SAN FRANCISCO (CN) - The 9th Circuit pressed advocates for the deaf to explain how their demands for captioned videos on CNN's website supersede First Amendment media rights.
Hoping to keep a jury from hearing claims that it discriminates against more than 100,000 deaf web surfers, CNN had sought relief under California's anti-SLAPP (strategic lawsuit against public participation) statute. Such laws allow for the early dismissal of claims that are designed to chill the exercise of First Amendment rights.
It claimed that the lawsuit threatens its right to gather and disseminate news on matters of public interest, and that the disability advocates cannot establish a likelihood of success in the suit.
U.S. Magistrate Judge Laurel Beeler shot CNN's motion down in March 2012.
"CNN's decision not to caption its already-generated videos is not an act in furtherance of its First Amendment rights," Beeler wrote. "CNN has already gathered and decided to broadcast the news. CNN's proposed application of the anti-SLAPP statute to its conduct here would result in a rule without limits."
In an ensuing appellate brief, the media giant insists that the "presentation and publication of online video" amounts to "conduct that comfortably fits within the broad scope of the anti-SLAPP statute."
In a hearing Monday, Judge Sandra Ikuta grilled the attorney for the Greater LA Council on Deafness about the added cost of creating closed captions for online content.
"At what point does the requirement of access become an inability to speak because it's too expensive?" Ikuta asked.
Laurence Paradis of Disability Rights Advocates said his clients are simply seeking "to have the same level of access to CNN's videos on the Internet."
Thomas Burke, CNN's attorney with Davis Wright Tremaine, argued that the decision to provide closed captions is an editorial one that is protected by the First Amendment.
Soon after the council sued CNN, the Federal Communications Commission created rules on closed captioning, he added, arguing that Congress thus has given the FCC jurisdiction over closed captions, thereby pre-empting state or federal trials.
If CNN "were judicially compelled to provide closed captioning of all news videos on CNN.com before the FCC's rules and safe harbor were announced, the speed, accuracy and cost of its reporting on the news of the day to an audience of millions could potentially be adversely affected," Burke said.
Closed captioning of online content is trickier than for TV content, and FCC technical standards may actually broaden captioning, Burke said.
Demanding captioning before the FCC creates standards will cause errors, he added.
"Accuracy tends to be a very important priority of a news organization, and it certainly is paramount at CNN," Burke said.
Judge M. Margaret McKeown asked if newspapers would be required to provide Braille and audio versions in the event the case against CNN moves ahead.
Paradis said that a "newspaper is not itself a place of public accommodation, it's a product that's delivered."
In this case, the deaf plaintiffs have alleged violations of California's Disabled Persons Act, which addresses "access to places that the public is invited," Paradis said.
Anti-SLAPP laws cannot fend off claims for access, Paradis added, taking offense at the notion that the suit aims to limit CNN's free speech.
"This is an anti-SLAPP motion they've brought," Paradis said. "We were shocked to be told by CNN that this is an effort to limit their speech."
Though McKeown agreed that the motion is also shocking to the court, she noted California appellate rulings that have read the state's anti-SLAPP statute quite broadly.
Paradis emphasized that federal and state case law emphasizes content. The anti-SLAPP statute does not aim to create a safe harbor for discrimination, he said.
Here, the deaf plaintiffs do not dispute anything about the CNN's content but rather the denial of a disability accommodation, the lawyer added.
"We are not trying to limit anything CNN shows on the Internet," Paradis said. "None of our claims would limit or delay or interfere with the videos that non-disabled people see on CNN.com."
The suit aims generally to acquire news, not to alter CNN's speech, he added.
CNN's anti-SLAPP motion would deprive the trial court of the opportunity to determine the reasonableness of that requested accommodation, Paradis said.
McKeown said that, while the requirement to provide closed captioning may "not affect the content, it affects potentially the decision on whether to speak or not to speak."
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