Thursday, February 6, 2014
Ninth Circuit Panel Throws Out Part of Suit Against CNN Over Lack of Closed-Captioning
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday threw out part of a lawsuit by disability advocates who claim that Cable News Network has been violating their rights by not closed-captioning news videos that appear on its website.
The panel ruled that by attacking how CNN presents its news content online, the putative class action brought by the Greater Los Angeles Agency on Deafness, Inc. and three individuals implicates protected activity under the anti-SLAPP statute. It also held that the plaintiffs failed to show a likelihood of prevailing on an Unruh Act claim for disability discrimination, because the lack of closed-captioning has an equal impact on all viewers.
But while the court reversed a magistrate judge’s denial of the anti-SLAPP motion with regard to the Unruh Act claim, it deferred ruling as to a claim under the California Disabled Persons Act, pending further proceedings in the California Supreme Court. The panel certified, for the state court’s consideration, the question of whether websites are “places of public accommodation” to which the DPA guarantees “full and equal access.”
The answer to that question will be dispositive of whether the plaintiffs are likely to prevail on the DPA claim, and thus whether the claim can survive the anti-SLAPP motion, the panel said.
The Greater Los Angeles Agency asked CNN in 2010 to closed-caption all of the video clips on its site, 100 or more of which are posted daily. The network responded that it would comply with whatever requirements the Federal Communications Commission, which was considering the issue at the time, eventually imposed.
The FCC eventually decided to require closed-captioning of “full-length video programming delivered using Internet protocol . . . if the programming is published or exhibited on television in the United States with captions,” but to exclude online video clips from the requirement.
In June 2011—six months before the FCC issued its rules on the subject—the agency filed its action in state court, before CNN removed it to the U.S. District Court for the Northern District of California, and the parties stipulated that Magistrate Judge Laura Beeler could hear the case. Beeler denied the anti-SLAPP motion on the ground the suit did not implicate protected activity, finding it unnecessary to rule on whether the plaintiff was likely to prevail under either the Unruh Act or the DPA.
Judge M. Margaret McKeown, however, in her opinion for the Ninth Circuit, said the magistrate failed to broadly construe what constitutes protected activity, as the California Legislature intended.
While the plaintiffs were not seeking to change the substantive content of the site, she noted, they were seeking “to change the way CNN has chosen to report and deliver that news content by imposing a site-wide captioning requirement on CNN.com.” By targeting “conduct that advances and assists CNN in exercising its protected right to report the news,” the judge said, the suit implicates free speech rights in connection with a matter of public interest.
Turning to the merits prong of the SLAPP analysis, McKeown explained that to prevail under the Unruh Act, the plaintiffs would have to show intent to discriminate, which they failed to do.
“At the time GLAAD initiated this action, CNN did not offer closed captioning on any news video displayed on CNN.com,” the judge wrote. “As such, its policy of displaying online video programming without closed captioning applied equally to all CNN.com visitors, hearing-impaired or not.”
But the law was not clear as to whether the DPA applies to plaintiffs’ claims, so that issue should first be considered by the state high court, the judge said, rejecting CNN’s argument that the DPA claims are preempted by federal statutes or barred by the First Amendment.
The case is Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 12-15807.
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