The United States Court of Appeals for the First Circuit issued an interesting torts decision yesterday on group libel. In Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Found., a unanimous appellate panel ruled that the Maine lobster industry could not sue the Monterey Bay Aquarium Foundation for saying that Maine lobstering is all wrong for the right whale.
The controversy began after the Aquarium told the public to avoid lobster because lobster fishing poses a risk to the endangered North Atlantic right whale. The Maine lobster industry employs roughly 6000 people and catches a whopping 80 percent of the “lobster landings.”
The Aquarium maintains a program called Seafood Watch, which assigns ratings to different species of seafood, “based on environmental impact and sustainability.” It gives a “red” rating to seafood that “comes from sources that don’t align with [Seafood Watch’s] guiding principles.” It gave a red rating to lobster. The reason was that lobster fishing was all wrong for the right whale:
“For many years, the Aquarium has raised concerns about the impact of fishing on the North Atlantic right whale, which is found primarily in the waters of the North Atlantic Ocean. The North Atlantic right whale is listed as an endangered species under the Endangered Species Act and is protected under the Marine Mammal Protection Act. According to the Aquarium, one threat to the North Atlantic right whale is the risk of entanglement in fishing gear, including the buoy lines lobstermen use to mark the placement of their lobster traps.”
The industry noted that the Aquarium previously gave a “yellow” rating, and since then the industry has implemented major reforms to protect whales. However, the Aquarium then changed the rating to red and issued a press release that recommended that consumers “[a]void American lobster caught by trap from Georges Bank and the Gulf of Maine stocks due to risks to the critically endangered North Atlantic right whale and insufficient measures for reducing these risks.”
While the press release did not name any companies, the litigants presented evidence of a sharp decline in sales. For example, Bug Catcher, Inc. estimated that it lost about 20% of its business after the Aquarium issued the “red” rating.
The industry sued for group libel.
We have repeatedly discussed group libel cases. They routinely fail. Indeed, the group defamation rule (rejecting such claims) goes back to the 1700s in England. R v. Alme & Nott (1699) 91 Eng. Rep. 790; 3 Salk. 224 (KB) (per curiam).
Such lawsuits are very difficult to maintain. In Neiman-Marcus v. Lait (1952), a New York federal district court addressed a defamation claim arising from the publication of the book “U.S.A. Confidential.” The author wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls.” It also claimed that “most” of the salesmen in the men’s store were “faggots.” The store had nine models, 382 saleswomen and 25 salesmen. The court found the size of the group of women was too big to satisfy a group libel standard. However, the size of the group of salesmen was viewed as sufficiently small to go to trial.
There have been rare wins under the exception to the group defamation rule. For example, in Ball v. Taylor, the U.S. Court of Appeals for the Eighth Circuit allowed about 100 employees to sue over a statement about disability fraud. However, the statement was accompanied by a document that specifically identified each individual employee by name and address.
The case is reminiscent of the Oprah litigation in Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir. 2000). The case was based on a show involving Oprah Winfrey called the “Dangerous Food” show, which dealt with “Mad Cow Disease.” Winfrey discussed the new-variant CJD in Britain. After hearing from various experts about the dangers of Mad Cow Disease, Oprah said she would not eat ground beef. Showing the power of Oprah, the court reported that “following the April 16, 1996, broadcast of the “Dangerous Food” program, the feed cattle market in the Texas Panhandle dropped drastically. In the week before the show aired, finished cattle sold for approximately $61.90 per hundred weight. After the show, the price of finished cattle dropped as low as the mid-50’s; the volume of sales also went down. The cattlemen assert that the depression continued for approximately eleven weeks.” The industry sued but lost before a Texas jury.
These cases are often brought not as group libel but, as with Oprah, as a “product disparagement” action. That is akin to defaming a product like beef.
Group libel is tough outside of small groups like the salesmen at one Neiman Marcus store.
In this case, the Aquarium moved to dismiss on the grounds that the statements were (1) about the Gulf of Maine/Georges Bank area lobster industry at large, not “of and concerning” the plaintiffs specifically, and (2) constituted non-actionable scientific opinion, rather than defamatory assertions of fact. It also asked for dismissal under Maine’s anti-SLAPP statute, arguing that its rating and statements constituted protected petitioning activity.
The district court ruled against dismissal and wrote an interesting opinion on why group libel is viable in this case. It noted that, under the Second Restatement of Torts Section 564A, there is an exception to group defamation when “the circumstances of publication reasonably give rise to the conclusion that there is particular reference to [a] member [of the group].” The appellate court noted the four-point reasoning of the district court:
First, “the industry-wide nature of the Statements necessarily implicated each and every member of the Plaintiff group.” Id. at *47-48. Second, the Statements were not “the type of hyperbolic statements that undergird the group defamation rule” but instead “purported to be based upon scientific data.” Id. at *48. Third, the Statements “included a call to action” directing consumers to avoid purchasing American lobster. Id. Fourth, and finally, certain of the plaintiffs’ customers had specifically referenced the Report as influencing their decision to stop purchasing the plaintiffs’ lobster. Id.
The First Circuit, however, rejected that analysis. The panel ruled that this case not only did not meet the “of and concerning” requirement but raised serious free speech concerns:
“we are mindful that — as the Aquarium and amici point out — a broad reading of the “of and concerning” requirement may raise constitutional concerns to the extent that it deters speech on public matters. See, e.g., Emerito Estrada Rivera-Isuzu de P.R., Inc. v. Consumers Union of U.S., Inc., 233 F.3d 24, 28 (1st Cir. 2000). “[S]peech on public issues occupies the ‘highest rung of the h[ie]rarchy of First Amendment values.'” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).”
I found both the district court opinion and the appellate opinion to be some of the best discussions of the group defamation rule in years.
Here is the opinion: Maine Lobster opinion
Thank heaven for stopping loggers in the Sierras. If not, all Sequoia Gigantia would have been cut for wood chips and lumber.
The cost of lobster rolls just went up 20%? Doesn’t it sound like Commerce v Animal Law?
Thank heaven for stopping loggers in the Sierras. If not all of the Sequoia Gigantia would have been cut for wood chips and lumber.
The blight created by abandoned industry is notable. Live on right whale. Lobster industries can continue to improve practices.
Perhaps the fishing boats being stopped in the area are looking for lobster and not drugs. 🤔
I have major problems with defamation laws overall. While I am on rare occasions sympathetic to the plight of those defamed, the vast majority of time defamation and libel is used as a political axe to silence criticism – as in this case.
I absolutely support boycotting the aquarium over this stupidity.
I find the legal history of group libel cases practically hillarious.
It is aparently NOT ok to call one women a prostitute – but if you call a large enough group of women prostitutes that is no longer libel ? Then Turley prduces the twisted history of group libel – how many people do you have to slander before it becomes protected speech ?
I find the aquariums defenses – equally absurd – No this is not some statement of science – have we learned nothing from peering behind the curtain of science over the past decade ? Science suffers from Massive politicization – both of the left wing kind and just of the entrenched powerful figure kind. Regardless claims of the kind that the aquarium are making are with certainty false.
regardless, there are so feww defimation cases that i have seen in the past several decades that have ANY merit – I am perfectly happy to get rid of defamation laws entirely.
If people are stupid enough to be persuaded by the aquarium – screw them. Regardless, no one is entitled to any job – not even an entire industry. If the Aquarium wants to destroy an industry – let them try. My suggestion is that the lobster industry go after the aquarium for enslaving squid. The very same arguments that challenge the morality of various forms of fishing – are equally effective against Aquariums. Often the best defense is a good offense.
Libel and slander, defamation laws, are unconstitutional.
Freedom of speech and of the press means Americans are free to express their views, challenge others’ statements, and refute them without government interference.
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
________________________________________________________________________________________________
First Amendment
Congress shall make no law…abridging the freedom of speech, or of the press….
Wrong. Free speech does not mean speech without consequences. Just like you can’t yell fire in a crowded theater you can’t tell bold faced lies about someone (except in political campaigns which are exempt from that law which is stupid law so we all have to suffer through the mudslinging lies).
The problem is as the previous commenter posted is people are trying to use it as a political axe to grind just like bar complaints. I like if the plaintiff loses they pay all court costs and a small percentage of the amount sued for. That would stop the frivolous lawsuits.
Sorry, Einstein, “Congress shall make no law … abridging the freedom of speech, or of the press….”
That you disagree and don’t like it does not bear.
Sounds like Einstein’s dog.
To believe that State defamation laws are unconstitutional I assume you must agree with the Supreme Court that the first amendment applies to State legislatures based on the 14th amendment.
‘Those guys said that doing $THING is bad, because $BAD_EFFECT_OF_THING, but we lose money if fewer people do $THING, so those guys owe us money’ is pretty dumb.
‘Loser pays’ would stop most of this nonsense.
–Shannon
“Risk of entanglement in fishing gear, including the buoy lines”? Therefore we decree, all liberals of the planet earth, that humans must abandon the planet Earth immediately so that the right whales can survive unhindered by capitalist’s murderous actions.
Coding is a possibility.
Well this is boring.
Cartoons are still on.
Do not build cornerstone to cornerstone and be good Stewards of the land…
I guess the first circuit won’t be having this year’s Christmas party at Red Lobster🤭?
“. . . the Aquarium told the public to avoid lobster . . .”
Here’s a better idea:
Avoid any institution that elevates animals (or insects) above man.
Man did not create the web of life, he is only a strand within it.
Correct. But he is the only creature on the planet to ponder the morality of his actions.
A Lion, a Tiger, a Bear a Wolf a shark will do whatever their instincts program them to do – regardless of any moral claims regarding their actions.
No Wolf will ask does my conduct threaten the tapestry of life ?
Throughout nature predators routinely kill their prey to near extinction – posing the same threat to themselves.
How would you know what an animal “feels “? It is shown that animals feel loss and sadness when they lose an offspring. Animals for the most part don’t kill to kill, they kill to eat or to remove competition for food in their domain.
Did I say one thing about what an animal “feels”.
I almost never write about the ‘feelings’ of humans – why would I write about those of animals?
What I said is that only humans ponder the morality of their actions.
This is actually critical – you can not have free will or self government at any consequential scale without consciousness of morality.
Other animals kill for many reasons – including that the perception they are threatened.
They kill to defend teritory.
They will kill in their own self interests – just as humans do.
They also kill because it is their nature.
Most house cats do not eat mice, and they do not kill them because they are hungry.
Now they’re in a really crabby mood 🦀🦀🦀 🦞
Decision for the plaintiffs.