Court Hears Argument about Audio Description and Captioning
On January 13, 2010, Court Room 2 of the federal court of appeals in San Francisco was packed with people with visual and hearing impairments. The public was there to listen to oral argument about whether a lawsuit can go forward against a movie theater that refuses to provide captioning or audio description for movie-goers with disabilities.
Harkins Movie Theatres, an Arizona-based chain, had convinced the lower court to dismiss the case with its argument that neither the Americans with Disabilities Act or Arizona State law require description or captioning. After an hour of argument from both sides, liberally peppered with questions and comments from Judges Hug, Kozinski and Clifton, it was clear that the case is far from over.
“Do the Right Thing”
The three appellate judges hearing the case demonstrated a keen interest in the issue and grilled the lawyer for the Harkins movie chain about why his company didn’t just “do the right thing” and provide the technology to allow people with visual and hearing impairments to enjoy movies. Harkins’ attitude, said Judge Alex Kozinsky, “does not strike me as a generous approach.”
At the oral argument, real time captioning and a sign language interpreter were provided by the Court to accommodate members of the audience with hearing impairments. The judges seemed impressed with the ease at which accommodations could be provided in the courtroom — a restored historic landmark over 100 years old. They wondered out loud why, if the court could provide this accommodation, a technologically sophisticated movie chain could not.
Why wouldn’t [Harkins] want to do this? They don’t have to tear down theaters, all they have to do is add a little bit of electronic equipment which is getting cheaper by the day. We’re not equipped for this but we set it up in a jiffy.— Judge Alex Kozinski
The judges also noted the position of the U.S. Department of Justice. The Obama administration Justice Department had filed a brief in support of the argument that captioning and audio description are “auxiliary aids and services” under the Americans with Disabilities Act. Amicus briefs were also filed by many advocacy organizations including the American Council of the Blind, the American Foundation for the Blind, the American Association of People with Disabilities, and the Screen Actor’s Guild. Rio Popper, a nine year old who is blind, and her mother Helen Popper, who signed on to the friend of the court brief filed in support of audio description, were present in the court room for the argument.
Here are some of the other statements that the Judges made during the hour long argument. Jump to the resource section below for a link to the full audio transcript. If the parties do not settle the case, as the Judges strongly encouraged them to do, a written court decision will be issued at an unspecified date in the future.
Carrying people up the courthouse steps
Judge Kozinski probed the movie theater’s argument that deaf and blind movie goers are as free as anyone else to sit through a movie without captioning or description. He compared that type of reasoning with now-discredited claims that it is acceptable to force people who use wheelchairs to be carried up the courthouse steps, and reminded the Harkins lawyer that:
We have a Supreme Court case that had to deal with the issue of crawling up the courthouse stairs. . . where lawyers just like you stood there and made that argument. Today we laugh at that. . . I don’t know why we won’t be laughing at what you are saying 3 or 4 years from now. Why isn’t this just as silly or implausible an argument as the courthouse steps argument?
— Judge Alex Kozinski
Be the good guys
At several points during the argument by the movie theater’s lawyer the judges expressed surprise that Harkins had chosen to fight this case so hard:
You are going to lose eventually. I don’t know if you are going to lose this case or not, but you are going to lose this battle in the end. Your can get out in front of it and be the good guys, or you can be dragged kicking and screaming and look like jerks. i don’t understand why you are chosing to fight this battle. — Judge Alex Kozinski
Modern Movie Theaters
The court recognized that the legal issues before it must be considered in light of the modern movie industry. As Judge Kozinski noted:
Theaters cost huge amounts of money. A movie theater is no longer a barn with a sheet at one end and a bunch of chairs… you have all sorts of sophisticated technology, 3D viewing and so on. … this seems like a drop in the bucket. — Judge Alex Kozinski
Do it cheerfully
The judges urged the parties to use the mediation services of the Ninth Circuit and resolve the case:
This is a case where lawyers can be healers rather than warriors. This is the kind of case where you should be working together. — Judge Alex Kozinski
You should “try to work it out”, said Judge Kozinski. You don’t want to come off as being “forced to do something” that you “should willingly and cheerfully and happily do.”