While courts were struggling with the concept of movie captioning, technical developments were moving in the right direction. Although under no legal obligation to do so, most movie studios began providing captioning for their releases, and furnished the captions free of charge to the theaters. Also, the theaters and studios were moving closer to digital distribution and projection, in which digital data packages replaced traditional 35 mm film. Again, captions would be furnished free of charge to the theaters. The theaters’ obligation would be to purchase, install, and use the equipment needed to allow the captions to be viewed.
The legal landscape was also shifting dramatically. The perfectly awful Arizona district court case went up on appeal. Since that was the first of the movie-captioning cases to reach the appellate level, we knew it would be really important. John Stanton and I, among others, wrote amicus briefs. Knowing that there would likely be some deaf people in the audience, I was “assigned” to ask for live CART captioning in the courtroom for the oral argument, and that was provided.
Oral argument before the U.S. Court of Appeals for the Ninth Circuit was in San Francisco in January of 2010, and it was truly an epic moment. Chief Judge Alex Kozinski, who notwithstanding or justifying his personal flaws was a great champion for people with disabilities, took over the questioning. He pointed to the CART screen, and said, “this is no big deal.” He then asked the attorney for the Harkins theater chain, “Why are you guys fighting about this? You are going to lose on this issue. Why don’t you get out in front of it and look like heroes instead of kicking and screaming and looking like a bunch of jerks?”
As we all know, you can’t always predict how an appellate panel is going to rule based on the questions being asked. This time, though, I thought I probably had a pretty good idea. Judge Kozinski did say that the challenge was accommodating our needs without altering the movie-going experience for everyone else, which suggested that open captioning was going to be a tough sell. (The aural argument is still available on the Ninth Circuit website.)
The Ninth Circuit decision came down in May of 2010. In its decision, the Ninth Circuit declared that although the ADA does not require open captioning, it did require closed captioning up to the point that providing captioning would be an undue financial burden. In response to the theater arguing that there was no difference between open and closed captioning, the court said that open captioning, visible to everyone, could alter the movie-going experience for others, and could therefore be construed as a fundamental alteration.
While the Harkins case was on appeal, our Washington State advocacy group (Washington State Communications Access Project, or Wash-CAP) filed a case under Washington State law against the corporate theater owners operating in the Seattle area. We thought that if Harkins went badly, we still had a shot under Washington State law, which is considerably more protective of people with disabilities than is the ADA. (In putting that case together, I relied a lot on a Harvard Law Review article by DHHBA member Michael Stein that perceptively analyzed why some of the earlier captioning cases might have gone badly.)
The Washington trial court handed down a decision virtually identical to the Harkins decision on almost exactly the same day – an order that theaters would have to provide closed captioning up to the point that doing so would impose an undue burden. That outcome was ultimately affirmed on appeal by the Washington State Court of Appeals.
So now we had two really good decisions – a federal appellate-court decision involving Harkins – a powerhouse movie chain in Arizona but a non-presence elsewhere – and a state-law decision involving all the major theater chains, but applicable only to Washington State. The next challenge was to spread these good outcomes everywhere.
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.
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