LEGAL NEWSLINE

SAN FRANCISCO (Legal Newsline) - Three judges of the U.S. Court of Appeals for the Ninth Circuit recently ruled that the plaintiffs in a case against CNN by the Greater Los Angeles Agency on Deafness failed to show intentional discrimination based on disability.

"This appeal-which tests the boundaries of multiple state laws and reveals tensions between California's anti-discrimination law, on one hand, and its anti-SLAPP statute, on the other-boils down to two central questions," according to circuit judges J. Clifford Wallace, M. Margaret McKeown and Sandra S. Ikuta's opinion.

The judges question if California's anti-SLAPP statute, which permits a defendant to pursue early dismissal of meritless lawsuits arising from conduct by the defendant in furtherance of the right of petition or free speech, apply to a lawsuit seeking to secure equal access for the hearing-impaired by compelling Cable News Network to caption videos posted on its website.

"And, if so, has the Greater Los Angeles Agency on Deafness Inc. discharged its burden to show a probability of prevailing on the merits of its claims under California's Unruh Civil Rights Act...and the California Disabled Persons Act," the opinion states.

The magistrate judge answered no to the first question, declined to reach the second, and denied CNN's anti-SLAPP motion, according to the judge's opinion.

CNN timely appealed and consistent with the California legislature's express command to construe the anti-SLAPP statute broadly, the appeals judges held that GLAD's action targets conduct in furtherance of CNN's free speech rights and falls within the scope of the anti-SLAPP statute.

"We also conclude that GLAD has failed to establish a probability of prevailing on its Unruh Act claims," according to the opinion.

The judges state that the final question, whether the DPA applies to websites, is an important question of California law and raises an issue of significant public concern.

"We defer decision on GLAD's DPA claims pending further guidance from the California Supreme Court," the opinion states. "In a companion order published concurrently with this opinion, we certify to the California Supreme Court this remaining dispositive question of state law."

The lawsuit began after GLAD requested that Time Warner caption all of the videos on its news websites, including CNN.com in December 2010, in order to provide hearing-impaired visitors full access to the online videos.

CNN responded that it offered a number of text-based services and explained that CNN would be "ready to provide whatever web access" then-pending federal rulemaking actions regarding the captioning of online videos "ultimately required."

Unable to reach an agreement with CNN over closed captioning, GLAD filed this putative class action in California state court in June 2011, six months before the FCC promulgated the 2012 online captioning rules.

"In its complaint, GLAD alleged that CNN violated the Unruh Act and the DPA by intentionally excluding deaf and hard of hearing visitors from accessing the videos on CNN.com," the opinion states.

For these violations, GLAD requested damages; declaratory relief; fees and costs; and a preliminary and permanent injunction requiring CNN to take steps necessary to ensure that the benefits and advantages offered by CNN.com are fully and equally enjoyable by persons who are deaf or hard of hearing.

The judges decided to vacate the district court's order denying CNN's motion brought under California's anti-SLAPP statute seeking to dismiss a lawsuit that sought to secure equal access for the hearing-impaired by compelling CNN to caption videos posted on its website, the opinion states.

"California's anti-SLAPP statute provides for the early dismissal of meritless lawsuits arising from a defendant's conduct in furtherance of its free speech rights," according to the opinion. "The panel held that plaintiffs' lawsuit targeted conduct in furtherance of CNN's free speech rights and fell within the scope of the anti-SLAPP statute."

The panel further held that the plaintiffs failed to establish a probability of prevailing on its claims under California's Unruh Civil Rights Act because they had not shown intentional discrimination based on disability.

"The panel deferred decision on plaintiffs' claims under California's Disabled Persons Act pending further guidance from the California Supreme Court," the opinion states. "The panel also held that at this juncture, none of CNN's constitutional challenges posed a barrier to plaintiffs' pursuit of its Disabled Persons Act claims."

The plaintiffs were represented by Peter David Blanck; Rachel Elizabeth Brill; Linda Mary Dardarian of Goldstein, Borgen, Dardarian & Ho; Michael S. Nunez, Laurence Wayne Paradis and Mary-Lee Kimber Smith of Disability Rights Advocates; and Jason Holland Tarricone of Community Legal Services in East Palo Alto.

The defendant was represented by Thomas R. Burke; and Janet Lynn Grumer and Ronald G. London of Davis Wright Tremaine LLP.

U.S. Court of Appeals for the Ninth Circuit case number: 12-15807

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.