Lights! Camera! Captions!

     OAKLAND, Calif. (CN) - The Greater LA Council on Deafness can proceed with a lawsuit claiming CNN violated the civil rights of 100,000 deaf Californians by failing to include captions on videos posted to its website, a federal judge ruled.
     U.S. District Judge Laurel Beeler rejected CNN's motion to strike allegations from the complaint.
     CNN claimed the allegations arose from CNN's newsgathering activities and dissemination of news concerning matters of public interest, and that the plaintiffs could not establish probability that they would prevail on their claims.
     But Beeler held that CNN's decision not to caption its videos was not an act in furtherance of its First Amendment rights.
     CNN had moved to strike the claims under California's anti-SLAPP statute, which allows for early dismissal of claims that are designed to chill the exercise of First Amendment rights.
     A defendant must make a "threshold showing that the challenged cause of action arises from acts in furtherance of defendant's right of free petition or free speech under the United States or California constitutions in connection with a public issue," Beeler wrote. "'If the court concludes such a showing has been made it determines if plaintiffs have shown a probability they will prevail on their claim,'" Beeler wrote, citing Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (Cal. 2002).
     CNN claimed that imposing any limits on the first prong of the anti-SLAPP test, at least when applied to news organizations, "would construe the statute in an impermissibly narrow manner." CNN claimed that all of its activities as a news organization should be considered to be furthering free speech.
     The Council on Deafness countered that "nothing in the legislative history or state or federal law exempts media corporations from making the threshold showing that a plaintiff's cause of action arises from the media corporation's furtherance of free speech."
     It claimed that accepting CNN's interpretation of the statute would "contradict the statute by effectively removing the first prong - which requires the court to determine whether the defendant's act that underlies a plaintiff's claim is in furtherance of the defendant's free speech rights - whenever the defendant is a news corporation or when defendant's acts are in any way connected to speech."
     Beeler noted that the California Legislature did not exempt news organizations from satisfying the first prong of the anti-SLAPP test and that if it "wanted to exempt media organizations explicitly, it could have."
     Beeler wrote that a court must consider carefully an early motion to strike because if granted, the plaintiffs must pay attorney's fees and costs, among other advantages, especially if, as in this case, a defendant proposes a "broad categorical rule that is inconsistent with the statute's explicit command to conduct a two-prong inquiry and the statute's articulated purpose of reducing lawsuits brought primarily to chill free speech rights."
     Beeler held that CNN's status as a news organization does not automatically establish that all of its business activities are acts in furtherance of its protected free speech rights.
     CNN also claimed that its refusal to provide captioning for online videos is an act in furtherance of its free speech rights, but the plaintiff and Beeler disagreed.
     "Plaintiffs do not target the specific content of any broadcast speech or any practice related to producing that content," Beeler wrote. "This distinguishes the instant case from those that CNN cites, which either did not examine the first prong or were about (a) whether the speech was in connection with a public issue, (b) conduct that was more clearly speech, or (c) conduct that aided the production of speech."
     Beeler found that, in contrast to the cases cited by CNN, 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."
     Beeler also rejected CNN's argument that its decision to not caption is about editorial control or an expression of free speech, finding factual questions about technologies available to caption videos precludes a ruling at this stage of the litigation. And "given that there would be no limit to this approach, the court rejects CNN's argument that the potential imposition of costs transforms the captioning into acts in furtherance of speech."
     Beeler added: "CNN's proposed application of the anti-SLAPP statute to its conduct here would result in a rule without limits ... that extends beyond conduct in furtherance of free speech to cover virtually any conduct of a news media organization."
     Beeler reiterated that "it is not enough that a cause of action may be triggered by protected activity or that protected activity lurks in the background. Instead, the issue is whether defendant's conduct that gave rise to liability constitutes protected speech or petitioning."