In the First Circuit’s ruling issued today regarding Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Foundation, the opinion was authored by Judge Julie Rikelman and joined by Judges Gustavo Gelpí and Seth Aframe.
The appeal centers on the doctrine commonly known as the “group defamation rule.” The rule generally bars a defamation claim when the statement concerns a broad class unless the context or the wording itself suggests that the assertion targets specific members of that class.
In this case, several Maine lobster industry players, including corporations and trade groups, sued the Monterey Bay Aquarium Foundation under Maine law for defamation. The plaintiffs challenged the Aquarium’s advisories urging consumers to avoid American lobster on the grounds that lobster fishing endangers the endangered North Atlantic right whale, even though the statements did not single out particular individuals or entities….
The district court granted the motion to dismiss, holding that the Aquarium’s statements were applicable to all members of the Maine lobster industry. We reject the district court’s application of the group defamation rule and therefore reverse….
Under Maine law, a defamation claimant must show that the allegedly defamatory statement was “of and concerning” the plaintiff. When a broad statement about a large group includes the plaintiff as a member, courts have routinely considered the group defamation rule as a bar to satisfying the “of and concerning” element. The rule states that defamation of a large group does not support a suit by an individual member unless there is a showing of special application of the defamatory matter to that individual.
The group defamation rule predates the Constitution. Since the 19th century, courts justified it, in part, out of concern that letting every member of a large group sue for defamation would endanger “free discussion” by unleashing a flood of acrimonious and groundless litigation. …
The contemporary reading of the group defamation rule is captured in the Second Restatement of Torts. Because the Law Court has embraced the Restatement’s approach in other defamation aspects, we anticipate (and the plaintiffs accept) that Maine’s Supreme Judicial Court would likewise adopt this framework for the group defamation rule. Specifically, Section 564A of the Second Restatement provides:
- the group or class is so small that the matter can reasonably be understood as referring to the individual member, or
- the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member.
The group defamation rule, as described in the Second Restatement, comprises a broad principle—“no action lies for the publication of defamatory words concerning a large group or class of persons”—with two exceptions. Id. cmt. a. The first is the “small-group exception,” which typically applies to groups of “25 or fewer” individuals. {As the Second Restatement explains, when the defamed group is sufficiently small, the words may reasonably be understood to refer personally to any member of the group.} Since the statements here described the activities of roughly 5,600 Maine lobstermen, the district court concluded that the small-group exception did not apply, and the plaintiffs did not contest that determination on appeal….
The other exception is the “particular-reference exception.” The key element of this exception is a *particular* reference to the plaintiff—”particular” meaning distinctive among other examples within the same general category. For many years, courts have held that a defamatory statement that affects every member of a large group is not particular to the plaintiff…. The mere possibility that the statement could pertain to every member of a large group is insufficient to invoke the particular-reference exception. As one court explained, evidence that others understood a statement aimed at a large group to refer to a plaintiff based solely on the plaintiff’s membership in that group does not satisfy the “of and concerning” requirement under the group defamation rule….
Finally, we recognize—as the Aquarium and amici emphasize—that reading the “of and concerning” requirement too broadly could raise constitutional concerns if it chilled public discussion on important matters….
The plaintiffs contend, however, that the group defamation rule should not foreclose their claims. Their central argument is that the statements’ factual character—specifically, the claim that the fishing gear used by the plaintiffs endangers the North Atlantic right whale—means the statements must apply to every person involved in the fishery. They thus argue that the statements are not the kind of rhetorical hyperbole typically directed at whole industries, and for that reason the district court properly allowed their case to proceed.
Admittedly, many instances where the group defamation rule bars suits involve exaggerated language. But that is not universally true.
Moreover, we are not persuaded that the statements actually and necessarily apply to each plaintiff. Some plaintiffs are lobstermen or associations representing them—the very individuals who utilize the targeted fishing gear. Yet the Aquarium notes that others—such as Bean Maine Lobster—assert they are engaged only in downstream activities like marketing and selling lobster.
In any event, the plaintiffs have pointed to no case applying the particular-reference exception to permit a claim against a large group based on the theory that the challenged statements arguably referred to every member of the group. That liability theory is allowed under the Second Restatement only with respect to small groups; it is not permitted for large groups, which must rely on the particular-reference exception….
The plaintiffs rely on Fawcett Publications, Inc. v. Morris (Okla. 1962)—a decision predating the Second Restatement—and on New York and Utah decisions that follow that approach. In Fawcett, the Oklahoma Supreme Court adopted a multi-factor test for group defamation claims, considering factors such as the group’s size, the intensity of suspicion cast upon the plaintiff, and the plaintiff’s prominence within the group. But that approach is not the Second Restatement approach, and we decline to conclude that Maine’s Law Court would align with a small minority of states that embrace the multi-factor framework. … Although the Aquarium does not dispute that it intended the statements to refer to the plaintiffs insofar as they participate in the American lobster fishery, and the complaint alleges facts suggesting third parties understood the statements to refer to the plaintiffs, here “more is required” under the Restatement framework…
Finally, we are not convinced that Maine’s Law Court would embrace the other rationales for applying the particular-reference exception invoked by the district court. The district court stressed that the statements were not merely informative but urged readers to act. Yet we have found no precedent suggesting that the fact-driven advocacy nature of a statement can push it beyond the group defamation rule. And we hesitate to conclude that the Law Court would adopt such a limitation when, as amici note, calls to action—including urging boycott of products and industries—are protected by the First Amendment….
Amy Mason Saharia (Williams & Connolly LLP) served as the lead attorney for the Aquarium. Thanks to Paul Alan Levy for the pointer.
