[Missouri-l] FW: [leadership] A "banner day" in court!

Thu Jan 14 21:58:15 CST 2010

  _____  

From: leadership-bounces at acb.org [mailto:leadership-bounces at acb.org] On
Behalf Of Joel Snyder
Sent: Thursday, January 14, 2010 8:19 PM
To: 'ACB audio description discussion list'; acb-l at acb.org;
leadership at acb.org
Cc: LF at LFLegal.com; LDardarian at gdblegal.com
Subject: [leadership] A "banner day" in court!
Importance: High

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/b
anner-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

 <mailto:jsnyder at audiodescribe.com> jsnyder at audiodescribe.com -- 301
920-0218

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

For more information about audio description, please visit:

 <http://www.audiodescribe.com/> www.audiodescribe.com

Director, Audio Description Project

American Council of the Blind

 <mailto:jsnyder at acb.org> jsnyder at acb.org -- 202 467-5083

 <http://www.adinternational.org/> www.adinternational.org

Posted on January 14, 2010 by John Waldo
<http://www.hearinglosslaw.com/promo/about/>  

Banner
<http://www.hearinglosslaw.com/2010/01/articles/washcap-1/public-facilities/
banner-day-in-court-for-people-with-hearing-loss/>  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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