Lobstermen Chris Anderson, left, and Gerry Cushman sort lobsters in Port Clyde in 2023. (Derek Davis/Staff Photographer)

The Maine lobster industry’s defamation lawsuit against a California aquarium that red-listed the fishery as a threat to an endangered whale took a hit this week in federal court, with judges voicing skepticism over the industry’s legal arguments.

During oral arguments, a three-judge panel questioned whether an industry of 5,600 members can legally claim libel over scientific opinions publicized by the Monterey Bay Aquarium about the rope-based fishery’s impact on the endangered North Atlantic right whale.

“If people want to talk about things happening in the world, if they want to talk about a certain environmental issue, they are going to talk about big picture framing,” said U.S. Circuit Judge Julie Rikelman. “If there are defamation concerns, it will squelch important public debate.”

The judges’ pointed questions suggest the industry faces a steep climb to keep its legal challenge alive in the appeals court. U.S. District Judge John Woodcock allowed the claim to proceed last year, ruling the industry’s reputation and goodwill deserve legal protection.

A Port Clyde lobster fisherman, Gerald Cushman, joined the Maine Lobstermen’s Association and other trade groups to file the 2023 lawsuit against the aquarium’s sustainable seafood consumer-education program, accusing the organization of tanking lobster prices.

The Maine Lobstermen’s Association declined to comment on the proceedings, noting it was still in litigation.

At the heart of the dispute is the aquarium’s 2022 decision to “red-list” U.S. lobster, a label that urges consumers and major retailers to avoid the product. The aquarium argued that the seabed-to-surface ropes used to set traps are entangling right whales and driving them to extinction.

The judges Monday pushed the industry’s lawyer, Megan Barbero, for an example of a defamed individual. In response, Barbero pointed to Cushman, who said the red-listing drove several of his lobster-buying clients away. The industry as a whole suffered a 40% price drop, Barbero said.

Gerry Cushman is a sixth-generation lobsterman in Port Clyde. He joined the Maine Lobstermen’s Association and other trade groups to file a 2023 lawsuit against the Monterey Bay Aquarium. (Derek Davis/Staff Photographer)

Maine’s lobstermen argue the aquarium’s warnings are based on faulty science. In legal briefs, industry plaintiffs emphasized that Maine fishing gear has been found responsible for just one right whale death in the past 22 years.

Barbero pushed back against the judge’s suggestion that the Maine lobster fishing industry as a whole was too big to be defamed.

“No case has ever set a limit above which a group defamation claim couldn’t lie,” Barbero said. “It’s not about counting heads.”

The stakes are high for the state’s economy. The lobster industry remains a vital cornerstone of coastal Maine’s identity and its financial stability. The boat value of the 2025 harvest was $461.4 million. Economists say the downstream supply chain is worth $1 billion more.

However, the three-judge panel appeared wary of the precedent such a lawsuit could set for free speech, noting that the plaintiffs included not just fishermen but also trade groups that did not even use the fishing gear that Monterey Bay Aquarium claims is killing right whales.

U.S. Circuit Judge Seth Aframe noted that the case “really doesn’t feel like a defamation claim.”

“The more you broaden the class of people that fall within this, the more it feels like everybody can sue because they work in an area that has some political tensions and now everybody in that industry can sue,” Aframe said. “That does trouble me from a First Amendment perspective.”

Rikelman echoed Aframe’s concerns, pointing out that the aquarium’s environmental warnings did not identify or target specific people.

“There’s no photograph of the plaintiff,” Rikelman said. “There’s nothing, it’s just that the person’s a member of a group.”

If the court allowed the suit to proceed, it could effectively “eliminate the group defamation rule altogether” by making it too easy for individuals to claim they were libeled by general statements about their profession, Rikelman said.

The appellate judges must decide whether to uphold the ruling of Woodcock — an appointee of President George W. Bush — or dismiss.

The three appellant judges — appointed by President Joe Biden — did not provide a timeline for when they would issue their final decision.