The SeaWorld / OSHA Ruling: How It Happened & What It Means (UPDATED 4/14/14)

SeaWorld’s killer whale trainers are out of the water, at least for performance purposes, seemingly for good.  So says the Court of Appeals for the D.C. Circuit in SeaWorld of Florida, LLC (see update below) v. Perez – the SeaWorld OSHA appeal that I have written about previously and that featured prominently in Blackfish.  As you may recall, following the death of trainer Dawn Brancheau at SeaWorld Orlando, the Occupational Health & Safety Administration (“OSHA”) investigated and issued citations requiring, as relevant to this case, that SeaWorld immediately stop allowing its trainers into the water with orcas during performances.  Pursuant to OSHA’s ruling, SeaWorld’s trainers could only interact with the whales during performances if separated by a physical barrier that would, in effect, prevent a whale from dragging a trainer into the pool as had occurred with Ms. Brancheau.

(more after the jump)

3 Things We Learned From Yesterday's Hearing On AB2140, The So-Called "Blackfish Bill"

Yesterday, April 8, 2014, the California State Assembly's Committee on Water, Parks, and Wildlilfe held its public hearing on AB2140, also known as the "Blackfish Bill."  The proposed bill would, prohibit the possession or use of killer whales for entertainment purposes in the State of California, would generally prohibit breeding of killer whales in California, and would require owners of killer whales to return them to the wild "where possible" - more on that in a minute - and where not possible to move them to sea pens.  Yesterday's hearing, which lasted about ninety minutes, featured prepared testimony from the bill's sponsor, Assembly Member Richard Bloom, three witnesses in support of the bill, and five witnesses in opposition to the bill.

As a purely practical matter, the end result of the hearing was not a clear victory for either the bill's supporters or its detractors.  The Committee decided to refer the bill for "interim study," which requires preparation of a comprehensive report on the proposed bill.  Once that study is complete, which is expected to take more than a year, another hearing will be convened to consider the bill again.  Thus, the bill is not dead, but it was not passed out of committee either. 

Aside from the bottom line result to defer a vote, the hearing offered some valuable insight into both side's positions, the legal merit of the bill, and the considerations that are likely to resonate with the Committee members when the next hearing occurs.  Although I could spend hours writing about any number of issues that were raised, I've decided to narrow it down to the three that resonated most with me from a legal perspective.   

Blackfish / White Lies? (An Epilogue): Responding To Your Comments

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

 

I lied.  I said my last post was my last foray into Blackfish.  But, I have been inundated with so many emails and comments that I thought I should write one last piece to address some of these points raised either publicly or privately.  First, let me say how grateful I am for most of the comments, even those that clearly think that I have missed the point of Blackfish (and, not surprisingly, there are quite a few of you out there).  The point of this blog is to generate discussion and debate and to provide information and opinion about the amusement industry to those that are interested, and those goals seem to have been achieved in this series.  But, having read hundreds of emails, comments, tweets, and Facebook posts about these pieces, I have seen some common themes emerging that deserve to be addressed - I just don't have time to address them individually.  So I thought it made more sense to post one last piece.  I wouldn't, after all, want anyone to think I was ignoring them.

Blackfish / White Lies? (Pt. 3): Undisclosed Facts & Muddled Messages

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

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

So here we are (a little later than originally planned), the final piece of this series, and my last foray into Blackfish until, perhaps, the DC Circuit Court of Appeals rules on SeaWorld's OSHA appeal sometime in the coming months.  In the time since the first two pieces of this series hit the blogosphere, Blackfish has moved from near-nightly airings on CNN to on-demand availability on Netflix.  Additionally, the film has stayed in the headlines due, in no small part, to the recent media attention surrounding the decision of several musical acts to cancel their appearances at SeaWorld in an apparent act of protest.  It is clear that the “Blackfish effect” is powerful both in its message and its longevity.  But what is its message exactly?  And do the facts presented in Blackfish support that message in a fashion that lives up to the claim of its director, Gabriala Cowperthwaite, that the film is nothing more than a “truthful, fact driven narrative” that errs “on the side of the journalistic approach”and is, in fact, “not at all advocating for anything.”  My belief is that Blackfish itself plainly belies any contention that the film is anything other than a piece of animal-rights advocacy – one sided in both fact and presentation.   

In the first two pieces in this series I looked at the people involved in Blackfish, many of whom have undisclosed (and sometimes radical) animal-rights agendas, and the filmmaking techniques used to steer the viewer toward one, and only one, position.   To finish, I thought we should take a closer look at Blackfish’s substance - the claims it makes and its overall message. 

Remember, Blackfish is being passed off by its director as erring “on the side of the journalistic approach.”  That means that its statements should comply with journalistic standards:  they should be fact checked, unambiguous, and not misleading.  Why is that important?  Because if the film conveys a false factual impression or is inaccurate or untruthful as to even a single point, it can (and does) degrade the credibility of the film as a whole.  To continue the analogy from Part 1 of this series, this film is, in essence, the star witness in the Court of Public Opinion's trial of SeaWorld.  The audience must, therefore, assess its credibility as to the facts presented, just as it would any other witness.  A falsehood, even a little white lie, calls into question the rest of what the film says.  If the film lies about little things, the audience - the jury in the Court of Public Opinion - has a right to wonder whether the film is lying about bigger things too.  

Blackfish / White Lies? (Pt. 2): The Art Of Advocacy Film-Making

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

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

“I had to decide that my structure was going to be to tell the truthful, fact-driven narrative from beginning to end, following Tilikum’s trajectory through the eyes of the former trainers, that I can just tell the truth and lay out the facts.  Someone said that if you try too hard to do “on the one hand, but then on the other hand,” you may become faithless to the truth.  And so, if I just promise myself that I would not sensationalize, not shoehorn information in there that will manipulate people into feeling things and stick to the fact-driven story, then that is a story that people need to hear.“

Gabriela Cowperthwaite, describing Blackfish (available at http://collider.com/gabriela-cowperthwaite-jeffrey-ventre-blackfish-interview/).  

Is this accurate?  Is Blackfish really just an un-sensationalized piece of documentary film-making that doesn’t try to “manipulate people into feeling things?”  Does Blackfish simply “stick to a fact-driven story?”  That’s the question and the point of this series.  Ms. Cowperthwaite has given interviews to at least two media outlets claiming that Blackfish is just a straightforward presentation of “fact driven narrative,” without advocacy.  I do not see how that can be a credible claim given the inherent bias of the people involved (the discussion of my last entry), the structure and film-making tricks used seemingly for the sole purpose of “manipulate[ing] people” into considering only one side (the subject of this piece), and the inconsistent and sometimes demonstrably incorrect statements presented in the film (the subject of the next, and last, piece).  

Blackfish / White Lies? (Pt. 1): Sorry, I Forgot To Mention, They're All Activists

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

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

“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.”

United States v. Abel, 469 U.S. 45, 52 (1984). 

Former Chief Justice of the United States Supreme Court William Rhenquist wrote these words nearly 30 years ago.  They are as true in the Court of Public Opinion as they are in a court of law.  Blackfish has a lot of “testimony” that is presented without any hint of potential bias – quite the opposite actually.  Director Gabriela Cowperthwaite strongly suggests the outright credibility of most of the people who appear in the film.  After all, who better to speak about what is going on with SeaWorld’s whales than a bunch of ex-trainers who spent years working with them?  Who better to explain the science behind orca behavior and biology than experts in the field and a neuroscientist who has studied the brain of a killer whale up close?  Since Blackfish provides no background on any of these individuals, other than what is necessary to establish their credibility, the “jury” in the Court of Public Opinion is left with nothing to assess the true credibility of their “testimony.”  In a court of law, questions of bias are raised through cross examination.  Similarly, in true journalistic pieces, the journalist “cross examines” his or her source by, for example, playing the “devil’s advocate” and challenging them to explain, debunk, or address potential sources of bias.  Cross examination and journalistic honesty are vital tools that allow the audience to decide for themselves whether what is being said is “the truth, the whole truth, and nothing but the truth.”  But in Blackfish, there is no “cross examination” of the "witnesses" the "jury" is expected to believe.  Consequently, it is easy to view Blackfish as telling its story though an objective lens.  But that’s just not the case.

Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

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)

The SeaWorld OSHA Decision And The Dangers Of Captive Animals: A Reasoned Response To Media Distortion

Last week, Administrative Law Judge Ken S. Welch in Orlando issued the long awaited opinion in Secretary of Labor v. SeaWorld of Florida, LLC, more commonly known as the Dawn Brancheau case.  As most of you probably know, on February 24, 2010, Dawn Brancheau, a seasoned and respected trainer at SeaWorld, was killed by a killer whale that dragged her into the water, fatally injuring her.  Following Ms. Brancheau’s tragic death, OSHA investigated and assessed a $75,000 fine and issued two citations.  OSHA also ordered that SeaWorld abate the hazard by not allowing trainers to have contact with killer whales during shows unless they are protected by a physical barrier or a minimum safe distance of dry land.  SeaWorld appealed the violations to the OSHA Review Commission, which largely, but not totally, affirmed the OSHA investigator’s findings. 

Now I’m not going to try to pick apart Judge Welch’s decision – I don’t know the evidence, I wasn’t there for the testimony, and I don’t have significant experience with OSHA regulations and law.  The decision is quite long and very detailed and, absent greater familiarity with the underlying facts and arguments, I would not purport to challenge Judge Welch’s factual and legal determinations intelligently.  However, what does warrant comment is the treatment the decision has received in the days following its issuance and, in particular, a recent piece I read in the Huffington Post authored by David Kirby entitled “Labor Department Fires Warning Shot At Animal Entertainment Industry.”  Mr. Kirby’s piece omits key facts of the case, wrongly implies that Judge Welch found SeaWorld to be irresponsible and unconcerned with employee safety, and relies on inaccurate and misleading “statistics” and information sources to unfairly depict the frequency and severity of incidents involving animals held in captivity.

PETA’s Frivolous Suit Against SeaWorld Alleging Orca Slavery: It Doesn’t Get Much More Black and White Than This (UPDATED 2/9/12)

On Monday, a federal magistrate judge heard argument on whether to dismiss a relatively recent lawsuit brought against SeaWorld by People for the Ethical Treatment of Animals (“PETA”) that raises an unprecedented and patently frivolous claim – even for an organization known for taking some pretty unreasonable positions.  The lawsuit is captioned Tilikum v. SeaWorld Parks & Entertainment, Inc. and it is pending in the U.S. District Court for the Southern District of California before Magistrate Judge William McCurine, Jr..  Now, I suspect many of you who read my blog (and thus, presumably have an interest in the amusement industry) will immediately recognize the named plaintiff despite the fact that he is not, in fact, a human being.  Tilikum is an orca – the very orca that killed SeaWorld trainer Dawn Brancheau last year after a performance at SeaWorld in Orlando.  Tilikum and four other orcas, speaking (not surprisingly) through actual human beings (a procedure that I won’t get into in this article), “claim” that they are being held against their will and subjected to slavery and involuntary servitude in violation of the 13^th Amendment to the United States.  The basis of such a claim?  The 13^th Amendment never specifically says that it only applies to “people” so, naturally, it must also apply to orcas.  The breadth of the Plaintiffs’ argument is as utterly astounding as it is facially foolhardy and frivolous.  This is the very definition of a lawsuit brought for no other purpose than to bring publicity to the plaintiff and to harass SeaWorld.   

Contrary To Media Reports, Video Of Dawn Brancheau's Death Is Not About To Go Public (UPDATED 9/20/11)

Yesterday (9/15/11), Judge Gregory Presnell of the United States District Court for the Middle District of Florida in Orlando denied a preliminary injunction sought by the family of the deceased SeaWorld trainer, Dawn Bancheau, to prevent video showing the events of Ms. Brancheau's death from being shown publicly at an OSHA hearing looking into potential OSHA violations by SeaWorld scheduled for September 19.  Having spent some time today looking at the media reports and the ruling itself, I am disturbed (although not overly surprised) at the extent to which the media has missed the point of Judge Presnell's ruling and has characterized at something it is not.

An Associated Press report, picked up by many news outlets around the country, leads with this sentence:

"A federal judge says there is no legal reason images of a SeaWorld trainer's death should be kept from the public."

To many (maybe most) readers, this suggests that Judge Presnell ruled that the video depicting Ms. Brancheau's death should be public or that he believes that the public interest would be best served if the video were to be released.  But that's not what he said in the ruling, and, in fact, there's every reason to believe that despite Judge Presnell's ruling, the graphic video of Ms. Brancheau's death will never be made publicly available at all.