[tabi] ACLU "banner day" in court!

  • From: "Lynn Evans" <evans-lynn@xxxxxxxxxxx>
  • To: <tabi@xxxxxxxxxxxxx>
  • Date: Fri, 15 Jan 2010 08:56:19 -0500

FYI from another mailing list

----- Original Message ----- 
From: Joel Snyder 
To: 'ACB audio description discussion list' ; acb-l@xxxxxxx ; 
Cc: LF@xxxxxxxxxxx ; LDardarian@xxxxxxxxxxxx 
Sent: Thursday, January 14, 2010 6:18 PM
Subject: [acb-l] A "banner day" in court!

Hi all,


As many of you know, yesterday in San Francisco there was an oral argument in 
the 9th Circuit Court of Appeal in a case concerning captioning and audio 
description in movie theaters.


Jeff Thom of the California Council of the Blind, along with top access 
advocates/attorneys, provided an amicus brief in the case on behalf of ACB, 
AFB, the AAPD, the Screen Actors' Guild, and others as well as individual blind 
movie-goers.  The case was argued by a lawyer in the Arizona Attorney General's 
office who filed the case against the movie theater chain that refused to 
provide captions or audio description. 


You'll enjoy reading the blog post by John Waldo appended at the bottom of this 
message.  (The actual blog post  can be accessed on the web at:  


I think we've all taken a major step forward in support of access at the movies!


All best,





President, Audio Description Associates, LLC

"The Visual Made Verbal"  tm

6502 Westmoreland Avenue, Takoma Park, MD  20912

jsnyder@xxxxxxxxxxxxxxxxx -- 301 920-0218

Cell:  301 452-1898  --  Fax: 408 445-0079


For more information about audio description, please visit:



Director, Audio Description Project

American Council of the Blind

jsnyder@xxxxxxx -- 202 467-5083




Posted on January 14, 2010 by John Waldo 

Banner Day in Court for People with Hearing Loss 


A federal appeals court in San Francisco heard oral arguments on Jan. 13 about 
whether movie theaters must offer services like captioning or audio 
descriptions so that those of us with sensory losses can enjoy the movies. And 
the arguments of one theater chain that all it needs to do is open the doors 
and let us in was, to put it mildly, poorly received.

Those of us who have spent a lot of time in appellate courts are usually pretty 
cautious about trying to predict a case's outcome based on the questions the 
judges ask. But there are sometimes a few clues, or "tells" that can indicate 
that, just maybe, things aren't going your way.


1) When the judges start making the other side's argument for them, that's a 
pretty good "tell."


2) When the judges say your clients are "being jerks," that's a pretty good 


3) When the judges suggest that "someday," people will be laughing at your 
argument, then when you don't back off, proceed to do so, that's a pretty good 


Well, I'm pleased to report that all of those things happened to the attorneys 
for the Harkins theater chain when the Ninth Circuit Court of Appeals heard 
arguments about whether the Americans with Disabilities Act requires movie 
theaters to show captioned (and audio-described) movies.


As you may know, the Arizona Attorney General's Office sued the Harkins theater 
chain, claiming that the business violated both ADA and Arizona state law by 
failing to show captioned and described movies. The AG was not suggesting that 
the theaters themselves had to provide the captions or descriptions, but only 
that they need to install the equipment necessary to show the captions and 
descriptions provided by the studios.


The theaters took the position that ADA does not regulate the contents of their 
products or services, and that they offer non-captioned movies. "We have the 
right to choose what services we provide, and that is our choice," said the 
attorney for the theaters. "We let everyone come into our theaters and see our 
(non-captioned) movies, and that is what ADA requires us to do."


The AG's office, on the other hand, said that captions are the kind of 
"auxiliary aid and service" that the ADA requires to enable people with hearing 
and vision losses to gain the "full enjoyment" of the businesses' offerings.


The judges basically said flat-out that they thought the theater argument is 
preposterous. Alex Kozinski, the chief judge, said, "What if we took the 
position that this building is a building with steps, and if someone in a 
wheelchair wants to come in, they can find somebody to carry them?"


Kozinksi went on, "Actually, that case happened, and some lawyer argued that 
being able to crawl up the steps was good enough. Today, people are laughing at 
that argument, and I wouldn't be surprised if in a few years, people are 
laughing at your argument."


The attorney didn't back down. And the judges started laughing.

"Captions just let them enjoy the same movie that everybody else sees," 
Kozinski said. "I don't know why you don't want to do this."


Kozinski went on to say that at best, it's only a matter of time before movie 
theaters have to comply. "You are going to lose," he said. "You might not even 
lose this case, but you will lose someday. Why don't you get out ahead and do 
the right thing instead of being jerks?"


Nor were the judges impressed with any argument about cost. I asked for CART 
for the hearing, which was provided. "That wasn't in our budget," Kozinski 
said, "but we pulled it together in a day. With what theaters are doing with 
3D, the cost of this (providing equipment to show captions) is just a drop in 
the bucket."


Now I don't want to suggest that we're going to see every movie captioned at 
any time in the future. The judges seemed pretty clear in their view that 
open-captioning can change the moviegoing experience for hearing patrons, and 
that the interests of those patrons must be balanced against the benefit to 
those of us who need captions. I think it's quite clear that those theaters 
that offer open captions, visible to everyone in the audience, would not be 
required to caption every movie.

The judges also recognized that the pending change-over to digital display may 
mean that some things that can't be done now can be done in the future, and 
that today's captioning equipment may become obsolete. But the judges said 
issues of that nature should be worked out by the parties themselves.


In fact, that's just what the judges suggested. "You've got your general 
counsel here," Kozinski told the Harkins attorney, "and the AG's office is 
here. Why don't you just go down to the cafeteria and work out a schedule 


I would anticipate a "quick" decision from the court, but "quick" from an 
appellate court probably still means four to six months.


Meanwhile, the attorneys representing the movie theaters in our Washington case 
were in the audience. They asked me afterwards whether we could just put our 
case on ice for awhile, until the court rules on Harkins. They noted that we're 
"going to spend a lot of money" making motions in our case.


I said I wasn't interested in a stay. What I suggested instead is that they 
basically just throw in the towel on any argument that they don't have to do 
anything, and sit down and negotiate what and when they have to do things. 
Their response: "we'll report to our clients about what happened today, and get 
back to you."


The bottom line -- circle today's date on your calendar. This was the day that 
the movie theaters' arguments that "we don't have to do anything" crumbled.


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