CNN’s Partial Victory in Closed Caption Fight

Advocates for the deaf lost the latest round in an effort to force CNN to provide caption service on its webside, according to a 9th U.S. Circuit Court of Appeals decision Wednesday.

The Greater Los Angeles Agency on Deafness (GLAAD) sued CNN in 2011 seeking an order to force captions in its online videos.  The lawsuit claimed failure to provide the captioning service violated the state Unruh Civil Rights Act and the Disabled Persons Act.

The ruling strengthened the California anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which allows quick dismissal of meritless lawsuits whose purpose is to interfere with First Amendment rights.  The case reveals tensions between California’s anti-discrimination law on the one hand and its anti-SLAPP protections on the other, according Judge Margaret McKeown.

The three-judge panel reversed a trial court decision in Oakland that held providing captions on a website had little to do with free speech.  U.S. Magistrate Judge Laurel Beeler ruled the anti-SLAPP law does not apply to a lawsuit seeking equal access for the hearing-impaired by compelling CNN to caption videos posted on the website.

She thus did not answer the second question, whether the agency was likely to prevail on the merits of its civil rights claims.

CNN appealed.

The 9th Circuit reversed saying the agency failed to meet its burden of showing it was likely to prevail.

“Notably absent fro the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability,” McKeown wrote.

But the panel stayed any further action so it could pose a legal question to the California Supreme Court on state law.  The judges want to know if the Disabled Persons Act’s equal access requirement applies to websites, a potentially significant question for video-laden websites.

“Numerous recent cases have discussed the DPA’s applicability to virtual spaces like websites, but there is no conclusive California authority on point,” the panel wrote.  It asked the state’s highest court to resolve the question.

Anti-SLAPP

California’s anti-SLAPP law allows courts to toss out lawsuits that lack merit and are filed to silence opponents through costly and time-consuming litigation.  A SLAPP suit is considered one that is filed, not to correct a wrong or prevail for money damages, but to slow or silence an opponent.

A defendant in a SLAPP suit may file a motion with the court to throw out the lawsuit, known as an anti-SLAPP motion.

Mckeown was joined by Judges Clifford Wallace and Sandra Ikuta.

Case: Greater Los Angeles Agency on Deafness v. CNN, No. 12-15807

 

 

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