Animal Exploitation in Entertainment

In many aspects of daily American life, animals are seen as property. Many people own pets, eat animal meat and animal products daily, and plenty of people in America use animals as a source of entertainment and companionship. Animals are deemed property under US law, which allows all of this to take place, and with it, exploitation. Where the use of animals exists, exploitation exists. The mere invention of property law, and animals as property, has allowed generations of humans to take advantage of animals for various human uses. One of these types of animal exploitation exists in the entertainment industry, with marine animals such as orcas and dolphins. Of the many aquariums that exist in the United States, the SeaWorld franchise, is the most well known, for a multitude of reasons. SeaWorld is a theme park chain which houses animals such as orcas, dolphins, walruses, beluga whales, and more in its three locations. Animal rights activists, as well as federal regulations, attempt to scale back animal exploitation and limit animal use, and in many regards have been successful. However, the struggle to enforce regulations due to a lack of resources may mean the country needs a reshaping of the entire system; perhaps to one that reaches beyond the current viewpoint that animals are property, to a consideration that animals are autonomous beings with value in and of themselves.

In order to discuss the ownership of animals for any purpose, let alone recreation, we must dive into property law. In law, the definition of property is “anything that is owned by a person or entity” (Legal Dictionary). The identification of animals as property is an idea stemming from the feudal system in Europe before the colonization of the Americas. In the feudal system, citizens didn’t ever truly own any land. The King owned all land and distributed it as he saw fit. What the citizens did own, however, was the animals on their farmland. Animals which they owned contributed to their wealth in ways land did not, and they were valuable in that way. In fact, cows were seen as a sort of currency, because of their “transportability, value, and fungibility” (Tannenbaum 545). In the eyes of the law, someone whose animals were stolen had the right to compensation in the form of monetary value, because the animal was attributed to that person’s wealth. As the American colonies were formed, ingrained in US law became the feudal system of animals as property. Currently, our law resides on the idea that animals have value on the open market. Inciting animals as property under the law rather than autonomous beings sets them up for exploitation under our capitalist system. This is not to say the law doesn’t recognize the value of animals, but it recognizes the value only in how they pertain to human use (whether that be through agriculture, recreation, or companionship). The formation of highly profitable businesses under this system has made expanding protections for animals “politically challenging”, to say the least (Frost). Today, animals are still classified as property under US law, and animal exploitative businesses such as the infamous SeaWorld have been seemingly untouchable as a result.

Marine mammals have been used for entertainment in the United States since the 1860s, when a beluga whale was captured and put on display for public consumption. The whale died a few weeks later due to terrible conditions, but the use of whales for human entertainment endured. Although conditions have significantly improved in recent years, marine mammals such as orcas and dolphins have continued to suffer due to lack of space and social interaction while in captivity. Orcas commonly swim through 6 trillion cubic feet of water every day, a length that is over 9,000 times larger than every single pool at every SeaWorld combined. Similarly, orcas in the wild are known to dive up to 1000 feet in the ocean, and in captivity they are only allowed a fraction of that space to swim. This lack of space has been known to lead to both physical illness, mental stress, and behavioral issues such as aggression. Captive orcas have suffered from ‘dorsal droop’ in which the dorsal fin is no longer strong enough to stand up on its own. This is due to a shift in swim patterns, as many orcas swim in circles instead of long distances in captivity. According to the Whale and Dolphin Conservation, “Dorsal fin collapse has been observed in 1% of wild orcas. 100% of captive adult male orcas have collapsed dorsal fins” (End Captivity). Similarly, dolphins and orca alike have been seen to suffer from jaw popping, a physical problem which results from gnawing on metal gates. The action “can lead to chronic pain which may result in the whale grinding down the jaw itself” (Tierney). Due to the size and shape of the tanks, sound is distorted underwater. Both dolphins and orcas communicate with sonar sounds, and the warped acoustics make it almost impossible for communication to occur. This sound distortion has also been seen to cause stress and, in extreme cases, hearing loss. In addition, marine mammals are more likely to experience respiratory illnesses and disease which are uncommon in the wild- another factor which can lead to premature death. In addition to physical pain, marine mammals experience behavioral issues in captivity caused by boredom, extreme stress, and isolation. Orcas and dolphins are social animals and in the wild share close relationships with large groups of family, and each family of orcas has a different ‘language.’ In captivity, orcas are in captivity with different families who have different languages, and it has been seen with an orca named Lolita that orcas still use their family pod’s language, even after many decades. In addition to the communication issues, putting different families of orcas and dolphins in the same tank leads to higher levels of aggression and competition amongst one another. SeaWorld practices such as using food to master tricks contributes to a higher rate of competition among the animals, which leads to even more violence. The federal government has attempted to regulate aquatic recreation with statutes such as the Animal Welfare Act and the Marine Mammal Protection Act.

The Animal Welfare Act was first introduced in 1966, and later amended in 1970 to include the regulation of “warm-blooded animals generally used for research, testing, experimentation or exhibition, or as pets” (The Animal Welfare Act). The Animal Welfare Act, usually referred to as AWA, provides somewhat of a protection for animals in captivity with the establishment of a set of standard “required when handling, housing, or transporting orca whales and other marine animals” (Laws Concerning Orcas). The AWA has set standards for the size of pools containing orca whales, stating that “enclosures must be constructed and maintained so that the animals contained within are provided sufficient space, both horizontally and vertically, to be able to make normal postural and social adjustments with adequate freedom of movement, in or out of the water" (Tierney). Adequate freedom of movement, according to the AWA, includes a minimum length of at least twice the length of the orca, as well as a minimum depth of at least half the length of the orca. Many animal specialists have pointed out that this standard is much too lenient, as, even with this requirement met, animals still have access to less than 1% of their natural environment (Tierney). Random inspections are carried out by the government agency entitled the Animal and Plant Health Inspection Service (APHIS). APHIS Agents follow AWA guidelines to assess compliance with the law, and if they find a facility doesn’t meet standards, A Letter of Information (an informal warning letter documenting the violation) is issued. The letter acts as a warning, and the facility has a limited amount of time to comply with standards before action may be taken in civil or criminal court (The Animal Welfare Act). A “formal investigation” by the IES, or Investigative and Enforcement Services, is conducted in some cases. The IES inspector creates a formal report which gets reviewed by IES enforcement staff. APHIS is seen as a relatively ineffective agency, with “ a reputation for being more 'industry friendly'” (Tierney). In addition, the low number inspectors available in the country leaves room for facilities to go unchecked. (Tierney).

Another federal law which is important to the case of aquatic animals is The Marine Mammal Protection Act. This act was introduced in 1972 when evidence was presented to Congress about the effect of human use of aquatic animals on ocean ecosystems which led them to believe dolphins and other marine mammals were in danger of extinction. The MMA states that “swim-with-dolphin” programs in US waters were affecting the dolphins’ natural behaviors and “made wild dolphins hopelessly dependent on contact with humans” (Tierney).The most effective part of the policy was the banning of taking marine mammals from the ocean, as well as a ban preventing the selling of marine mammal products in the country. The act included an allowance of permits for companies to remove marine mammals from the ocean for research, public recreation, or conservation. The United States hasn’t captured an orca from the ocean since 1989, possibly due to the long process of permitting. The MMPA, whether intentionally or not, increased breeding practices in the US by decreasing orca capture.

Similar to federal laws, ‘self-regulation’ of marine animal facilities by way of alliance groups is present. Two main self regulation groups, to which the SeaWorld parks belong, are entitled the Association of Zoos and Aquariums and The Alliance of Marine Mammal Parks and Aquariums. Within these groups are a set of standards which group members have to meet in order to remain a part of them. Like the AWA inspections, these self regulating groups hold random inspections to hold their members accountable. Again, like AWA inspections, there are not quite enough inspectors to reach every facility without the potential to miss something. Self-regulation groups like AZA and AMMPA have recently taken a hit for alleged violations against the SeaWorld franchise which have gone unnoticed under their watch.

Recently, SeaWorld has been under fire for their alleged lack of care to orcas in captivity, which came to light due to Blackfish, a documentary released in 2013. This film followed killer whale Tilikum who attacked and killed a trainer in 2010. Allegedly, the orca was pushed to violent means due to harsh conditions which cause stress, depression, and aggression in SeaWorld’s captive animals. Public response to the film pushed SeaWorld to announce their pledge to stop the breeding of orcas and phase out its current orca shows. A statement from the Alliance for Marine Mammal Parks and Aquariums (AMMPA), to which SeaWorld is a member, states that Blackfish is a “deceitful film” packed with “misinformation and lies” about their parks, and further state that they “take exceptional care of all [their] animals, including [the] orcas, resulting in [their] animals thriving and living as long as or longer than those in the wild” (Stratton). Ironically, since the release of their statement, two of SeaWorld’s orcas, Tilikum and Kasatka, have died in captivity at the ages of 36 and 41, 15-20 years younger than the average wild whale death. AMMPA, an organization meant to hold its members accountable, seems to be in it for their own self-preservation. It is clear that self-regulation and federal statutes may not be doing their job when it comes to enforcement, and the system needs some rethinking.

As seen with the public backlash of the 2013 documentary “Blackfish” and corresponding response by government officials and the SeaWorld franchise, public perception and outrage is creating a huge opportunity for change. In response to the mass amount of backlash by the public, officials started writing up laws on both the federal and state level. In 2014, after the release of the movie, two representatives from California passed an amendment in Congress which required the US Department of Agriculture to “conduct and update science research necessary to meet Animal Welfare Act regulations on captivity of orcas and cetaceans, or marine mammals” (Charky). This amendment was a small step in the improvement of these animals' lives, as it allocated $1 million in funds to the Animal and Plant Health Inspection Service to update AWA regulations. Another bill introduced to Congress in 2017, entitled The Orca Responsibility and Care Advancement Act, has plans to phase out captive orcas by amending both the AWA and the MMPA. Under the ORCA Act, forced breeding and permits for capturing orcas would be prohibited. (THE ORCA RESPONSIBILITY AND CARE ADVANCEMENT (ORCA) ACT). As of right now, the bill has not received a vote, but with increased public urgency a vote may be in the future. In 2016, California passed the Orca Protection Act, in which it is officially illegal to breed orcas and use them for entertainment purposes. This Act has made SeaWorld San Diego’s pledge into law, which protects orcas if the company were to at some point change their decision. According to the Animal Legal Defense Fund, “the orcas at SeaWorld San Diego will live out the rest of their lives at the theme park unless SeaWorld decides someday to retire them to a marine sanctuary” (Pallotta). It is likely the orcas will not be retired, because SeaWorld is still legally able to create orca shows used for ‘educational’ purposes, as that does not technically fall under entertainment. However, this California bill is still a win for animal rights groups everywhere, as the passing of the bill brings hope for similar bills in other states, as California almost always leads the country in legislation.

Lawsuits have often been filed on behalf of marine animals with the AWA and MMPA in mind, but because animals are seen as property under the law, it has been made quite difficult to advocate for animals with lawsuits. When animal rights groups file a lawsuit on behalf of an animal, the issue of legal standing makes it almost impossible for the groups’ suit to hold any validity in the court. Legal standing is satisfied when the party has a right to protection against whatever wrongdoing is being done to them. However, because animals can’t speak for themselves, a guardian can be appointed on behalf of that animal’s best interests. Still, because most animal rights groups are advocating for animals who already have owners, and animals are by law the owner’s property rather than their own autonomous being, the plaintiff will have no standing. This was seen in a case entitled Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium, in 1993 (Legal Rights for Animals). The Progressive Animal Welfare Society, on behalf of a dolphin in captivity, sued the aquarium, as well as the departments of the Navy and Commerce, on the grounds that certain provisions of the Marine Mammal Protection Act had been violated. The court held that the animal rights group had no standing to bring the suit, as “the Marine Mammal Protection Act does not authorize suits brought by animals,” and, under the state laws the animal resided in, animals are “exclusively the property of their owners” (Legal Rights for Animals). Animal rights groups are seemingly unable to utilize the statutes meant to protect animals unless they have included a type of personal wrongdoing in their case, in which a human being is directly affected by the animal’s harm. For example, in case ALDF v. Glickman, plaintiff Mark Jurnove, an employee at an animal rights organization, sued the USDA for the “inhumane treatment of animals at the Long Island (NY) Game Farm Park and Zoo” which lessened his ability to enjoy the zoo (Legal Rights for Animals). According to Jurnove, he had attended the zoo many times and was disturbed by the conditions, which infringed on his right to recreation at the park. Because he directly was affected by the animals’ harm, the court ruled he had proper standing in the case, and he had indeed suffered on injury. In this case, a person’s psychological distress means more in court than an animal suffering. However, the court later decided that the animals’ treatment was up to state regulations.

In the capitalist society in which we live, the law is an important feature of business regulation. Powerful legislation is a helpful tool to prevent the exploitative nature of businesses under capitalism, especially when the beings which are exploited have the ability to feel pain and suffering. Current protection laws for animals are not quite powerful enough, due to the lack of ability to enforce the laws at a grand scale. Perhaps modifying the law to view animals as autonomous beings may be another important step to preventing animal exploitation in our capitalist society. However, the reconstruction of animal law may be nearly impossible in our current state, as it would mean other industries such as animal research and the animal agriculture industry would have to be fully rethought as well.

Works Cited

Tierney, Lauren. Full Title Name: Detailed Discussion of Laws Concerning Orcas in Captivity. 1 Jan. 1970, www.animallaw.info/article/detailed-discussion-laws-concerning-orcas-captivity.

“The Animal Welfare Act.” National Anti-Vivisection Society, 29 Aug. 2018, www.navs.org/what-we-do/keep-you-informed/legal-arena/research/explanation-of-the-ani mal-welfare-act-awa/?gclid=Cj0KCQiA48j9BRC-ARIsAMQu3WQzTEPrZolJ6O9RRXJE BZxpyO9hkv03eJrajKvoMQSucfUt17VE10saAmqSEALw_wcB.

Charky, Nicole. Congress Attempts to Change Captivity Rules for Orcas, Marine Life. 12 June 2014, www.latimes.com/socal/burbank-leader/the818now/tn-blr-congress-attempts-to-change-cap tivity-rules-for-orcas-marine-life-20140612-story.html.

End Captivity. 14 Jan. 2020, us.whales.org/our-4-goals/end-captivity/?gclid=Cj0KCQiAhs79BRD0ARIsAC6XpaUez_j dsaEGDNUlZyWNve-vcmqmGqtV1dEM4-gUnRjB5Q-MzNMbQmAaAmkAEALw_wcB

Frost, Natasha. Why Hasn't the U.S. Banned Dolphin and Whale Shows? 14 Oct. 2019, animalrightswatch.us/?p=758508.

“Laws Concerning Captive Orcas.” Animal Law Legal Center, www.animallaw.info/intro/laws-concerning-captive-orcas.

Legal Dictionary - Law.com. dictionary.law.com/default.aspx?selected=1645.

“Legal Rights for Animals.” Petfinder, 16 May 2016, www.petfinder.com/helping-pets/information-on-helping-pets/legal-rights-animals/.

Marino, Lori, et al. Do Zoos and Aquariums Promote Attitude Change in Visitors? A Critical Evaluation of the American Zoo and Aquarium Study. www.wellbeingintlstudiesrepository.org/acwp_zoae/8/.

THE ORCA RESPONSIBILITY AND CARE ADVANCEMENT (ORCA) ACT. schiff.house.gov/imo/media/doc/ORCA%20Act%20Fact%20Sheet%2011.4.pdf.

Pallotta, Nicole. “California Passes Orca Protection Act.” Animal Legal Defense Fund, 18 June 2020, aldf.org/article/california-passes-orca-protection-act/.

Stratton, Bridget. AMMPA Statement on SeaWorld Decision To End Its Killer Whale Program. eaam.org/ammpa-statement-on-seaworld-decision-to-end-its-killer-whale-program/.