The U.S. Court of Appeals for the Ninth Circuit has issued an opinion and associated order in which it asks the California Supreme Court to answer the remaining overarching question in Greater Los Angeles Agency on Deafness v. CNN: whether the California Disabled Persons Act (DPA) governing places of public accommodation applies to websites as non-physical “places.” The referral is the closing issue in a Ninth Circuit opinion that reverses a district court ruling by holding California’s anti-SLAPP statute applies to GLAD’s suit seeking to compel captions for CNN.com’s news videos, and granting CNN’s motion to strike GLAD’s California Unruh Civil Rights Act claim, leaving only the DPA claim intact.
Along the way to issuing the referral order, the Ninth Circuit covered several points involving the intersection of the DPA with federal constitutional and closed captioning law. These include the constitutionality under the First Amendment of government-imposed requirements to closed-caption content, and whether if imposed at the state level they are preempted by federal law and/or violate the Commerce Clause. The case now turns to the California Supreme Court to see if it will accept the referral, where the issue of the DPA’s potential reach into cyberspace could have far-reaching implications. (Disclosure: DWT will represent CNN before the California Supreme Court if it accepts the referral, and has represented CNN before the Ninth Circuit and in the district court below.)
In GLAD v. CNN, the advocacy group brought suit against the programmer in 2011 under the Unruh Act and DPA to obtain injunctive relief, damages and attorney’s fees, based on the absence of closed captions on news videos posted at CNN.com. CNN responded that it was in the process of preparing in due course to commence online captioning under the then-recently enacted federal 21st Century Communications and Video Accessibility Act (CVAA), which at the time was still in the process of being implemented by the Federal Communications Commission (FCC).
CNN filed a special motion to strike under California’s anti-SLAPP statute to dismiss the case. CNN argued that GLAD’s claims steeped in decisions on whether, when and how to caption online videos, arose from conduct in furtherance of CNN’s exercise of free speech on matters of public concern, and that GLAD could not establish a probability of prevailing on its claims. On the latter point, CNN argued no Unruh Act claim could succeed due to a lack of intentional discrimination by CNN, and that the DPA does not apply to non-physical places like CNN.com. It also argued that application of the Unruh Act and/or DPA to force CNN to caption its online videos before federal rules governing the mater took effect was preempted by federal law and rules, invalid under the Commerce Clause, and at odds with the First Amendment.
The district court denied CNN’s anti-SLAPP motion. It held that CNN’s conduct was not in furtherance of its free speech rights, especially insofar as the court viewed closed captioning as a mechanical transcription that does not implicate content or the First Amendment. Although the court acknowledged CNN’s constitutional right to publish online news videos, it held that CNN’s speech merely “lurked in the background” of GLAD’s suit to compel closed captioning. The court also rejected CNN’s contention that the relief GLAD sought would deprive CNN of editorial control by forcing it to adopt error-prone and costly captioning technology.
Because the court held that the anti-SLAPP statute thus did not apply, it did not reach whether GLAD could prevail under the Unruh Act and/or DPA, or CNN’s challenges to those claims sounding in federal law. CNN appealed, and the Ninth Circuit vacated the decision denying the anti-SLAPP motion.
Ninth Circuit decision
Anti-SLAPP. The appellate court, after observing that there was no dispute whether CNN’s online videos involved matters of public concern, held CNN had shown that GLAD’s claims arise from conduct in furtherance of CNN’s rights to report the news, which do not “merely lurk in the background.” The court accepted CNN.com’s decision to display videos without captions prior to FCC captioning rules, even if not itself an exercise of free speech, as conduct “in furtherance” of free speech rights, especially given CNN’s concerns about potential costs, delay, and inaccuracies if forced to caption prematurely.
The court noted, in reaching this conclusion, that it did not mean to imply that all suits against media organizations, or any action imposing increased costs against them, fall within the anti-SLAPP law, or that the broad construction anti-SLAPP requires triggers its application in any case marginally related to a defendant’s speech. Rather, the court viewed its holding as “more limited,” specifically, that where an action “directly targets the way a content provider chooses to deliver, present, or publish news … , that action is based on conduct in furtherance of free speech rights and must withstand scrutiny under California’s anti-SLAPP statute.”
Unruh Act. Moving on to whether GLAD could establish a probability of success on the merits of its claims, the Ninth Circuit held the Unruh Act claim could not avoid being struck under the anti-SLAPP statute, as GLAD could not show intentional discrimination based on disability as required by California law. Though CNN’s decisions on captioning may affect the deaf and hearing impaired differently than other members of the public, captions were unavailable to all CNN.com visitors equally. There was, accordingly, no willful, affirmative misconduct to support a claim. The court also rejected GLAD’s attempts to have a “deliberate indifference” standard applied in the Unruh Act context, or to proceed based on CNN’s supposed knowing failure to act after GLAD demanded captions.
Disabled Persons Act. With only the DPA claim remaining after the court disposed of GLAD’s Unruh Act claim, it reserved judgment and instead, as noted, asked the California Supreme Court to first opine on what the Ninth Circuit characterized as an “important and unresolved issue of state law” regarding the DPA’s potential reach beyond physical places. This request reflects the extent to which there is no California Supreme Court decision on whether the DPA applies only to physical places of public accommodation, or also covers “non-physical places” like websites.
However, in referring the case, the Ninth Circuit noted CNN’s point that no published appellate decision has interpreted the DPA to apply to a website unrelated to a brick-and-mortar business. It is also worth noting that there is a case holding the DPA inapplicable to administration of a standardized test, separate from consideration of the accessibility of the testing venue. So while there may be scattered lower court dicta that hypothecates that the DPA may apply more broadly, the DPA has thus far only been applied to physical places and to a website connected to a physical space.
This is an important issue with ramifications extending far beyond whether CNN must caption its online news videos (which it now does, under the FCC’s CVAA-based rules and through voluntary efforts above and beyond that). The issue of whether statutes like the DPA, or its federal counterpart, the Americans with Disabilities Act (ADA), applies online, has been taken up by a variety of courts, and is currently the subject of a Department of Justice advanced notice of proposed rulemaking. A decision on this point by the California Supreme Court has the potential to affect far more than whether online streamed video news must be closed-captioned.
Federal Law and Constitutional Issues. The stakes presented by the DPA issue are in some ways heightened by the Ninth Circuit rulings on CNN’s defenses based on constitutional and federal law, which the court reached, and disposed of for anti-SLAPP purposes, in holding that referring the DPA issue to the California Supreme Court was necessary. Though the Ninth Circuit made clear that it decided only for anti-SLAPP purposes that GLAD showed enough for its DPA claim to proceed in the face of constitutional and related challenges, and that CNN can still prevail on those challenges based on facts found at later stages of the case (if reached), the court made several findings worth noting.
On CNN’s challenge that a court order compelling captioning under the DPA (or Unruh Act) would violate the First Amendment, the Ninth Circuit held such a requirement would neither unconstitutionally compel speech, nor act as a prior restraint by keeping CNN.com from posting uncaptioned videos. The court also found such a requirement (if imposed) would be content-neutral, and “at least minimal merit” in GLAD’s showings of a substantial government interest in ensuring equal access to online videos for the hearing impaired, and no undue burden on CNN insofar as compelled captioning would merely require the translation of a video’s audio track.
The Ninth Circuit also held that a requirement that CNN.com caption online news videos based on California’s DPA would not be preempted by federal law. The court held that the closed captioning provisions in the Federal Communications Act, as amended by the CVAA and implemented by FCC regulations, do not occupy the field of closed captioning on the Internet. It further held that, even if federal captioning obligations occupy the field as to TV, the same is not true for online video, as the federal regime covers only full-length programs previously aired on TV, in the U.S., with captions after the effective date of the CVAA rules, and does not govern a variety of online video, including clips from TV, videos unique to websites, and user-generated content. Preemption based on a conflict between state and federal law also is not present, the court held, because it is possible both to comply with the CVAA regulations and to caption online videos not covered by them as GLAD seeks, and because such a requirement poses no obstacle to any federal objective.
On the dormant Commerce Clause, the court held CNN’s challenge similarly could not defeat GLAD’s DPA claim at this stage of the litigation. The court held that there was enough evidence in the record, even if disputed, to suggest a California-only version of CNN.com could be created to avoid directly regulating interstate commerce via the application of the DPA that GLAD seeks. It also held, again, based only on the parties’ initial showings, that the burdens that such a DPA-based captioning duty would impose could be outweighed by California’s interest in ensuring equal access to online news videos.
Conclusion. The Ninth Circuit’s referral of GLAD v. CNN to the California Supreme Court for a determination of whether the DPA applies to online “places” immediately makes the case one to watch, even more so than before. The constitutional and other federal law holdings may well resonate in cases brought under the ADA and/or state laws seeking to compel closed-captions for streamed videos, and to otherwise make websites more accessible.