Friday, April 30, 2010

Arizona v. Harkins Amusement Enterprises (9th Cir. - April 30, 2010)

I completely agree with Judge Hug on this one.

Does the ADA require movie theaters to help blind or deaf people watch movies? They could do so, after all. For deaf people, you could require "open captions," which is the text you see at the bottom of movies or on televisions in bars (i.e., "subtitles"). You could alternatively require "closed captions," which essentially are open captions projected at the back of a movie theater and mirror-like things provided to individual patrons who want to have these captions appear superimposed on the screen for them (and them alone). And for blind people, you could have "narration," which is where a soundtrack essentially describes (for them) what's happening on the screen.

Plaintiff files a lawsuit claiming that the ADA requires all three. The district court dismisses the suit at the pleading stage. The Ninth Circuit affirms in part and reverses in part. Exactly rightly, in my view.

The ADA requires "auxiliary aids" for deaf and blind people, which federal regulations further expressly define as including interpreters, open and closed captioning, etc. So clearly what the plaintiffs are asking for isn't categorically out of bounds.

But as for open captioning, there's a preamble to another federal regulation that expressly says that that's not required for movie theaters. For good reason, in my view. Open captioning has the result of changing the movie experience for everyone, since everyone sees the captions, and some people (including me) don't like that. So I'm on board for dismissing this claim. Even at the pleading stage. That's not required.

But I also agree with the Ninth Circuit that you can't dismiss the rest. Closed captions and narration aren't mentioned in the commentary; moreover, they only affect patrons who choose to elect them. So it's a different deal.

Admittedly, maybe providing closed captioning and narration would be overly expensive or burdensome for the theater, in which case they're not reasonable accommodations under the ADA and hence not required. But you don't decide that at the pleading stage. 'Cause maybe they're not overly burdensome. That's why we have discovery, summary judgment, and (if necessary) a trial.

So the Ninth Circuit gets this one right. If it's not that burdensome for hearing- or visually-impaired persons to be able to watch movies with everyone else, they should be granted that right, and the ADA provides exactly that. Whether that's the case requires more than simply a judgment at the pleading stage.

Spot on.