[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 ;
leadership@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:
http://www.hearinglosslaw.com/2010/01/articles/washcap-1/public-facilities/banner-day-in-court-for-people-with-hearing-loss/
)
I think we've all taken a major step forward in support of access at the movies!
All best,
Joel
JOEL SNYDER
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:
www.audiodescribe.com
Director, Audio Description Project
American Council of the Blind
jsnyder@xxxxxxx -- 202 467-5083
www.adinternational.org
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
"tell."
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
"tell."
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
today?"
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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