Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

A federal judge in Arizona has just come out with an absolutely awful decision about movie captioning. The case was brought by the Arizona attorney general's office, which asked that movie exhibitors provide captioning to make movies accessible to people with little or no hearing, and narrative descriptions to make movies accessible to people with little or no vision.

The court ruled that the Americans With Disabilities Act (ADA) requires neither captioning nor narrative descriptions. Worse than the result was the reasoning. The opinion states that converting dialog into captions or visual material into narrative would fundamentally alter the nature of movies.

Since the ADA does not require public facilities to fundamentally alter the nature of their services, this ruling would mean that far from needing to expand their offerings of captioned movies, theaters may in fact eliminate the limited offerings of captions they currently provide.

Because of the important place that movies occupy in our culture, expanding the availability of either open-captioned movies (where captions are visible from throughout the theater) or close-captioned movies (where captions are displayed only to patrons requesting them) has been a fundamental goal of the hearing-loss community.

The ADA itself has been interpreted as not requiring that all movies be open-captioned. Nevertheless, persuasion and litigation has produced mixed results -- limited availability of both open- and closed-captioned movies at a few theaters in a few locations. The trend in Washington, where litigation has been contemplated but not filed, has been positive but frustratingly slow. A few theaters offer close-captioned showings of selected films, while other theaters offer intermittent open-captioned showings of selected films. Similarly, a few theaters are offering narrated descriptions of selected films.

The Arizona decision is a giant step backwards. By declaring the conversion off aural material into text (or vice versa) to be a fundamental alteration and not required under ADA, the court is saying that no matter how easily or inexpensive that conversion might be, it is never required under federal law. Worse yet, nothing in the opinion is limited to movies -- the reasoning would also rule out captioning of live-theater presentations, lectures and so forth. We might be entitled to devices that will amplify the sound, but not to anything else.

The decision is being appealed to the Ninth Circuit Court of Appeals, which includes Washington, meaning that the rule of law that comes out of the case will apply here. A number of national advocacy organizations that represent the interests of both hearing-loss and  vision-loss constituencies are planning to file legal briefs urging that the decision be overturned. Wash-CAP is considering filing a brief pointing out the impact this decision could have in the State of Washington.  

Courts make bad decisions every day that we figure out how to live with. Once in a while, though, courts make decisions that are so unbelievably bad that you shake your head and say, "How could this happen?" This is one of those cases. This is also why we have appeals courts. Nothing is ever certain in the legal world, but this decision is so far off base that I have a relatively high degree of confidence that it will be overturned on appeal.

• Email This
• Print
• Comments
• Trackbacks

PUBLIC FACILITIES: ADA requires that every "public facility" furnish aids and services that will enable us to fully enjoy the services provided. "Public facility" is a broad term that encompasses virtually every place we might patronize, including places like hospitals, doctors' and lawyer' offices, stores, theaters and so forth. While public facilities do not have to give primary consideration to our individual requests, they do have to accommodate us in the most integrated setting possible.

Again, the facility need not provide aids and services that would constitute an undue burden, and again, that is determined in reference to the enterprise as a whole. For example, a doctor cannot refuse to provide a sign-language interpeter for a deaf patient simply because the interpreter costs more than the amount charged to the patient -- the question is whether the doctor's entire practice is able to absorb that cost. Nor can the facility charge more to patrons who request aids and services.

There are some significant exceptions. Any entity operated by a religious organization is exempt from the public-facility requirement, even if the entity serves only a secular purpose. (Although they are not covered by the ADA, many churches have been among the leaders in providing aids and services). Bona fide private clubs are also exempt, but there are fairly stringent tests to determine which private organizations can claim this exemption. Organizations that require a membership fee but are open to all would seldom qualify, and if a private club rents its facilities to the public, at least some of its activities may be covered by ADA.

• Email This
• Print
• Comments
• Trackbacks

GOVERNMENT ENTITIES. We're all entitled to participate in the civic life of our city, state and nation, and we're entitled to enjoy the benefits provided by the government. So in most instances, any facility or service operated by a state or local government must offer aids and services sufficient to ensure that communication with us is as effective as communication with those whose hearing is undiminished. In determining what aids and services to offer, public entities must give "primary consideration" to our preferences.

The most significant national case dealing with the duties of public entities towards those with hearing loss comes from Kitsap County. A man asked that his divorce trial be captioned. Instead, he was offered listening devices, a small and acoustically friendly courtroom, and the opportunity to move around so that he could speech-read the testifying witnesses. The Ninth Circuit Court of Appeal ruled those aids and services were insufficient. It reminded the county of its obligation to give "primary consideration" to the requests of the individual, and warned abainst furnishing aids and services based on "stereotypes," such as the belief that assistive listening devices are adequate for all individuals with a hearing loss, or that all of us benefit from sign-language interpretation.

In the wake of that decision, the Washington Supreme Court adopted General Rule 33, which applies to all non-federal courts in Washington. It provides that any participant in a court proceeding is entitled to the aids and services they request if they give two weeks' notice unless it would be impossible to provide the service an the date scheduled for the proceeding, and it would be impossible to continue the proceeding until the aids and services became available.

While GR 33 takes care of the access problem for parties, witnesses, jurors and attorneys, it leaves open the question of whether aids and services have to be provided for spectators. My own view is that ADA essentially requires equal treatment where possible, and that if a court proceeding is open to hearing spectators, then aids and services must be provided to make the proceeding equally open to those with hearing losses.

• Email This
• Print
• Comments
• Trackbacks