About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Monday, November 4, 2013

Blackfish / White Lies? (A Prologue)



Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments


In Blackfish, director Gabriela Cowperthwaite has given the world a very effective and compelling piece of film-making.  While I was not able to catch this documentary in the theaters during its limited release last summer, I was able to catch it on CNN earlier this week and, as a lawyer, I am compelled to admit to some appreciation for the work that was done.  Blackfish is disturbing and, at times, difficult to watch.   It makes a compelling visceral argument against killer whale captivity in general and against SeaWorld in particular.  It is a film that stays with you after you watch it.  It is one of the better pieces of advocacy that I’ve seen in recent years, and, particularly given my interest and involvement in this industry, it made me want to read a bit more.  And that’s when I came across this quote from a recent interview given by Ms.Cowperthwaite:

[T]he film is not at all advocating for anything. That’s what some people have a hard time with. [They ask], “Where’s the 1-800 number at the end of the film?” You know, where you need to prescribe something we can do. I deliberately chose not to do that. What I did choose to do was to tell the story, and that’s all I was really equipped to do. … So I really truly believe that I err on the side of the journalistic approach, not the advocacy approach. I think that for me, I had to come to my conclusions by really reviewing the facts.  I kept everybody at bay because [I] didn’t want to be influence[d] by any kind of agenda and I just kind of stuck with the story.

(More after the jump)

I actually had to read this twice.  Blackfish is not an advocacy piece?  Really?  As an attorney that argues for a living, I truly appreciate the art of great advocacy.  And I know that the most compelling advocacy comes from “true believers” – those who have bought in so deeply to their position that they are not only trying to persuade their audience to come to a certain conclusion, but that they firmly believe this conclusion is the only one backed up by “the truth” or “the facts.”  Of course, the danger in this brand of advocacy is in losing sight of the very fact that you are advocating a position because you have convinced yourself that you are merely illuminating the truth.  

Loss of objectivity, even while zealously advocating our client’s position, is an occupational hazard for lawyers that we must be vigilant to avoid lest we fail to truly protect our client’s best interests.  Whether Ms. Cowperthwaite has fallen into this trap, or is simply lying, I don’t know.  What I do know is that in presenting Blackfish as an objective, journalistic view of the issue of orca captivity, Ms. Cowperthwaite has misled, either intentionally or negligently, her audience into believing that there is no “other side” to the story.  Her film manipulates its audience brilliantly and seamlessly, not only convincing its audience that the film presents facts, but convincing them that the film presents the only facts.  

And that is why I am choosing to write about Blackfish.  I seriously considered writing nothing on this at all.  After all, this is a highly sensitive topic and, frankly, I can’t dispute the science of whales that is quoted (except in a very limited way)I just don’t have the scientific background to challenge the film on these grounds persuasively in this context.  But I think there is something maybe more important than arguing that Blackfish was factually wrong – and that is pointing out that Blackfish is, at bottom, a very slick piece of argument.  I think it’s important to educate those who would take Blackfish at face value, as many of my friends and colleagues have done, and to show how the film manipulates its audience under the guise of journalistic objectivity.  And while I may not have the expertise to dispute the science in the film, I am better equipped than most to pull back the curtain on the tricks Blackfish uses to conceal one critical fact:  the very existence of another side to its story.  

There’s a lot to cover here.  Consequently, I’ve made the somewhat unusual decision to proceed in multiple parts.  Over the next few days, I’ll be posting three new pieces.  The first will look at the people involved in Blackfish and the demonstrated agenda that they brought to the project.  The second will look at the subtle and effective film-making tricks Ms. Cowperthwaite used to manipulate the facts, or lack thereof, being presented in Blackfish.  Finally, the third will focus on the arguments and statements made in Blackfish – some of which are demonstrably false and many of which are internally inconsistent.  And, for the record, the views I am presenting in these pieces are my own.  I do not speak for SeaWorld or anyone else in the amusement industry. 

Yes.  This is a lot of attention to throw at one movie.  But, given the widespread immediate acceptance of Blackfish as “the truth,” I think it is important to spend the time to do this right.  I’m not hoping to convince you that SeaWorld's position is more correct than that presented in Blackfish.  As I said, I don't have the science at hand to do that - I leave that to SeaWorld to handle.  I’m only hoping to remind its audience, and the audiences of similar films, that there are two sides to even the most compelling of presentations.  There’s nothing wrong with picking a side after considering the evidence.  But there is something wrong with picking a side without even knowing that evidence might exist.  More to come.


Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

27 comments:

  1. Please esquire, give us a verified accurate accounting of any and all financial interactions you have ever had with any enterprise owned by $SEAS and/or $BZ.

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    1. Perhaps the film makers could disclose their financing as well.

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  2. And also, please discuss the fact Seaworld refused over and over to participate in the film so while there are always two sides to every story, if the behemoth Seaworld money machine CHOSE not to tell its side, one has to wonder why. The conclusion is that it really has no way to defend housing such graceful animals in bath tubs for circus like behavior. Am I an activist/advocate? I am now and Blackfish causes others to wake up to this industry, so be it.

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    1. I'm sorry, but would YOU want to participate in a movie that is entirely against what you do, and/or what you believe in? I personally find this very easy to answer: absolutely not. Being such a large company with so much to lose, SeaWorld did the understandable thing with not participating in the movie to "share their points"; frankly, I feel even if SeaWorld shared their part in the movie, their words would have been: fought against, mixed up (ex: they say one thing, you say another), or simply, their words wouldn't have even MADE it to the movie. There are reports of people who Gabriela interviewed, that were for the captivity of animals, and their interviews didn't even make it to the film; they were simply shut down, only because their opinions sided with SeaWorld. I don't know about you, or anyone else, but personally, I find that appalling, that so many people who watch Blackfish and immediately point the finger at SeaWorld for "not participating" or "sharing their side of the story" when their 'side of the story' would most likely have been thrown to the curb, just as the interviews were.
      Blackfish is an EXTREMELY one-sided film, and anyone who watches this movie can guess that; this article does a great job of brushing over it, as well. I don't understand how one could just simply watch Blackfish, and instantaneously become an expert of SeaWorld, or the captive marine mammal as a whole, when in reality, none of us are.

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    2. Just watch how Richard Dawkins was treated in Ben Stein's anti-evolution movie. That should explain exactly why SeaWorld chose not to tell its side.

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    3. Mark Simmons was interviewed in the movie as a past SW employee and he did not have the same view as others. Interesting thing to note: some former employees (including Mark Simmons) were interviewed for hours, however since their opinion was not in line with the movie, you don't see their opinion presented. Not really surprising for a film with a specific agenda.

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    4. SeaWorld declined to be involved in the making of the film for one very obvious reason. Blackfish was a blatant exploitation of Dawn Brancheau's death for profit. SeaWorld has been very open about this when asked why they didn't participate. It would have been grossly disrespectful to the friends, family and colleagues of Brancheau who have already suffered a terrible loss.

      Blackfish is designed to make you feel, not make you think. It comes equipped with scary music and scene-to-scene flashes that make you feel as though this big corporate monster is keeping these enormous animals in bathtubs. Last I checked, seven inter-connected pools with over seven million gallons of perfected seawater is not a bathtub.

      The deception begins at the movie cover and posters. The film is about Tilikum. The whale used for the cover and posters is actually Keiko, shaded in Photoshop to hide his signature markings.

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  3. There's three sides...your truth..their truth and The truth...so much is about perception and that is the grey area you as a lawyer will work.

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  4. First off, SeaWorld has been contacted numerous times so they can give their opinion or their side of the story and as of now, have yet to come out and say anything. Not to David Kirby for his book, not for the movie, and not on CNN.

    While yes, there are people in this world who have a bias, and might lie...you're in essence saying that it's NEVER possible to partake in something and then later realize, it may be wrong? Are you saying, one cannot change their minds? There are many scientists around the world who have worked with whales and dolphins and have come to the conclusion...prior to the release of the movie Blackfish, prior to any national and international media attention, prior to Dawn Brancheau's death, that these animals do not belong in the confines of captivity. This is not a story or idea that just decided to pop up from nowhere. This war, this movement to end captivity has been battled out for years. It's just now getting the media attention it so deserves.

    At the end of the day one can alter testimony, one can be bias, but you can't change things that have for certain happened. Every attack on trainers and whales that has been documented, video taped, seen by public audiences is therefore a lie? I think not. One cannot argue against their living conditions...take Lolita for instance who is not mentioned. Lolita the Killer Whale is housed in the Miami Seaquarium. She measures between 20-22 ft. in length and take a good look at her "home". There is nothing to protect her from the lovely Miami sun and/or any hurricanes that can present themselves. So if an ex-trainer would start speaking out against the Miami Seaquarium, they're bias and should not be listened to?

    At the end of the day you may see them as disgruntled ex-employees, I personally would call them experts being that they were at one time or another involved with these animals. That some grew a conscious and decided these animals needed better, so be it.

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    1. "First off, SeaWorld has been contacted numerous times so they can give their opinion or their side of the story and as of now, have yet to come out and say anything. Not to David Kirby for his book, not for the movie, and not on CNN."

      Unfortunately I think you're a little confused or just haven't actually gone out and sought out all the facts for yourself. SeaWorld did indeed respond quite well the film. It released 8 assertions in response to the film that can be read here - http://www.indiewire.com/article/seaworld-unleashes-8-assertions-about-blackfish-and-filmmakers-respond. Also, SeaWorld's Vice President of Communications Fred Jacobs answered questions on CNN.com - http://www.cnn.com/2013/10/21/us/seaworld-blackfish-qa/.

      If you check all the facts for yourself, you will see that Mr. Beard's assessment of the film is quite astute and that there are indeed two sides to the story...just like in any situation.

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    2. Quick! Protect the whales from hurricanes!!! ...smh

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    3. Seaworld has spoken:

      http://seaworld.com/ourcare/Letter?utm_source=Facebook&utm_medium=Social&utm_campaign=SWF12SRC&m=1

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    4. This open letter from the CEO in and of itself is fraught with whitewashing, PR BS, and outright lies.

      Just ONE example: "SeaWorld’s killer whales’ life spans are equivalent with those in the wild. While studies continue to define the average life span of killer whales in the wild, the most recent science suggests that our killer whales’ life spans are comparable — indeed, five of our animals are older than 30, and one of our whales is close to 50."

      Baloney...

      So they're PROUD to have kept most whales alive past 30?

      Think this through - the life span of an orca in the wild is commensurate to a human beings. Orcas in their naturla habitat live to 50 - 80 years, and this is documented fact.

      The CEO rhetoric is hiding behind "weasel words" such as "studies continue to define". In ohter words, he is trying to say we really do not know how long the whales live in the wild. EACH whale in the Southern Resident community is identified along wth their age and matrineal line. The biologists know very well how long the whales live in the wild, and it is not equiivalent to the life span of whales in captivity. At least, it is NOT equivalent to 30-50 years.

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    5. Wild orcas have been documented to be 60, 70, 80 years old. True. How many wild orcas died in between census? These animals are in the data deficient category for a reason. They are difficult to keep up with and accurately count. The whales at the SeaWorld parks are always there and can be monitored and studied. Just because we've been able to track a matriarc in L-Pod off the west coast up to the age of 80 does not been ALL whales live to be that age.
      Furthermore, these Blackfish couch activists often talk about the condition of the teeth of captive orcas. Please site your findings for the last voluntary dental exam on a wild killer whale. I'm interested to see what shape their teeth are in for comparison.

      The reasons for complaints are reaching, truly. Only focused on body conditions of a whale we can see and touch every day without comparison to the vast amount of wild orcas and their body conditions. National Geographic and Discovery have done specials on orcas and it is undeniably clear in the footage they captured that wild orcas are COVERED in rakes, dings, scratches, scuffs, scars and cuts. The body condition of a captive orca is drastically better than that of the ones in the wild, making the "pod bullying only in captivity" argument completely invalid. The "They can't run away" argument may also be put to rest as for anyone who knows anything about killer whales, they are incredibly complex when it comes to their social habits. They NEVER "run away" or leave the pod even when being raked by the alpha female. The only time an orca seperates from its pod is to mate, and it's almost exclusively to males. They then return to their pod whether their mother is alive or not.

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  5. Thanks for your comments. First, I can tell you that I have no financial association with SeaWorld or Blackstone Group at all. I, of course, know people who work and have worked at SeaWorld, but I've never worked there and I don't represent SeaWorld in any capacity. Given that I practice in New England, I think there is an extremely low chance that I would ever be retained by SeaWorld to do anything. Second, I can't and won't speculate on why SeaWorld didn't participate - as I said, I don't speak for SeaWorld. Third, you haven't read anywhere in anything I've written that I believe that captivity is either good or bad. You haven't heard me argue for or against their living conditions. You haven't heard me defend SeaWorld. That's because all of this is irrelevant to this series. My point in writing simply is that a lot of people I know personally, even some in the amusement industry itself, have been caught up in Blackfish and have accepted it as undeniable truth without considering what might have been left unsaid. As individuals watch Blackfish and seek out more information on the topic, I simply think that should be reminded that, despite what the director says, this is not an objective news documentary but is an advocacy piece against SeaWorld specfically and captivity in general. The reason its important is, I believe, so that the audience doesn't blindly accept the film as presenting all the facts rather than all the facts that support the position taken. Fourth, and lastly, I absolutely believe that people can "partake in something and then later realize, it may be wrong." I believe that is what the people interviewed in the film believe happened to them. That doesn't however make the film any less of an advocacy piece. Regardless of when principles and beliefs are formed, the individual holding them still brings biases and agenda to the table thereafter. These pieces merely point out those biases and other issues in the film so that the audience can reach an educated decision on whether to believe anyone or to do their own homework to reach their own conclusions.

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  6. SeaWorld HAS responded- several times in fact- in regards to the "documentary" Blackfish. If you are going to comment on this, very obviously, unbiased blog piece please do your research.

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  7. When I watched the film on CNN, it just didn't "feel right" to me in terms of the position that was obviously presented...that these orcas did not belong in captivity. This feeling may have been the result of previous knowledge about some of the videos that have been put forward about wildlife over the years. And, I have observed that there is a "movement" abroad in the land to make it illegal to own or keep big cats, primates, and some reptiles. This kind of movement is not something that has come from the public, but from certain organizations who have a clearly stated agenda against keeping any animals in captivity for any reason. Personally, I cannot accept that belief system....because that is what it is...a belief. Reputable scientists like Jared Diamond have made the point that civilization was made possible because humans worked with animals. Considering the positive results of keeping orcas in captivity, whether at SeaWorld or some other location, I think we need to focus on the facts and the science, not to ex-trainers or animal advocates. The use of film and videos by the anti-animal orgs to promote their agenda has been an ongoing activity for decades. I really appreciate the thinking and writing by Attorney Beard on this film. Thank you!!!

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  8. SeaWorld HAS responded http://seaworld.com/en/ourcare/Letter?from=Top_Nav

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  9. I strongly disagree with the gist of this article, which argues that the movie Blackfish is pretending to be un-baised when actually it is unfair 'advocacy' filmmaking. At every one of its shows, press conferences, and promotional productions, SeaWorld has been 'advocating' keeping orcas in captivity for decades. The director of Blackfish was a mother who used to take her kids to SeaWorld shows, but when digging into the death of one of the trainers, she revealed to the public another side of the story never once out forth in SeaWorld's expensive publicity blitzes. Just putting this out there does not make her an 'advocate', or her movie biased. Does she form her own opinion as the movie progresses? Yes, but that is her right. No one is obligated to follow her. And SeaWorld DID have a chance to appear in the movie to defend its practices. - Thurston Cleveland Hicks

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  10. One more thought: I am sure that you have been watching the many recent hard-hitting exposes of the slaughter of African elephants for their ivory. Almost all of the reports I have seen have taken a strong moral position on the horror of what is happening to elephants. And only rarely do they present equal time to ivory carvers and the heads of ivory smuggling syndicates defending their industry (who of course would have their own take on it, and in the case of traditional Japanese ivory carvers that would be an interesting one). But is this really a problem? As long as these reporters are factually accurate in their reporting, do we really expect them to present 'all sides' of every issue? - Thurston Cleveland Hicks

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    1. I don't believe anyone thought that she would present both sides. That's not what this article is about. It's simply a reminder to find out specifics regarding both sides before typing something that you can neither verify nor expound on in favor of one side without the due diligence of (god forbid) looking into the matter yourself and ascertaining your own impression from ALL the facts. To expect both sides of any story in a propaganda piece is not only lazy, it's reckless and shows quite a lack of true conviction regarding your position on the matter.

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  11. Why complicate the issue with she said, he said, who said what. And let’s put the fact of trainers having been injured and killed, aside for a moment.

    Just think about the orcas and ask YOURSELF -- should an animal intended to live in the ocean, continue to be bred in captivity and used to perform tricks for our amusement?

    That is the simple fact activist and compassionate animal lovers are taking issue with -- it's a moral question.

    You don't need to be influenced by the footage in BLACKFISH or SeaWorld's bullet point list, step back from all of that and think about the orcas for a moment -- this discussion should be about them.

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  12. Not biased towards SeaWorld? You are in fact the one who alerted #Blackfish fans about the Florida Attractions Assiciation cry for help with this tweet, so thank you.
    https://twitter.com/erikhbeard/status/412689518282539008

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    1. This comment has been removed by the author.

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    2. Yes. Weeks after publishing the first three pieces in this series, and after having written most of the last one, I tweeted out a message from the FAA (it's also posted on my FB page) about SeaWorld being unfairly treated as a result of the allegations raised against it in Blackfish. I don't think it is a secret that I agree that the public reaction to Blackfish is unfair because many of the allegations raised in the film come from questionable sources, have no independent, verifiable proof, and don't stand up to scrutiny. That is, after all, the entire point of this series. So, I'm not sure what your point is exactly, but I do appreciate that you read my tweets. Have a very Merry Christmas.

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  13. Thank you for writing this blog..

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