Appeals Court Skeptical of Lobster Industry's Defamation Suit

A federal appeals court has signaled that it may not allow a defamation lawsuit brought by New England fishing businesses and trade groups against a California aquarium to proceed, citing the case's potential effect on free speech.

The plaintiffs sued the Monterey Bay Aquarium after its Seafood Watch conservation program placed American and Canadian lobster on its do-not-eat "red list" in 2022. The Boston-based 1st U.S. Circuit Court of Appeals is now deciding whether the suit can go forward.

During oral arguments on July 26, Judge Seth Aframe said the complaint does not strike him as a defamation claim and that he finds the case troubling "from a First Amendment perspective."

"The more you broaden the class of people that fall within this, the more it feels like everybody can sue," Aframe said.

Seafood Watch placed lobster on its avoid list because of the threat that entanglement in fishing gear poses to rare whales, including the North Atlantic right whale. The lobster fishing industry, based mostly in Maine, says that characterization inaccurately portrays it as a danger to whales, amounts to defamation and has caused economic harm. The industry argues the whales face greater threats from other fisheries, including the Canadian snow crab fishery.

Conservation groups have long argued that both lobster and crab fisheries endanger the whales, and government agencies have acknowledged that gear entanglement is a critical threat to the animals.

Kevin Lipson, an attorney for the plaintiffs, said Wednesday the industry is standing by its claim despite the judges' comments. "Monterey Bay Aquarium in their Seafood Watch report didn't disclose any of the countervailing evidence. In fact, they hid that evidence," Lipson said.

A representative for the aquarium declined to comment Wednesday. At oral arguments, Amy Saharia, an attorney for the aquarium, said Seafood Watch did not single out any of the plaintiffs by direct reference.

Seafood Watch is among the most cited seafood sustainability reports, and many restaurants and stores use it to decide what to carry. Some major retailers, including Whole Foods, said they were pulling Gulf of Maine lobster after the red listing.

A lower federal court ruled last year that the lawsuit could proceed after the aquarium asked that it be dismissed.

Maine fishermen caught more than 78 million pounds (35 million kilograms) of lobster last year, a down year by recent standards. The catch was worth more than $460 million at the docks.