Statement About Maine Lobster Industry as a Whole Can't Be Actionable Group Defamation

From today's First Circuit decision today in Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Found., written by Judge Julie Rikelman and joined by Judges Gustavo Gelpí and Seth Aframe:

This appeal concerns the so-called "group defamation rule." Under that rule, a defamatory statement about a large group is not actionable unless the statement or its context indicates that it is targeted at specific members of the group.

Here, multiple companies and organizations involved in the Maine lobster industry sued the Monterey Bay Aquarium Foundation ("the Aquarium") for defamation under Maine law. The plaintiffs challenged the Aquarium's statements recommending that consumers avoid eating American lobster because lobster fishing poses a risk to the endangered North Atlantic right whale, even though those statements did not single them out in particular….

The district court denied [a motion to dismiss], concluding that the Aquarium's statements applied equally to each member of the Maine lobster industry. We disagree with the district court's application of the group defamation rule and thus reverse….

To maintain an action for defamation under Maine law, a plaintiff must establish that the alleged defamatory statement was "of and concerning" them. When a statement defames a large group of which the plaintiff is a member, courts have generally concluded that the plaintiff cannot satisfy the "of and concerning" element by virtue of the common-law principle known as the group defamation rule. Under this rule, "[d]efamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself."

The group defamation rule predates our Constitution. And since the 1800s, courts have justified the rule, in part, based on the concern that affording every member of a large group a cause of action would threaten to stifle "free discussion" beneath an avalanche of "embittered and boundless litigation." …

The modern understanding of the group defamation rule is set out in the Second Restatement of Torts. Because the Law Court has adopted the Second Restatement's approach to other aspects of defamation law, we predict (and the plaintiffs agree) that the Law Court [Maine's supreme court] would adopt its approach to the group defamation rule as well.  Specifically, § 564A of the Second Restatement states:

One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

• the group or class is so small that the matter can reasonably be understood to refer to the member, or
• the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.

The group defamation rule, as articulated in the Second Restatement, thus consists of a general 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" people. {As the Second Restatement explains it, when a "sufficiently small" group is defamed, "the words may reasonably be understood to have personal reference and application to any member of" the group.} Because the Statements here described the activities of some 5,600 lobstermen in Maine alone, the district court found that the small-group exception did not apply, and the plaintiffs have not argued otherwise on appeal….

The other exception is the "particular-reference exception." The linchpin of this exception is the requirement of a particular reference to the plaintiff—"particular" in the sense of "distinctive among other examples or cases of the same general category." For many years, courts have concluded that a defamatory statement that applies equally to every member of a large group is not particular to the plaintiff….  The fact that a statement may apply to every member of a large group is not enough to trigger the particular-reference exception. As one court put it, "evidence that others 'understood'" a statement directed at a large group to refer to a plaintiff "based solely upon [the] plaintiff's membership in the referenced group will not satisfy the 'of and concerning' requirement" under the group defamation rule….

Finally, 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….

The plaintiffs insist, however, that the group defamation rule should not bar their claims. They rest on one main point in making this argument: that the Statements' factual nature, including the claim that the type of fishing gear used by the plaintiffs endangers the North Atlantic right whale, means that the Statements necessarily apply to every member of the fishery. Thus, they contend, the Statements are materially different from the hyperbole usually lobbed at entire industries that are subject to critique, and for that reason, the district court was correct to permit their claims to proceed.

To be sure, many cases barring claims against large groups based on the group defamation rule involve hyperbolic statements. But not all such cases do.

Nor are we convinced that the Statements in fact necessarily apply to each plaintiff. Certainly, some of the plaintiffs are associations of lobstermen or are lobstermen themselves; in other words, the individuals and entities directly using the fishing gear targeted by the Statements. But as the Aquarium notes, others—including lead plaintiff Bean Maine Lobster—allege they are only involved in downstream activities such as "market[ing] and sell[ing]" of lobster.

Regardless, the plaintiffs have not cited, and we have been unable to find, any case applying the particular-reference exception that allowed a claim against a large group to proceed on the theory that the challenged statements arguably applied to each member of the large group. Instead, that theory of liability is permitted by the Second Restatement as to small groups.  But it is not permitted as to large groups, which must rely on the particular-reference exception….

The plaintiffs rely on Fawcett Publications, Inc. v. Morris (Okla. 1962)—a case that predates the Second Restatement—and New York and Utah cases that follow its approach. In Fawcett, the Supreme Court of Oklahoma adopted a multi-factor test for group defamation claims, weighing factors such as the group's size, "the intensity of the suspicion cast upon the plaintiff," and the prominence of the plaintiff within the group. But that is not the Second Restatement test, and so we decline to hold that the Law Court would join the small minority of states that follow the multi-factor approach. … Although the Aquarium does not dispute that it "intended the statement[s] to refer to the" plaintiffs insofar as they fish in the American lobster fishery, and the complaint alleges facts suggesting that third parties understood the Statements to refer to the plaintiffs, here … "more is needed" [under the Restatement approach] …

Finally, we are not convinced that the Law Court would endorse the other rationales for applying the particular-reference exception cited by the district court. The court emphasized that "the Statements were not merely informational but included a call to action."  But we are not aware of any precedent suggesting that the advocacy-based nature of a statement may take it beyond the group defamation rule. And we hesitate to conclude that the Law Court would impose such a limitation when, as amici highlight, calls to action—including calls to boycott products and industries—are protected under the First Amendment….

Amy Mason Saharia (Williams & Connoly LLP) was the lead lawyer representing the Aquarium. Thanks to Paul Alan Levy for the pointer.