot of them point out the fact that this would prohibit publishing reports about how cigarettes cause cancer in the 1940s and 1950s, because we didn't know that yet. The other big thing about this is that, right now, if Gwyneth Paltrow sues us for libel, she has to prove that our claims were false. Under the veggie libel laws, we would have to prove that they're true.

Aubrey: Whoa. 

Michael: So, the burden of proof shifts from the public figure with all the power and money that go along with that to the journalists. The other thing that these laws do is they allow anyone to sue. So, if you're growing apples, if you're processing apples, if you're shipping apples, if you're wholesaling apples, anybody, which basically means that it would be really easy to venue shop, because-- I think it's Ohio has one of the worst ones, where it's a criminal act to libel any agricultural producer. If we say on the show like, "Ooh, broccoli is full of chemicals," or something, then some random fucking person in Ohio could sue us under the most strict version of these laws, and we could go to jail.

Aubrey: Boy, a paradise for the incompetent, except, [Michael laughs] unless you're going after veggies. 

Michael: That was extremely libelous, Aubrey. 

Aubrey: [laughs] 

Michael: Please save your cease-and-desist orders. 

Aubrey: That's a quote from a thing. 

Michael: Yeah, exactly. That's on our T-shirt store. Don't worry about it.

Aubrey: We're just libeling you in merch.

Michael: Yes. 

[laughter] 

Michael: So, a lot of these laws are just straightforwardly unconstitutional. But of course, because kind of they're under the radar, you don't really notice 13 states passing these obscure libel laws. The public is not really paying very much attention to this but it's a little weird that there's this special set of defamation laws for farmers. Why shouldn't the auto industry get this? The aviation industry is also really important to Washington State. Should they just have their own fucking set of laws? The problem here is that politicians have an incentive to protect their industries. The preamble to a lot of these statutes is, "The agriculture industry contributes 40% of GDP to Ohio," da, da, da. If we libel Gwyneth Paltrow and she's mad, that doesn't really affect the economy of California. But if we libel almond producers, then all of a sudden, tax revenue goes down. 

Aubrey: Michael, I think you're underestimating how much Gavin Newsom loves Goop. 

Michael: That's true. [laughs] I've seen his skin. It's glowing.

Aubrey: [laughs] 

Michael: Yes. So, all of this brings us finally to Oprah Winfrey and April 16th, 1996.

Aubrey: A date which will live in infamy.

Michael: Kind of.

Aubrey: What happened on April 16th?

Michael: Oprah did an episode called Dangerous Foods in which she talked about the rapidly [mispronounces] metastasizing-

Aubrey: [laughs] 

Michael: -mad cow disease, Aubrey.

Aubrey: Leave it in. 

[laughter] 

Michael: So, we have to set the scene of 1996. This is Oprah. I don't know if it's at the height of her powers, but this is the moment when people are realizing how much power Oprah has. 

Aubrey: It sounds like we are post book club, but pre remember your spirit. 

Michael: Yeah, I think she hasn't done the turn into more highbrow stuff. There's a really interesting excerpt from Kitty Kelley's biography of Oprah, where she talks about this moment where she's straddling these two worlds. Actually, why don't I send this to you? 

Aubrey: Okay. "Oprah was at the top of her game in 1996 making more than $97 million a year and stacking up Daytime Emmys like firewood. She ruled talk show television then, because she gave her viewers compulsively watchable programming. It was not all celebrities all the time, but a combination of pop culture and dramatic first-person stories of abuse and survival, intermixed with books, movies, music videos, beauty makeovers, fad diets, and psychics, plus pressing issues of the day." Yeah, that is absolutely the Oprah of my adolescence. 

Michael: I looked up a bunch of old Oprah episodes that have ended up on YouTube from this era. The mix is incredible. So, one of them is called "wife comes face to face with husband's secret second family."

Aubrey: Holy shit. 

Michael: Maury Povich. There's one called "The 2-Headed Baby Miracle."

Aubrey: Bat Boy Escapes from Chicago lab. [laughs] 

Michael: Yeah. It's also like real tabloid stuff. That one's from 2003, which is pretty bad. But then, there's an interview with the cast of Friends. There's an interview and a performance with Prince. There's something called spring training, where it's like how to exercise and lose weight for spring. There's a reunion of All My Children, which is very funny to think about how much daytime TV was a big deal back then. She's also starting to move into this inspiration porn thing. So, she has an episode called Bouncing Back from Tragedy. It's just like people who something bad happened to them and now they're fine. The unifying theme is appealing to your most prurient interests. It's like, "Here's a bunch of weirdos and a bunch of celebrities and how to lose weight."

Aubrey: Yeah. 

Michael: It's like, "Yeah, just the worst parts of myself." [laughs] 

Aubrey: Totally. And because Oprah was doing not none, but less of the Maury Povich, Jenny Jones stuff, she was seen as a cut above.

Michael: Oh, yeah. 

Aubrey: Because she would talk about things and be like, "This diet works because of science." And people would be like, "This talk show mentioned science."

Michael: Yeah. And also, she's big enough that she can get big celebrity guests too. 

Aubrey: Absolutely. 

Michael: So, we are going to dive into the mad cow situation much more deeply next episode. 

Aubrey: Whoa.

Michael: But what do you know about mad cow disease and the whole outbreak and panic in 1996? 

Aubrey: I remember that I was 13 and I kept hearing jokes about it. 

Michael: Yeah, Jay Leno. 

Aubrey: I don't really know anything about mad cow. I remember that it was a huge freak out. It's similar to the E. coli outbreaks at Jack in the Box, and Sizzler, and all of those. I was aware ambiently in the way that a kid is aware ambiently that this thing is happening and it seems scary and adults seem freaked out. But I didn't really know anything about it, and I haven't gone back and learned about it. 

Michael: The mad cow panic is one of the few things that I've looked into for this show, where the more details you get about it, you're like, "Oh, it was a good idea to panic about this."

Aubrey: Oh.

Michael: It's genuinely fucking terrifying. So, it's something called a prion, which is your proteins are folding in your brain, and it's like a little error that gets folded in, and then the error sort of copies itself, and just folds and folds and folds. And over time, it causes literal fucking holes in your brain.

Aubrey: Oh, so we're in like syphilis territory. 

Michael: And the scariest thing about the mad cow stuff is that there's this years' long incubation period where there's no symptoms and there's no test for it. So, when cows get mad cow, it's like four years of just totally normal cow, and then they start getting these really fucked up symptoms, like they're trembling, they fall asleep on their feet, they rub themselves against the wall. I don't know if you ever saw that footage as a kid of a cow stumbling and trying to walk. It's really grim. 

So, there's this long incubation period followed by mad cow disease in cows. And then humans, it's the same thing. It can be, like, seven years that it's just happening in your brain. No symptoms and no way to fucking know if it's happening to you. Once you start getting mad cow as a human, it's like your brain gets foggy, you start losing your short-term memory, you fall down, you're super fatigued. Once people get it, there's a 100% fatality rate. You just die within a year.

Aubrey: Holy shit.

Michael: Then, I read three books on mad cow disease. I'm going to bore you to fucking tears next episode with the detail that we're going to get into. 

Aubrey: "I will bore you to tears in the next episode," is the single greatest cliffhanger we will ever have on the show. [laughs]

Michael: Threat/promise. Yes. 

Aubrey: I love it so much.

Michael: It's going to suck shit. Two hours long. 

Aubrey: [laughs] 

Michael: What I remember about this time is one of my brother's stoner friends telling me that, "It's possible that literally everybody has this because of the long incubation period."

Aubrey: Oh, my God. 

Michael: It could have been the case that 50% of the population has fucking mad cow and we won't know for like 10 more years. 

Aubrey: Yeah, this is a more grounded version of my childhood fear, which was the thing about swallowing a watermelon seed and then a watermelon growing inside you.

Michael: [laughs] You think you're pregnant, but it's not kicking. 

Aubrey: Yeah. [laughs] 

Michael: "Oh, my God, it's a watermelon."

Aubrey: And I'm nine. Yeah. [laughs] 

Michael: Yeah, it's perfectly round. So, Oprah's episode is in April of 1996. In March of 1996, Britain announces that there's been at least 10 people who've been infected with mad cow. At the time, no one really knew anything. This was the first that anyone in America had heard about mad cow. There's all kinds of panic going on mostly because of this incubation period. It's like, "Well, how many fucking cows have it in America? How many fucking people have it?" There were projections coming out of the UK that up to like 130,000 people were going to die.

Aubrey: Wow.

Michael: Also, America has a much larger beef industry per capita than Britain, and we eat a lot more beef than Britons. Just like all of the elements coming together for just a total freak out. So, on April 16th, Oprah does an episode called Dangerous Food. One of my greatest frustrations and obsessions in the last three weeks that I've been researching this is I could not find this fucking segment. It does not exist on YouTube, Vimeo, or the sketchy Chinese websites that are streaming episodes of Seinfeld. I could not get a transcript of it. The transcript was originally in the court documents, but it's now been redacted, which I think is really weird. 

Aubrey: Huh, that is really weird.

Michael: So, I had to piece together what was said in this segment from various court documents. There were two or three different biographies I had to look at. They're basically talking about like, "Well, this mad cow disease thing is a huge fucking deal in Britain. Everyone's losing their mind. Is this a risk in America? How worried should we be about this?" So, they have three panelists. The first is a guy named William Houston, who is with the USDA, and he's the country's leading expert on mad cow disease. The second guy they have is named Gary Weber. He's from the National Cattlemen's Beef Association. So, he's like the beef guy.

And then, the third guest is a guy named Howard Lyman. He is like a third-generation rancher. He grew up on a cattle ranch and took it over from his folks. In the, I believe, 1970s, he had two big scares that his brother died of cancer and then he was diagnosed with cancer. He linked this back to his diet and specifically to his consumption of animal products. After he recovered from cancer, he sold the farm and became a super hardcore animal rights activist. He's been involved in all kinds of environmental and animal rights charities throughout the years. In 1996, he's ambassador, like something VP, something, something for the Humane Society. And so, he's the third guest.

So, they have the academic guy, the beef guy, and the animal rights guy on this Oprah panel. She goes to the beef guy, and the beef guy is like, "Well, we actually have a lot of safeguards in place in America, and our system of beef is very different than it is in Britain." And then, she goes to the academic guy and he's like, "Yep, our system is very different. We're actually not very worried about this as a risk in America."

And then, she goes to Howard Lyman. Howard Lyman says that the way that mad cow spreads is through cows eating the brains of other cows. This is the way these little prion error messages spread between animals, is they infect brains and glands and spinal stuff. When other members of the same species eat that stuff of their own kind, they also get the little error folding. So, we are going to read the exchange that follows.

Aubrey: Oh, my God.

Michael: This is as close as I could come to piecing together the transcript. This is from a couple of different sources, but as far as I can tell, this is what was said afterwards.

Aubrey: I love this level of sleuthing.

Michael: Do you want to be Oprah, or do you want to be Howard? 

Aubrey: Ooh, I'll be Howard. 

Michael: You want to be Howard? Okay. I'll send this to you. I hope this comes through. It's like a massive brick. 

Aubrey: This might actually have graduated from brick to two by four.

Michael: Yeah. [laughs] 

Aubrey: Okay. "What it comes down to is about half of the slaughter of animals is non-sellable to humans. They either have to pay to put it into the dump or they sell it for feed. So, they grind it up, turn it into something that looks like brown sugar, add to it all of the animals that died unexpectedly, all of the road kills and the euthanized animals, add it to them, grind it up, and feed it back to other animals. It's about as simple as it can be. We are doing something to an animal that was never intended to be done." 

Michael: "You said this disease could make AIDS look like the common cold?"

Aubrey: "Absolutely." 

Michael: "That's an extreme statement, you know?" 

Aubrey: "Absolutely. And what we're looking at right now is we're following exactly the same path that they followed in England 10 years of dealing with it as public relations rather than doing something substantial about it. 100,000 cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has mad cow disease, it has the potential to affect thousands. Remember, today, 14% of all cows, by volume, are ground up turned into feed and fed back to other animals."

Michael: "But cows are herbivores. They shouldn't be eating other cows."

Aubrey: "That's exactly right. And what we should be doing is exactly what nature says. We should have them eating grass, not other cows. We've not only turned them into carnivores, we've turned them into cannibals."

Michael: "Now, doesn't that concern you all a little bit right here hearing that? It has just stopped me cold from eating another burger. I'm stopped."

Aubrey: Footage not found of Oprah never eating another burger. You know what I mean?

Michael: She does five shows a week. They're not meant to have a lasting impact on you, emotionally. 

Aubrey: They're not meant to be read out as from court transcripts in 2023?

Michael: Yeah.

Aubrey: Yeah. [laughs] 

Michael: But also, I can see how people freaked out about this. What this dude is saying is like, "We're eating fucking cow brains and cows are eating fucking cow brains." 

Aubrey: Well, even with the gross factor, I think there is a pretty deep and visceral revulsion at cannibalism for most folks So, even just conceptually, that thing-- I will say, one of my longest standing pet peeves is there is a barbecue restaurant that I drive by frequently, and their mascot is a pig serving barbecue. 

Michael: Oh, yeah.

Aubrey: That is dark.

Michael: That's really dark. Yeah, and sometimes the animated M&Ms eat M&Ms and you're like, "Oh, you're little friends."

Aubrey: [laughs] Yeah. Look, as long as the M&Ms that they're eating are appropriately feminine, it's fine. 

Michael: Yeah. [laughs] Okay, so I'm sending you another brick. 

Aubrey: Okay.

Michael: This is as close as I could come to understanding what it felt like to watch this segment. 

Aubrey: Got you.

Michael: So, this involves Howard Lyman, the animal rights guy, and also the beef guy, and Oprah. 

Aubrey: Okay.

Michael: So, why don't you also play the beef guy?

Aubrey: I'm the beef guy. 

Michael: As far as I could tell, this comes after the previous segment where he's like, "We've turned them into cannibals." And then, Oprah turns to the beef guy and she's like, "Is this true? Are you feeding cow brains to other cows?"

Aubrey: "Let me clarify that. There is a reason to be concerned. We've learned from the tragedy in Great Britain and made a decision here. We started taking initiatives 10 years ago to make sure this never happened here. Number one, we do not have mad cow disease in this country, and we have a 10-year history of surveillance to document that based on science. Also, we have not imported any beef into this country since 1985 from Great Britain."

Michael: "Are we feeding cattle to cattle?"

Aubrey: "There is a limited amount of that done in the United States."

Michael: The audience groaned and booed.

Aubrey: "Hang on just a second now. The Food and Drug Administration-"

Michael: "I have to just tell you that's alarming to me." This is Oprah interrupting him. 

Michael: "Now, keep in mind that before you view the ruminant animal, the cow, as simply vegetarian, remember that they drink milk."

Michael: More groans and boos.

Aubrey: "I'm saying we do not have the disease here. We've got 10 years of data, the best scientists in the world who are looking for this, over 250 trained technicians and veterinarians around the country. Everyone's watching for this."

Michael: So, now, Howard Lyman jumps in. 

Aubrey: "The same thing that we've heard here today is exactly what was heard for 10 years in England. 'Not to worry, we're on top of this.' If we continue to do what we're doing, feeding animals to animals, I believe we are going to be in exactly the same place. Today, we could do exactly what the English did and cease feeding cows to cows. Why in the world are we not doing that? Why are we skating around this and continuing to do it when everybody sitting here knows that would be the safest thing to do. Why is it? Why is it? Because we have the greedy that are getting the ear of government instead of the needy, and that's exactly why we're doing it."

Michael: Audience applause. You really inhabited Howard there, Aubrey. 

Aubrey: He's a real orator, that guy. 

Michael: So, you can see how Howard Lyman is just a way better communicator than the beef guy. I think the audience is also primed to not trust a dude from the Cattlemen's Association, which, yes, I agree completely.

Aubrey: Right.

Michael: You can see what's happening here is that they're not really focusing on the specific risks of mad cow. They're basically zeroing in on like, "This thing's fucking gross. They're grinding up cows and feeding them to other cows. Most people do not know that this is happening routinely in the food supply."

Aubrey: Yeah.

Michael: So, Oprah seizes on this thing that is objectively fucking gross and is like, "Are they feeding cows to cows or not?" This guy is basically called upon to be like, "Yeah, but we've been doing that for ages, and we haven't had mad cow." This is fucking gross, but you just don't really want to think about where your beef comes from, and there's a lot of fucking gross shit that goes on behind the scenes.

Aubrey: Well, and it's also worth thinking about what everyone is there to do. Howard Lyman is there to make extremely big claims to get folks further and further on board with not eating animals anymore. Beef guy is there to just defend his industry, which never feels great. That's never a welcome TV presence. And Oprah, the moderator of this conversation, is there to make a TV show. 

Michael: This is an utterly abysmal way to inform the public. What you've basically got is two interested actors. You've got an animal rights activist and a beef activist, neither one of whom have any incentive to give you a holistic understanding of what the fuck is going on in Britain and whether the same thing could happen here. You've basically got two people who are leaning toward hyperbole, and then Oprah is in the middle pretending to be like a moderate voice somewhere in between. That is a shitty, unbelievably shitty way to find out the truth. But it's a great way to have a compelling TV talk show, because you've got conflict. People like watching conflict. People like tension. So, you've got these great fireworks between the beef guy being like, "You know it, Howard. You're lying." He's like, "You're the greedy versus the needy." 

Aubrey: Totally. And then, the beef guy responds with, "Here's our staff structure and how many people we've assigned to the problem." And you're like, "Buddy."

Michael: Yeah, and the milk. He mentions milk for no reason. 

Aubrey: "They're not vegetarian. They drink milk." What? 

Michael: Again, whether or not there are specific false claims within this, the obvious takeaway that any reasonable person would get from this is like, "Well, fuck, don't eat beef."

Aubrey: Yeah.

Michael: So, this is wild. The next day, cattle prices, the wholesale price of cattle futures or whatever drops by the legal limit. It's illegal for cattle prices to drop by more than a $1.50 per day, and they drop by a $1.50. 

Aubrey: What? 

Michael: Yeah. They're calling it the Oprah crash. 

Aubrey: So, if we're thinking back to that little checklist for libel laws, there's your demonstrable harm. 

Michael: There's your harm. Exactly. 

Aubrey: That's really significant. 

Michael: So, in response, the beef industry loses its fucking mind. They pull a bunch of ads, and they do this huge letter writing campaign about how irresponsible it was of Oprah to publish this segment. 

Aubrey: The Cattlemen's Association is drunk with power off of their hardcore win with the food pyramid and they're like, "Who's our next target?" [laughs]

Michael: "We got them to change the design to be unbelievably shitty to make it as ugly as hell."

Aubrey: [laughs] 

Michael: So, this is wild. This doesn't actually come up in the lawsuit all that much, but a week later, Oprah then does a second episode following up where she invites back the beef guy to talk for another 10 or 15 minutes, and like, "Well, you were here last week. Maybe we railroaded you a little bit. Maybe you didn't get to say your piece." So, she does a whole other segment about like, "Well, what's the beef situation? How much is the mad cow a risk?"

Aubrey: She's trying to do a make good, huh?

Michael: Yeah.

Aubrey: This seems like either a good faith effort or a damage control thing, but either way giving them more airtime. 

Michael: So, she tries to do the correct the record. I think it's a much more boring segment, because there aren't really any fireworks. This also is not online, but according to descriptions of it, she's again grilling him about, "Well, are they eating other cows? What about the cow brains?" And he's trying to talk about these controls that they have in place for mad cow disease. And she's just fixated on, "This is fucking gross." Like, "Is this gross thing happening or not?" which it is to her credit. 

A month goes by, and on May 28th, 1996, a bunch of Cattlemen Association people, it's the Cactus Feeders Inc., which is very confusing because it's Cactus and Cattle files a lawsuit against Oprah Winfrey and Howard Lyman in Texas under Texas's False Disparagement of Perishable Food Products Act, which is one of the veggie libel laws that was passed in this wave. By far the weirdest fucking thing about the lawsuit, do you want to guess how much they sued her for? 

Aubrey: Is it in the billions or the hundreds of millions? 

Michael: This is the weirdest thing. It's $12 million.

Aubrey: What? 

Michael: Which is nothing for these lawsuits. 

Aubrey: That's so low. 

Michael: The apple people sued CBS for $200 million. 

Aubrey: Boy, oh boy, oh boy. 

Michael: It's actually very interesting that Oprah fought this rather than just paying it. I'm glad that she didn't, but she will eventually spend $5 million defending herself from this.

Aubrey: That's fascinating. 

Michael: Before we start to wrap up here, these are the complicated feelings I have about this. 

Aubrey: Yes, tell me. 

Michael: On the one hand, the Oprah segment was straightforwardly, really fucking irresponsible. We find out through the lawsuit, through the entire discovery process that goes on over the next couple of years, Oprah's team wanted to do a segment on the mad cow panic in the UK. Basically, they called around the CDC and the NIH and a bunch of experts and every single expert was like, "This is not really a risk in the United States for various boring structural reasons." They were like, "Expert, no. Expert, no. Expert, no. What about this random animal rights activist?" Then, they find Howard Lyman, who's willing to make a bunch of exaggerated and fairly unsubstantiated claims and they're like, "Okay, great, let's have this guy on." 

Then, not only do they have this guy on as a counterpoint to people that have more expertise in this area, they also edit out a shitload of stuff from the actual expert. So, this USDA expert guy, who's the country's leading expert on mad cow disease, apparently said a lot of the same things as the beef guy, but they cut him out because they're like, "Oh, it's redundant." But he's the closest thing you have to a referee who's like, "I've actually looked into this, and my view is much closer to the cattleman than it is to the animal rights guy."

Aubrey: Totally. And there's a way to structure that conversation that's like, "Hey, before we dig in on this complicated topic, we wanted to hear from the USDA about what their regulations are around something like this and how they're enforced." It's a much cleaner approach, but it's also not the best TV necessarily. 

Michael: Basically, they're doing something that we see all the time now where they're whipping a debate out of something that is not really the consensus of experts. There's not actually that much debate among experts at the time, because due to the long incubation period of mad cow disease, this condition was discovered in Britain in 1986. So, 10 years have already gone by. The US instituted pretty broad-based testing for mad cow disease of every cow that has symptoms and looks like it's tripping balls, they send a piece of its brain to a lab to test it for mad cow, and they've never found it. 

Aubrey: This is like COVID testing rules. Any symptoms, you get tested. 

Michael: Then the biggest thing that they didn't really ever communicate to the audience is that mad cow disease is a very British phenomenon. There's other countries in Europe that have very large cattle sectors that did not have mad cow. There's something specific about Britain that is causing the outbreak there. A lot of it was that Britain relies on this ground up bone meal stuff way more than America, because America has really, really, really cheap soybeans available. The whole point of grinding up fucking animals and feeding them to animals is to get cheap protein.

We have way cheaper protein available in the United States. To the extent that cattle producers were using ground-up cow brains, they were mostly feeding them to older dairy cows. Mad cow is not transmitted through milk. It's really only transmitted through brain and spine. All the academic reports on this are like, "Could it happen here?" Maybe. But in Britain, due to all of the structures of their cattle sector, it's like one case of mad cow becomes 10, becomes 100, and it metastasizes, which I actually managed to say. 

Aubrey: Nailed it. 

Michael: But in America, it's like if we had one case of mad cow, it would have become one other case or like two cases, and we're testing for it. 

Aubrey: I think the thing that's interesting about this story and this breakdown to me is nobody was making different strategic decisions. There wasn't a regulation breakdown in the UK. There wasn't anyone skirting any laws. There wasn't anyone making laws in bad faith. This was a case of folks working with the resources that were at their disposal, and the protein that was most available in the US had less of a risk of this specific thing. I'm always fascinated when we end up with these stories of, nobody necessarily did anything wrong or broke any laws and we're still here and that's gnarly.

Michael: I think the place that I landed on this was that it was a bad and irresponsible segment. This is very obviously a frivolous lawsuit. At no point in this segment did Oprah mention Texas beef. She was just talking about beef. And then because these laws allow basically anybody to sue, these two random cattle ranchers from Texas are like, "I'm suing you for damages." And even under Texas's veggie libel law, they still have to prove that Oprah and Howard Lyman knew the claims were false and said them anyway. 

So, in the filing, they say defendant Lyman is a vegetarian activist and lobbyist with an agenda to wipe out the US beef industry. And that defendant Winfrey intentionally edited from the taped show much of the factual and scientific information that would have calmed the hysteria it knew Lyman's false exaggerations would create. 

Aubrey: Boy, that part I find unconvincing. 

Michael: Yeah. 

Aubrey: "If people knew, they wouldn't have freaked out." Like, No. By the time someone says, "cows are eating cow brains-" 

Michael: Yeah, exactly. 

Aubrey: -you can't unring that bell, my guy. There's no amount of context that people are like, "All right, I get it. Cool."

Michael: Okay. So, now we come to the ending. Not really twist, because you already said that you know about it, but the ending-- [crosstalk] 

Aubrey: Cameo. 

Michael: The ending cameo. I'm sending you a photo. It might be sending you the file name rather than the file. I sent you a photo. 

Aubrey: Oh, no, I got a photo.

Michael: Okay, good. 

Aubrey: Yeah. 

Michael: See it? Do you see it? 

Aubrey: We have an Oprah Winfrey press conference in front of what looks like a courthouse. She's talking into the microphones. There is a wall of people behind her. 

Michael: Who is in that wall, Aubrey? Whose little bald head and mustachioed little mouth?

Aubrey: Dead center, it is Texas's favorite son, Dr. Phil. 

Michael: So, this is like the origin story of Dr. Phil. According to Howard Lyman's book, he charged them $250,000 to be a court consultant.

Aubrey: Is he a jury consultant?

Michael: Yeah, he's a jury consultant. That's his first job.

Aubrey: [laughs]

Michael: This is also where he gets his tough talking thing.

Aubrey: Yeah.

Michael: So, as she's preparing for the trial, apparently, Oprah is just rolling her eyes like, "You've got to be fucking kidding me. You're suing me over this dumb beef shit?"

Aubrey: Yeah.

Michael: Apparently, Dr. Phil sat her down and was like, "Oprah, if you do not take this trial seriously, the jury is going to know, the country is going to know. If you're rolling your eyes, you're going to fucking lose."

Aubrey: Well, and it looks like you don't care about the effects of your work is how it plays. You just get to say what you want, and then you get irritated if anybody tries to hold you to account, is the optics of that. 

Michael: He also warned her, he said, "If you fight this to the bitter end, the line at the 'sue Oprah window' is going to get a lot shorter." So, basically, he's like, "If they get you on this, fucking everybody's going to sue you."

Aubrey: Yeah, absolutely.

Michael: "You run a talk show that is making outlandishly false claims constantly." [laughs] 

Aubrey: Five times a week, you're on the air and you're saying wild stuff. Yeah. 

Michael: You're just saying shit and you're really not vetting-- "As we see from the editing and the choice of guests and stuff, you're running a pretty irresponsible ship, Oprah. If you don't fight this, fucking everybody's going to sue you. So, you need to win this to prove the fact that it's a huge hassle to sue Oprah." Then, I've seen clips on her show where she talks about how we met and stuff like that. It's always like this speech that she references. His kind of tough-talking persona that, of course, has become the fucking odious Dr. Phil that we know now, this all comes out of him being the only person who stands up to Oprah and is like, "Hey, nut up and fucking try to win this lawsuit and take this seriously."

Aubrey: Nut up. 

Michael: I don't know if he said, "Nut up." Probably not.

Aubrey: [laughs] 

Michael: So, this is where we're going to leave it for Part 1. Next episode, we are going to determine whether Howard Lyman's claims are false by learning a little bit more about the mad cow outbreak and getting to the denouement of Oprah's trial. So, no googling to find out what happened 30 years ago. 

Aubrey: I will do no googling. I will mention nothing to my family here. I will go hire a lawyer, because my anxiety is in a real fear pitch at this point. [laughs] 

Michael: You've said some things about Gwyneth today.

Aubrey: [laughs] 

[music]

[Transcript provided by SpeechDocs Podcast Transcription]

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Aubrey Gordon

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Michael Hobbes

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