Animal activist targeted by lawsuit shows why we need this new law

Over the weekend, footage of a dolphin in what appears to be a dilapidated stadium in Florida took the internet by storm. The footage was obtained by Phil Demer, an animal rights activist and the co-founder of Urgent Seas, a whistleblower organization exposing zoos and aquariums through direct action and advocacy. 

The organization overlaid a recording on the video that featured a “concerned citizen” calling the owner of the property and the dolphin, the Miami Seaquarium, seeking information on the dolphin (whose name is Li’i) and seeking to purchase him for relocation.

https://twitter.com/yashar/status/1705952227410739534

The facility was…less than forthcoming.

As it turns out, this is just the latest in an ongoing feud between the Miami Seaquarium, Phil Demer, Urgent Seas, and the animal rights activist community at large. 

The activists have long taken issue with the facility and the conditions in which it keeps some of its animals. Up until August of this year, they had mostly focused their advocacy on another mammal on the property, Lolita—an 57-year-old orca who had been in captivity for 53 years and who shared a tank with Li’i as a companion. According to officials, Lolita passed away last month from a renal condition.

According to the Associated Press, prior to her death, “Animal rights activists had been fighting for years to have Lolita freed from her tank at the Seaquarium. The park’s relatively new owner, The Dolphin Company, and the nonprofit Friends of Toki announced a plan in March to possibly move her to a natural sea pen in the Pacific Northwest, with the financial backing of Indianapolis Colts owner Jim Irsay.” 

They went on to say that, “Lolita retired from performing last spring as a condition of the park’s new exhibitor’s license with the U.S. Department of Agriculture. She had not been publicly displayed since. In recent months, new upgrades had been installed to better filter the pool and regulate her water temperature. Federal and state regulators would have had to approve any plan to move Lolita, and that could have taken months or years. The 5,000-pound (2,267-kilogram) orca had been living for years in a tank that measures 80 feet by 35 feet (24 meters by 11 meters) and is 20 feet (6 meters) deep.”

It’s worth noting that while her enclosure had undergone some renovations earlier this year, the tank sits inside a stadium that is under a repair or demolish order from Miami-Dade County. Once Lolita passed, Li’i was left in isolation in the tank.

Animal rights activists weren’t the only ones concerned with the Miami Seaquarium either. All the way back in 2017, conditions at the park garnered the attention of some congressional members. At that time, Congresswoman Suzan DelBene and her colleagues expressed concern given the damage observed following Hurricane Irma during the 2017 season. Delbene wrote, "Not only did the storm appear to turn the tank water murky, upon their return to the park, her caretakers found Tokitae’s tank to be full of debris. While she endured then, she may not be so lucky next time."

After tremendous online backlash, the Seaquarium announced Li’i has been moved to SeaWorld San Antonio, where he will live with others of his species. A small victory, though as a long time critic of SeaWorld and its practices, I find it pretty bleak that this is the more positive outcome.

But the saga doesn’t end there though, not hardly. If you can believe it, it gets even worse.

The Miami Seaquarium has also filed a lawsuit against Phil Demer alleging that Demers has “used misinformation and intimidation tactics to interfere with zoos in an attempt to rescue animals from unsafe conditions. The lawsuit claims that Demers has used drones to record unauthorized images, and that he’s knowingly published false information.”

Demer responded to the lawsuit with a GoFundMe campaign where he has already raised over $37,000 of his $40,000 goal to defend himself. On the website he writes, “Hi Everyone, I’ve just been served with a lawsuit by the Miami Seaquarium for allegedly flying a drone and publishing videos of their isolated orca Lolita. I believe this to be a SLAPP lawsuit intent on silencing my activism as I’ve been a vocal critic of the park on my social media platforms @UrgentSeas and @Walrus_Whisperer I look forward to defending myself and will not let them silence me. Your support is greatly appreciated.”

https://twitter.com/walruswhisperer/status/1705927438356615326

It’s interesting that Demer notes he believes this is a SLAAP lawsuit )Strategic Lawsuit Against Public Participation), as this is a frequent tactic corporations take to silence dissent and target and intimidate activists, protestors, and members of the media.

While we don’t have all the information or evidence, given what Demer has posted online, it certainly doesn’t look like he’s been spreading misinformation. And according to Florida laws, he has a pretty good case for using a drone to obtain footage of these animals.

Florida law prohibits the use of a drone to capture an image of privately owned property or the owner, tenant, or occupant of such property without consent if a reasonable expectation of privacy exists. And it would be pretty hard for a park with open air tanks to argue they had a reasonable expectation of privacy.

Furthermore, US law says that the air is generally a public highway and the airspace overhead is part of the public domain. The law notes that in order for a landowner to have full enjoyment of their land they must have exclusive control of the immediate reaches of the enveloping atmosphere and thus a landowner is protected against intrusions in the airspace “immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit their exploitation of it.” So while the right is not exactly fixed, it again seems pretty implausible that a person taking drone footage interferes with the Seaquarium’s ability to enjoy or exploit their property.

Thus the real crux of the lawsuit seems to hinge on Demers’ speech—and in order for that to be a valid lawsuit the facility would have to prove that Demer not only said false things that were damaging to their business, but that he knew them to be false.

And that’s the problem with SLAPP lawsuits, otherwise known as strategic lawsuits against public participation. These lawsuits are meant to silence, intimidate, censor, and bankrupt those they’re filed against by burdening them with the cost of a legal defense until they abandon their criticism. That’s why they’re often filed against activists and members of the media. The point isn’t to win, those filing them know they’ll more than likely get thrown out…eventually.

But before they do, they have the ability to cost the defending party tens to even hundreds of thousands in legal fees, keep them busy dealing with lengthy legal proceedings, and scare them and others away from criticizing the prosecuting party again.

What’s more interesting, is the new owner of the property even seems to admit that the whale had been kept in torturous conditions…

https://twitter.com/eduardoalbor/status/1674716330363060227

And while they very well may have been attempting to right past wrongs, the facts are, the whale did still die in their care and the dolphin did seem to be in grotesque conditions before Phil Demer got involved.

This is why a federal anti-SLAPP law is desperately needed. Currently, 33 states and Washington DC have such statutes, but they vary drastically. Some only apply to certain industries, some only guard issues that involve government actors, and at the end of the day, someone can simply just file this kind of lawsuit in one of the states that haven’t outlawed it—even if neither party resides there. This is what happened a few years ago when John Oliver received his own SLAPP lawsuit after mocking Murray Energy tycoon Bill Murray on his show.

https://www.youtube.com/watch?v=UN8bJb8biZU

The American legal system is overrun with problems and ripe for abuse. SLAPP lawsuits are one of many ways bad actors can take advantage of that dysfunction and abuse the system to hurt others. Unlike most countries, the burden of proof is on the accused to defend themselves in these situations, and they have to undertake those costs—even when they’re innocent! And there’s no guarantee they’ll receive damages even if they clear their name.

That means wealthy powerful people and large corporations can file these kinds of lawsuits to shut up anyone who calls them out. And while this is typically done to target activists and journalists, I’ve seen it done by local businesses against people who merely left them negative reviews online.

Not only is this a detrimental event in a person’s life, it also clogs up our court system and wastes countless amounts of taxpayer resources as the system has to devote time to figuring out what is and isn’t a frivolous lawsuit. We simply need better standards to guard our resources, and better protections for free speech.

A well-drafted federal law would allow defendants to secure a quick dismissal before the costly discovery process begins, ensure they could recover attorney’s fees and costs when they win their anti-SLAPP motions, automatically stay discovery when an anti-SLAPP motion is filed, and allow defendants to immediately appeal a trial court’s denial of anti-SLAPP motions. 

This should be an easy bipartisan win.

Stop animal abuse. And stop SLAPP abuse too.

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