Federal Appeals Court Victory for Blind Movie Goers

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This is a post about a federal appeals court opinion. The court ruled that audio description is an auxiliary aid and service under the ADA. The ruling will help blind movie goers enjoy movies. Back to post

Great news for visually impaired movie goers! On April 30, 2010, the Ninth Circuit Court of Appeals ruled that audio description is “clearly” an “auxiliary aid and service” under the Americans with Disabilities Act. This ruling revives a federal lawsuit against the Harkins movie theater chain that had been thrown out of court in 2008.

The plaintiffs can now continue their case against the Harkins chain for that company’s failure to provide audio description at its theaters. The appellate court’s ruling also allows the case to go forward on claims brought by deaf and hearing impaired theater-goers for captioning.

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What is Audio Description?

Audio description, also referred to as descriptive narration, provides spoken information about key visual elements in a movie or live performance. The technology that provides audio description allows visually impaired movie patrons to more fully enjoy what is being presented on screen. The audible information is inserted within the natural pauses in movie dialogue and is delivered privately through an ear phone to blind viewers. One of the best way to understand audio description is to experience it. Listen to an audio described and captioned clip of Lion King prepared by the National Center for Accessible Media.

Excerpts from the Opinion

The lawyers for the Harkins movie chain tried to convince the court that providing audio description was not required by the ADA because blind movie goers were not prevented from attending movies without description. The lower court had agreed that providing the technology needed for audio description would require Harkins to provide an “extra” service to blind patrons beyond what the ADA required. The Court soundly rejected this argument.

The district court’s reasoning effectively eliminates the duty of a public accommodation to provide auxiliary aids and services. By its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled. For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing that everyone—including the wheelchair bound—has equal access to the steps. And an office building could not avoid having to put Braille numbering on the buttons in its elevator by arguing that everyone—including the blind—has equal access to the written text. — Ninth Circuit Opinion in State of Arizona v. Harkins

The Court understood that the district court’s ruling would virtually eliminate the “auxiliary aids and services” requirement of the ADA, a core provision mandating a wide range of accessible information and technology.

First, the ADA provides its own definition of “auxiliary aids and services,” which includes “effective methods of making aurally delivered materials available to individuals with hearing impairments[,]” “effective methods of making visually delivered materials available to individuals with visual impairments[,]” and “acquisition or modification of equipment or devices . . . .” 42 U.S.C. § 12103(1). Closed captioning and descriptive narration fall comfortably within the scope of this definition.— Ninth Circuit Opinion in State of Arizona v. Harkins

Movie captioning and audio descriptions clearly are auxiliary aids and services. Captioning and audio descriptions
are “effective methods of making [aurally or visually] delivered materials available to individuals with [hearing and
visual] impairments”.— Ninth Circuit Opinion in State of Arizona v. Harkins

We disagree with Harkins that captioning and descriptive narration fall outside the ADA as a matter of law. As
stated previously Plaintiffs are seeking an auxiliary aid, which is specifically mandated by the ADA to prevent discrimination of the disabled.— Ninth Circuit Opinion in State of Arizona v. Harkins

The Court of Appeals’ opinion demonstrated an understanding of description and captioning, as well as an understanding of the main purpose of a movie theater.

[A] movie theaters’ primary service is to screen films. Thus, captions and descriptive narration are not so removed from a theater’s usual business that they cannot be deemed “subsidiary” or “supplementary.”
— Ninth Circuit Opinion in State of Arizona v. Harkins

Congratulations

Congratulations to the plaintiffs and the legal team behind this important ADA victory. The plaintiff in the case for the audio description issues was Larry Wanger, a member of the American Council of the Blind. Plaintiff on the captioning part of the case was Frederick Lindstrom by and through his legal guardian, Rachel Lindstrom.

The case was filed by the Attorney General’s Office of the State of Arizona and the Arizona Center for Disability Law in Tucson. Rose Daly-Rooney and Cathleen Dooley represented the Attorney General. J.J. Rico was the lawyer for the Arizona Center, the federally-designated Protection and Advocacy System for Arizona.

Several Amicus Briefs were filed with the Court of Appeals. On the audio description issues, Linda Dardarian and Lainey Feingold filed a brief on behalf of the American Council of the Blind, the American Foundation for the Blind, and the American Association of People with Disabilities. Rio Popper, a nine year old girl who is blind and loves movies, also participated as an amicus.

The Screen Actors Guild (SAG) joined the disability groups in urging the Ninth Circuit to reverse the lower court decision. In coalition with the American Federation of Television and Radio Artists (AFTRA) and Actors’ Equity Association (AEA), SAG is part of the tri-union IAMPWD (Inclusion in the Arts and Media of People With Disabilities) a disability rights campaign to improve and promote the accuracy, inclusion and access of people with disabilities in all areas of entertainment and news media.

Finally, thanks are due to the United States Department of Justice, Civil Rights Division, for filing a strong brief in support of both audio description and captioning.

Resources about the Harkins case and Audio Description