CNN Must Defend Lawsuit over Online Captioning
Posted in First Amendment

A California court recently ruled that a lawsuit in which a group representing deaf citizens contended that CNN must provide captioning for videos uploaded to its website may proceed.  The group, The Greater Los Angeles Agency on Deafness, brought suit under the California's Unruh Civil Rights Act and the California Disabled Person's Act.  The court's decision is available here.

CNN responded to the suit by moving to dismiss under California's Anti-SLAPP statute, Section 425.16 of the California Code of Civil Procedure, contending that the claims arise from its newsgathering activities and dissemination of the news, both of which are protected activities under the free speech and free press clauses of the First Amendment to the U.S. Constitution.

The case was filed in federal court in the Northern District of California, and, in a lengthy written decision, the court denied CNN's motion, which means that the plaintiffs' lawsuit may move forward.  The basis for the court's decision was its finding that CNN failed to make a prima facie showing that its refusal to provide captioning for online content is "conduct . . . in furtherance of" its broadcast activities.  That meant the Anti-SLAPP statute did not apply.

The court first rejected CNN's argument that the Anti-SLAPP statute applied because all of CNN's business activities are in furtherance of its broadcast speech.  The court concluded that a categorical rule that all activities by any media defendant would trigger the statute was too broad and exceeded its plain language.  The court then found that the particular conduct at issue here -- CNN's refusal to provide captioning for its online video content -- likewise did not constitute acts in furtherance of speech.  In reaching this conclusion, the court noted that the plaintiffs "do not assert a right to change CNN's broadcast or expressive content or otherwise interfere with CNN's editorial decisions."  Finally, the court rejected CNN's argument that the plaintiffs' claims fell within the scope of the Anti-SLAPP statute because they impacted an editorial decision it made (related to the accuracy of captioning) and would increase its costs.

This case is interesting because it presents a wrinkle to the FCC's captioning rules, which apply to on-air broadcasts but not to internet distribution of content.  Notwithstanding the non-applicability of those rules to the facts of this case, it will be interesting to follow how CNN fares in defending against state statutory civil rights claims.  We will continue to monitor the progress of this case. 

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