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CNN Gets First Amendment Victory in Video Captioning Dispute

The 9th Circuit gives the cable news network relief from one discrimination claim but sets up a future showdown over the issue of whether websites are "places of public accommodation."

Jeff Zucker CNN - P 2013
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CNN president Jeff Zucker

On Wednesday, CNN was given the benefit of the First Amendment in a legal dispute with a deaf group that insisted the cable news network provide closed-captioning on videos uploaded to its website. The 9th Circuit Court of Appeals respectfully noted CNN's editorial decision-making and has given the Time Warner subsidiary an out from one discrimination claim while setting up an important legal showdown on another.

The federal appeals court was reviewing a class action lawsuit brought by the Greater Los Angeles Agency on Deafness (GLAAD), which claimed CNN was violating California's Unruh Civil Rights Act and California's Disabled Persons Act in refusing to immediately provide captioning on all of its videos.

In reaction to the lawsuit, CNN looked to take advantage of California's anti-SLAPP statute, which provides a way for those facing frivolous claims to dismiss a lawsuit at an early stage. But to prevail on an anti-SLAPP motion, CNN first had to show that the lawsuit targeted conduct in furtherance of its free speech rights.

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A magistrate judge previously ruled that CNN hadn't met this test. In coming to the decision, that judge said the plaintiffs "do not assert a right to change CNN's broadcast or expressive content or otherwise interfere with CNN's editorial discretion. They ask only for access to the video content."

Ninth Circuit Judge M. Margaret McKeown disagrees.

"Motivated by concerns about the potential costs, delay, and inaccuracies caused by captioning, CNN made the editorial decision to forego captioning when delivering and reporting the news on its web site," she writes. "Although GLAAD presents conflicting evidence as to the putative expense and inaccuracies imposed by closed captioning, that evidence, even if fully credited, does not alter our view that CNN has made the requisite prima facie showing that GLAAD’s action targets an act -- declining to caption online news videos -- that furthers CNN’s free speech right to report the news."

The judge quickly notes that the decision is not meant to "imply that every action against a media organization or any action imposing increased costs against such an organization falls within the scope of California’s anti-SLAPP statute.... We adopt instead a much more limited holding: where, as here, an action directly targets the way a content provider chooses to deliver, present, or publish news content on matters of public interest, that action is based on conduct in furtherance of free speech rights and must withstand scrutiny under California’s anti-SLAPP statute."

Since CNN prevails here, the burden shifts to GLAAD to demonstrate a probability of prevailing on the merits of the case. If GLAAD can't show a likelihood it will ultimately win the lawsuit, the legal claim is dismissed.

GLAAD can't convince the 9th Circuit that it has a probability of prevailing on the Unruh Act because it has not offered convincing evidence that CNN intentionally discriminated against hearing-impaired individuals on account of their disability.

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That leaves California's Disabled Persons Act.

CNN had a number of threshold arguments why GLAAD couldn't prevail on this claim. Judge McKeown rejects, however, that the claims are preempted by federal law, preempted by FCC regulations on closed captioning for television programming, are impermissible under the First Amendment, or burdened interstate commerce.

And so, CNN is left with an argument that the Disabled Persons Act does not apply to websites. This argument raises the specter of a potentially landmark decision. The disability act entitles citizens to "full and equal access" to "places of public accommodation," but do virtual locations, or non-physical places, count?

The 9th Circuit has certified this issue to the California Supreme Court for answers. So the case isn't closed. CNN has proven that its decisions on uploaded videos are in furtherance of its free speech. We'll now get to see whether those with disabilities have equal access to the product of free speech -- even if it's online.

(Addendum: The Greater Los Angeles Agency on Deafness officially uses the acronym GLAD, likely so as not to be confused with the Gay & Lesbian Alliance Against Defamation. However, the 9th Circuit abbreviated it GLAAD and to remain consistent with the written text, we've done likewise.)

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner