PRIVATE EYES MOVIE CLUB 

Enjoy the movies again with “Caption Glasses”! 

Private Eyes is taking a hiatus for the summer. The Club will meet again on Tuesday, September 25. 

Do take advantage of captionfish.com anywhere in North America this summer to not only see what movies are captioned, but which device the theatre uses. 

Attorney John Waldo is a regular presenter at HLAA Conventions and is counsel to the Association of Late Deafened Adults (ALDA), a nationwide support and advocacy group. He has won major court victories to force movie theatres to caption movies.  He has written a four-part series on movie captioning, and Listen!Up will post these in Private Eyes columns over the next four issues. Both he and the Listen!Up editor are members of the Deaf and Hard of Hearing Bar Association.

Movie Theater Captioning

Movie Theater Captioning, Part 2 of 4: The Tide Turns

“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 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.

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”.

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 Deaf and Hard of Hearing Bar Association (DHHBA) members, and advances in technology, we should very soon be able to not only see but also 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 attempts 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 way off.