Yesterday, the U.S. Court of Appeals for the Ninth Circuit noted CNN’s “protected right to report the news” in reversing a lower court decision that allowed a lawsuit involving CNN’s decision not to caption certain online video to move forward.  While the court acknowledged the import of preserving CNN’s ability to make independent editorial decisions and stated that plaintiffs had offered no evidence of intent by CNN to discriminate, the court deferred ruling on a claim under the state’s disabled persons act.

The case now centers not on the First Amendment, but on the issue of whether websites are places of public accommodation under the California Disabled Person Act (DPA), a question with widespread ramifications.  Of course, the ruling comes at a time when changes to the closed captioning rules are included on the FCC’s February meeting agenda and in the midst of an FCC proceeding concerning online captioning of video clips (when this lawsuit was filed, FCC rules requiring IP captioning of full-length video programming had not yet been issued).  .

The Greater Los Angeles Agency on Deafness (GLAD) brought a class action suit against CNN, claiming the news network was violating California’s Civil Rights Act and California’s DPA by refusing to provide captioning on videos uploaded to its website.  In reaction, CNN invoked California’s anti-SLAPP statute, which provides a means to dismiss a compliant arising from activity exercising free speech or petition rights at an early stage.  In order to prevail, CNN first had to show that the lawsuit targeted conduct in furtherance of its First Amendment rights.

A magistrate judge ruled that CNN hadn’t met this test, stating that 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.”  Thus, the court reasoned, the lack of captions on the website had little to do with free speech.

A three-judge panel of the federal appeals court disagreed, reversing and staying the case so that the state’s Supreme Court can examine whether the anti-discrimination law applies to a “virtual location on the Internet.”  The panel held unanimously that “CNN has made the requisite prima facie showing that GLAD’s actions target an act—declining to caption online news videos—that furthers CNN’s free speech right to report the news.”  In support, the judge cited CNN’s editorial decision to forego captioning when delivering news on its website because of concerns about potential costs, delay, and inaccuracies.  The court said its holding was limited, noting, “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.”

Obviously, that’s not the end of it.  The judge rejected CNN’s threshold arguments that GLAD’s claims are preempted by federal law, preempted by FCC regulations on closed captioning, and impermissible under the First Amendment.  The court dismissed the civil rights claim, saying that there was no evidence CNN intentionally discriminated against hearing-impaired individuals on account of their disability.  The case will focus, therefore, on the DPA and whether websites are “places of public accommodation.”  “Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur,” the panel asked the California Supreme Court to resolve the question of whether non-physical places are “places of public accommodation.”  Stay tuned.

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