Movie Captioning Case Reaches Appeals Court

By John Waldo

January 2010

Editor: This is a hugely important case which could determine the future of movie captioning in the US, and a lot more! John Waldo has been following the case with considerable interest and just distributed the following message. You can follow John's work at http://www.hearinglosslaw.com.

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Dear Colleagues:

This could be pivotal week in the battle for movie captioning. On Wednesday, the Ninth Circuit Court of Appeals in San Francisco will hear oral arguments on a case from Arizona that could determine, once and for all, whether movie theaters have any obligation under the ADA to show captioned movies.

In the case in question, the Arizona Attorney General's Office filed a lawsuit against the Harkins theater chain, claiming that ADA requires the theaters to both show captioned movies, and to provide audio descriptions. The AG's office was not asking the theaters to prepare either the captions or the descriptions. Those are prepared by the studios for many, although not all, first-run movies, and are distributed free of charge on a separate computer disc.

The theater moved to dismiss. The argument was that ADA does not regulate the content of products or services, and that their product or service is un-captioned and un-described movies. Therefore, they said that even though the captions and descriptions are furnished free of charge, they have no obligations to install and use the equipment required to use that technology.

The federal court in Arizona agreed, saying that captions, which change audible material into visual form, and descriptions, which change visual material into audible form, constitute a different product. That case has been appealed.

The appeal argues that the court overlooked the relevant provisions of ADA, which require businesses to furnish "auxiliary aids and services" where those are required to permit "full enjoyment" of the businesses' products or services. Auxiliary aids and services are defined by example, but specifically include open and closed captioning for people with hearing loss, and recorded descriptions for people with vision loss.

The obligation to furnish auxiliary aids and services ceases at the point where furnishing such aids constitutes an "undue burden," an undefined term that has both technical and economic aspects to it. The Arizona AG will argue that the appellate court should reverse the decision flatly stating that there are no obligations whatsoever, and remand the case to the trial court for a determination as to what level of captioning can be undertaken without imposing an "undue burden" on the theaters.

As you may know, movie-captioning litigation has produced mixed outcomes. In two cases -- one out of Oregon and one out of Texas -- the plaintiffs sought nationwide class-action status, and asked that all screens be equipped to show captioned movies, and that all movies be shown in captioned form. The theater chains demonstrated that equipping all of their auditoriums to show captioned movies would cost more than their net worth, and the courts held that as a matter of law, that would constitute an undue burden.

In a case out of Washington D.C., though, the plaintiffs only asked for "more" captioning, without making any absolute demand. In that case, the court ruled that ADA did require some quantum of captioning, with the only question being how much. At that point, the case settled.

In a like vein, the New Jersey Attorney General brought suit against Regal Cinemas -- the nation's largest chain -- and also demanded "more." Regal settled that suit, equipped a number of its New Jersey theaters to show captioned movies, and now shows 12 captioned movies per week at each of those theaters. (While better than nothing, this settlement is far from ideal, because Regal shows no captioned movies in the evening on weekends -- the "prime-time" captioned movies are shown only during the week, generally on Monday and Wednesday evenings).

The odds of a successful outcome in the Arizona case improved markedly in February when the United States Department of Justice filed a friend-of-the-court brief urging reversal of the trial-court decision. This is particularly significant because the DOJ is the federal agency charged with interpreting that portion of the ADA, and the theaters had based their arguments to a great extent on DOJ regulations.

This case is hugely important for two reasons.

First, it is the first of the captioning cases to reach the appellate-court level -- the layer of courts just below the U.S. Supreme Court. While the decision will only constitute "the law" in the Ninth Circuit states of Arizona, Nevada, California, Oregon, Washington, Idaho, Montana, Alaska and Hawaii, courts in other circuits generally give at least very strong consideration to the decision of the first appeals court to rule on an issue. Thus, this case could essentially establish a "national" rule on the question of what ADA requires of movie theaters.

Second, if the case is affirmed, there is a real concern that the logic could be extended to other situations. If a movie theater's "product" is non-captioned movies, then a live theater could equally well argue that its "product" is non-captioned drama. Essentially, the "auxiliary aids and services" requirement could lose all meaning.

That could knock us out of commission in many states. A few states -- California, New Jersey, Massachusetts and Washington, among them -- have state laws that are actually significantly better than ADA. Like the New Jersey case against Regal, Wash-CAP's case against the corporate movie theaters in the Seattle area was brought exclusively under state law. So we may legally survive a bad outcome in the Arizona case. However, if theaters have to provide captioned movies only in a couple of states, both the availability of captioning equipment and the supply of captioned films could dry up in a hurry.

I've been in fairly close contact with the attorneys in Arizona who will be arguing the case. I also filed a friend-of-the-court brief on behalf of the Washington State Communication Access Project, the Hearing Loss Association of America and several other state and local hearing-advocacy groups. I'll be in San Francisco Wednesday to attend the arguments, which will be captioned, and I'll relay my impressions. Appeals courts can take anywhere from several months to two or more years after oral argument to render a decision, but sometimes, the questions the judges ask at oral argument will provide an indication of what they are thinking.