Smithfield and its subsidiary, Murphy-Brown, have won an important First Amendment gag order case in the 4^thU.S. Circuit Court of Appeals. Smithfield’s subsidiary has lost 3 times in U.S. District Court.

On April 26, 2018, a jury ruled Smithfield and its subsidiary were liable for $50 million to ten plaintiffs in cases where hog production produced a nuisance, such as undue amounts of odors, insects, pests, and noise and debris.

On June 29, 2018, two plaintiffs were awarded $25 million in punitive damages again claiming odors, flies and noise generated from truck traffic.

In a third case, six plaintiffs sued Smithfield Foods Subsidiary, Murphy-Brown, and were awarded a whopping and outrageous $473.5 million in punitive damages.

The Right-to-Farm defense was not sufficient to protect the farming operations. (All of these amounts will be reduced substantially pursuant to a North Carolina statute.)

The U.S. District Court judge in the Smithfield case imposed a gag order restriction on participants and potential participants in the Smithfield cases. The gag order is the subject of the Court of Appeals decision of Oct. 29, 2018. The three-judge panel excoriates the district court judge for imposing a gag order on the participants and potential participants in the nuisance suits brought against Smithfield’s subsidiary.

The Appeals Court stated, “We direct the district court to vacate the gag order and allow the parties to begin anew under the guidelines set forth below ...” The panel noted that jury pools are always exposed to publicity, but believed the trial judges’ gag order was too sweeping on all the parties, including their lawyers, representatives, agents, as well as all potential witnesses. The district court judge had stated that any extrajudicial statement or interview given to anyone in the public communications media was prohibited. The judge issued a gag order on June 27, 2018 because “…the volume and scope of prejudicial publicity observed led to a substantial risk of additional publicity tainting or biasing future jury pools.”

Smithfield and its subsidiary Murphy-Brown on July 6, 2018, petitioned the U.S. Court of Appeals to review the gag order issued by the District Court. In what the panel perceived to be a “cute maneuver” the district court vacated its gag order on Aug. 31, 2018. This was an obvious effort to deprive the U.S. Court of Appeals’ jurisdiction. Instead, it is clear the district court judge infuriated the Court of Appeals judges because it instructed the parties to seek a new gag order.

The Court of Appeals panel said the District Court's decision to revisit its June 27 gag order “was ill-advised.” The Court of Appeals panel stated, “Since the Aug. 31 order so plainly undercut the Court of Appeals in the orderly exercise of its own jurisdiction, it cannot be allowed to moot the petition.” The 4^thCircuit panel also said, “First, it is self-evident that the challenged order was undone too quickly for appellate review.” The Appeals panel excoriated the District Court judge stating, “This sort of withdrawal risks a series of orders too short to be reviewed but too damaging to be ignored.” The Court of Appeals panel then engages in a lengthy discussion of the Constitution’s First Amendment and again gives a legal tongue lashing to the U.S. district court judge.

The Appeals Court told the district court judge his gag order was not narrowly tailored and included no findings as to specific individuals. The gag order even treated lawyers the same as potential witnesses and the gag order appeared to be a blanket order covering over 20 cases that will be tried over several years. The 4^thCircuit panel made it clear to the district court judge that “gag orders should be a last resort, not a first impulse.”

Smithfield and Murphy-Brown have won a victory against a judge who seems inherently opposed to agriculture. This judge has now been replaced after presiding over the three huge losses suffered by Smithfield.

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.