Netflix capitulated, and agreed to put captions on all of its online videos by 2014.
CNN? They fought, and tried to have a similar lawsuit, brought by the Greater Los Angeles Agency on Deafness (GLAAD) dismissed under California's anti-SLAPP statute, which provides a mechanism for tossing lawsuits at an early stage if they target conduct in furtherance of free speech rights.
CNN lost in the lower courts, based on dicta that stated that closed captioning is a mechanical transcription that does not implicate content and the First Amendment.
Closed Captioning Does Implicate First Amendment
The Ninth made quick work of the first prong of anti-SLAPP analysis, reversing the lower court and finding that GLAAD's lawsuit did implicate protected conduct:
"Even if GLAAD does not request any changes to the substantive content of CNN's online news videos, GLAAD, by its own admission, seeks to change the way CNN has chosen to report and deliver that news content by imposing a site-wide captioning requirement on CNN.com. In doing so, GLAAD targets conduct that advances and assists CNN in exercising its protected right to report the news."
Once the first prong is met, the burden shifts to GLAAD to show a likelihood of succeeding on the merits of their two claims: violations of the California Unruh Act and the California Disabled Persons Act (DPA).
Unruh Act: No Evidence CNN Targets Disabled
In order to prevail on an Unruh Act claim, GLAAD would have to show that CNN intentionally discriminated against hearing-impaired individuals. Unfortunately for GLAAD, there is a lot of controlling law on CNN's side, including a case where Comcast bundled music channels with video channels. The sum of it all basically says that even if there is a disproportionate impact on the disabled, it doesn't amount to intentional discrimination.
DPA: No Clue. A Little Help, Cal. Supremes?
After running through a smorgasbord of arguments brought by CNN as to why GLAAD couldn't prevail on a Disabled Persons Act claim, such as federal preemption by statute or FCC regulation, First Amendment arguments, and even commerce clause claims, the court hit a roadblock on the issue of whether a websites are "places of public accommodation" for DPA purposes.
There are credible arguments on both sides, and no clear answer. If websites are "places of public accommodation," this could mean that every website with video clips and no closed captioning is violating the California DPA. Needless to say, this is a big case.
The Ninth Circuit certified the question to the California Supreme Court, asking "Does the DPA's reference to 'places of public accommodation' include websites, which are non-physical places?"
- Greater L.A. Agency on Deafness v. CNN (Ninth Circuit Court of Appeals - Order and Certified Question)
- Greater L.A. Agency on Deafness v. CNN (Ninth Circuit Court of Appeals - Opinion)
- Update: Protected Blogger Wants Elaboration on Alleged Extortion (FindLaw's Ninth Circuit Blog)
- Netflix Sued by Deaf Group: No TV Subtitles (FindLaw's Law & Daily Life)