Movie Theater Captioning, Part 1 of 4: A Wonderful Statute and an Unexpected Problem

Going to the movies remains America’s favorite night out, but ever since the movies added sound to the moving picture, millions of us with hearing loss have been unable to fully enjoy that experience. Thanks to the Americans with Disabilities Act, the efforts of a number of DHHBA members, and advances in technology, we should very soon be able to not only see but understand virtually every movie at every theater.

As we all know, the ADA requires places of public accommodation like movie theaters to offer auxiliary aids and services, which are defined as “qualified interpreters or other effective methods of making aurally delivered material available to individuals with hearing impairments.” Businesses must provide those aids unless they can show that doing so would bring about a “fundamental alteration” of the business or impose an “undue burden.” Implementing regulations state that captioning is an auxiliary aid. It would therefore appear self-evident that movie theaters would need to provide captions – putting the dialogue and other aural information into written form and displaying it visually in sync with the on-screen action – unless they could establish one of the two recognized affirmative defenses.

But it was not that simple. The ADA statute itself says nothing about movies, but legislative reports from both the Senate and the House stated that the ADA does not require theaters to show open-captioned films, in which the captions are displayed on the screen and visible to the entire audience. Neither that statement nor the legislation so much as acknowledged the conflict between the two, much less attempt to reconcile the tension.

Not surprisingly, the affected parties had diametrically opposed views on how to resolve the square conflict between the statute and the statement of legislative intent. The theaters believed the legislative history meant that all they needed to do was provide assistive-listening devices, and that no captioning was required. The deaf and hard-of-hearing movie-going community believed that the language of the ADA statute should control, and that if the theaters did not provide open captioning, they should at least have to provide closed captioning, in which captions are visible on individual viewing devices to patrons who request them.

Unable to resolve the plain contradiction between text and history, some courts simply tried to avoid the problem altogether, and those efforts led to some terrible outcomes. In the first case about movie captioning, plaintiffs asked a court in Oregon to require theaters to install devices that would display closed captions. The court refused, holding that doing so would impose an undue financial burden on the theaters. In a case from Texas, the court agreed that caption-viewing devices would cost too much, and that really, all the ADA required was that the theaters let us enter the building and take a seat, and that if we couldn’t understand the dialogue, well, that was basically our tough luck. And in a case from Arizona, the court said that the theaters did not have to alter their products – uncaptioned movies – in order to meet their ADA obligations.

One bright spot was a 2003 case from the District of Columbia, in which DHHBA member John Stanton was a named plaintiff and leading strategist. The case asked for closed captioning at a reasonable number of theaters – in other words, however many wouldn’t constitute an undue financial burden. The court acknowledged the conflict between the ADA text and the legislative history, but reconciled it by noting that open captioning and closed captioning are fundamentally different, and that nothing in the legislative history suggested closed captioning could not be required.

Still and all, the situation in 2005 – 15 years after ADA was passed – was a disappointment. We had a few theaters offering a few captioned movies in a few locations at mostly inconvenient times. The ADA goal of “full and equal enjoyment” was a long ways off.

Movie Theater Captioning, Part 2 of 4: The Tide Turns (to be posted next week)

Movie Theater Captioning, Part 3 of 4: A National Requirement (to be posted the last week of April 2018)

Movie Theater Captioning, Part 4 of 4: We’re Not Done Yet (to be posted the first week of May 2018)

John Waldo is counsel to the Association of Late Deafened Adults (ALDA), a nationwide support and advocacy group, and to the Washington State Communication Access Project (Wash-CAP) and the Oregon Communication Access Project (OR-CAP), two statewide advocacy groups.

Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). Additionally, this post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.

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