Metropolitan News-Enterprise


Monday, May 3, 2010


Page 3


Ninth Circuit Revives ADA Suit Over Closed Captions at Movie Theaters


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday revived a lawsuit alleging that a movie theater chain’s failure to provide closed captioning and audio descriptions for the hearing and visually impaired violated the Americans with Disabilities Act.

A three-judge panel held such services are correctly classified as “auxiliary aids and services” that theaters may be required to provide under the act, reversing a decision by a federal judge in Phoenix that the suit failed to state a claim.

Writing for the panel, Judge Procter Hug Jr. said U.S. District Court Judge Roslyn O. Silver was correct in holding that the ADA did not require Harkins Amusement Enterprises to utilize open captioning, which displays captions on the screen for the entire audience. But he said Silver erred in concluding that closed captioning—which displays captions to individuals using a seat-based device—and descriptive narration of a movie’s visual elements are not required.

Hug also noted that Harkins can still argue that having to provide devices would fundamentally alter the nature of its services or constitute an undue burden.

The State of Arizona and two men, Frederick Lindstrom and Larry Wanger, brought suit under the Americans with Disabilities Act and Arizona law to remedy what they said were discriminatory accommodations at movie theaters owned by Harkins and its affiliates.

The act requires that a place of public accommodation provide auxiliary aids and services so that a disabled person is not denied the public accommodation’s services.

Lindstrom and Wanger pointed out that major movie studios distribute a significant number of wide-release movies with captions for use in open- and closed-caption projection systems, in addition to a number of releases with audio descriptions. Accessibility, however, is limited to theaters that have the proper equipment.

On appeal, Hug wrote that “[m]ovie captioning and audio descriptions clearly are auxiliary aids and services,” and he rejected Harkins’ argument that the Ninth Circuit’s decision in Weyer v. Twentieth Century Fox Film Corp. (2000) 198 F.3d 1104 supported Silver’s ruling.

The Weyer court, addressing an insured’s challenge to her long-term disability insurance policy’s limit on mental illness benefits that did not similarly limit non-mental illness benefits, held that the ADA “does not require provision of different goods or services, just nondiscriminatory enjoyment of those that are provided.”

But Hug said Harkins’ argument that the ADA’s auxiliary aids and services requirement is limited by Weyer “puts the cart before the horse.”

He explained:

Weyer does not limit…[the] requirement that a public accommodation provide auxiliary aids and services; the requirement that establishments provide auxiliary aids and services limits Weyer’s general rule that public accommodations do not have to provide different services for the disabled. Although Weyer may be controlling in the provision of goods and services generally, here Plaintiffs are seeking an auxiliary aid, which is specifically mandated by the ADA to prevent discrimination of the disabled.”

Hug agreed, however, with the defendants that regulations promulgated by the Department of Justice defeated any requirement that Harkins provide open captioning. He rejected the plaintiffs’ argument that a 1991 commentary prepared by the department stating that the ADA did not require open captioning at movie theaters did not apply because it predated the technology at issue.

Writing that the department’s interpretive guidance would be superceded every time new technology emerged, Hug commented: “Entities such as Harkins should be able to rely on the plain import of the DOJ’s commentary until it is revised.”

Chief Judge Alex Kozinski and Judge Richard R. Clifton joined Hug in his opinion.

The case is State of Arizona v. Harkins Amusement Enterprises, Inc., 08-16075.


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