Apr 302010

As we predicted and hoped, the Ninth Circuit Court of Appeals ruled today that the Americans with Disabilities Act requires movie theaters to show closed-captioned movies unless doing so would constitute an “undue burden.”

The ruling came in a case that the Arizona Attorney General’s Office filed against the Harkins theater chain. The federal district court ruled that the ADA does not regulate the content of the goods and services offered by businesses, and that the theaters are in the business of showing non-captioned movies. That case was appealed.

The Ninth Circuit opinion said that while ADA does not generally regulate the content of goods and services, ADA does require businesses to provide “auxiliary aids and services,” which are defined as including open and closed captioning. That specific provision applies to movie theaters, and controls over the general rule that ADA does not regulate content.

The court noted that when ADA was passed, a statement of purpose from the House of Representatives stated that ADA does not require theaters to show open-captioned movies. That interpretation has been adopted consistently by the federal Department of Justice, which is empowered to interpret ADA. The court said that while DOJ may change its interpretation, the theaters are entitled to rely on it until it is changed. Therefore, theaters are not required to show open-captioned movies.

The Arizona district court ruled that there was no basis for treating closed-captioned movies any differently. The Ninth Circuit disagreed. It said that open-captioning, in which captions are visible to the entire audience, may fundamentally alter the movie-going experience for others. But closed-captioning displays captions only to people who want to see them. “The difference between open and closed captioning is more than linguistic,” the opinion states.

The case now goes back to the Arizona district court, where the theaters will be able to argue that closed captioning poses an “undue burden.” Because closed captioning is readily available through the Rear Windows Captioning system, the “undue burden” issue is economic only — how much can the theaters afford?

The theaters can ask for a rehearing, but because the decision was unanimous and issued very quickly, the judges likely regarded this as pretty much of a “slam-dunk” case, and are very unlikely to grant a rehearing. An appeal to the U.S. Supreme Court is always a possibility, and is somewhat worrisome given that court’s general hostility to ADA cases. But the U.S. Supreme Court picks the cases it wants to consider, and the odds are against appealing parties — only one out of every hundred petitions for review are granted.

Assuming the opinion stands, it will become the law in the Ninth Circuit states of Arizona, California, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii, and may be persuasive in the rest of the country.

Our Washington case is currently under advisement. We brought that case under Washington law only, because our state law avoided some of the arguments made under ADA. However, the decision can’t do anything but help our case.

– Thanks to John Waldo, Wash-CAP, 4/30/10, http://www.hearinglosslaw.com/2010/04/articles/washcap-1/public-facilities/court-rules-ada-requires-closedcaptioned-movies/index.html.