CNN Closed Captioning Fight Unravels in the 9th

(CN) - Advocates for the deaf improperly targeted CNN's "protected right to report the news" by suing to have the station provide captioning services on its website, the 9th Circuit ruled Wednesday.

The Greater Los Angeles Agency on Deafness (GLAAD) sued CNN in 2011 after failing to convince it to caption its online videos. It alleged violations of California's Unruh Civil Rights Act and the California Disabled Persons Act.

CNN moved to dismiss the claims under California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, which allows for the early dismissal of actions that are designed to interfere with First Amendment rights.

Finding that the news channel's refusal to provide captions on its website had little to do with free speech, U.S. Magistrate Judge Laurel Beeler denied CNN's motion in 2012, after which the network appealed to the 9th Circuit.

A three-judge panel of the federal appeals court reversed on Wednesday, but also stayed the case so the California Supreme Court could weigh in on whether state discrimination law applies to a "virtual location on the Internet."

"Even if GLAAD does not request any changes to the substantive content of CNN's online news videos, GLAAD, by its own admission, seeks to change the way CNN has chosen to report and deliver that news content by imposing a site-wide captioning requirement on CNN.com," Judge M. Margaret McKeown wrote for the unanimous panel. "In doing so, GLAAD targets conduct that advances and assists CNN in exercising its protected right to report the news."

The panel vacated Judge Beeler's denial of CNN's Anti-SLAAP motion and went on to find that GLAAD had failed to establish a probability of success on its Unruh Act claims, which require a showing of intent.

"Notably absent from the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability," the ruling states. "That hearing impaired individuals bore the brunt of CNN's neutral policy is insufficient to support an Unruh Act claim."

The panel could not, however, make such short work of the group's claims under the California Disabled Persons Act (CDA). The appellate judges sought further guidance from the California Supreme Court on the question of whether the law's call for equal access to "places of public accommodation" includes websites.

CNN argues that the DPA does not apply to such virtual locations, while GLAAD contends that, considering the importance of the Internet in contemporary life, CNN.com is a "place" within the meaning of the act.

"Numerous recent cases have discussed the DPA's applicability to virtual spaces like websites, but there is no conclusive California authority on point," the panel stated. "Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur, we respectfully request that the California Supreme Court resolve the issue."

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