Harkins Theatres and the state are on the verge of settling a hard-fought, groundbreaking lawsuit that became the center of a national struggle between theater owners and the hearing and visually impaired.
Judge Roslyn O. Silver of U.S. District Court in Phoenix ruled in 2008 in favor of Harkins, which argued that the Americans with Disabilities Act did not require the theater chain to provide captioning for deaf patrons or equipment that allows blind patrons to hear narrative descriptions of the action on the screen.
Former state Attorney General Terry Goddard appealed the ruling to the 9th U.S. Circuit Court of Appeals, where a long line of interested parties from both sides of the issue, as well as the U.S. Department of Justice, weighed in.
The federal appellate court reinstated the case in April 2010, ruling that the equipment was classified as “auxiliary aids and services” and required under ADA, but that Harkins could still argue in U.S. District Court that complying with the law would create an undue burden.
According to court documents, the state and Harkins have agreed to a settlement in principle and are working on the final language. The document doesn’t reveal any terms of the agreement, but it appears that the movie industry’s transition to digital projection has made the settlement possible.
“I believe they were going to provide captioning to a large part of their theaters because it comes on the digital feed that they get now,” said Rachel Lindstrom, one of the plaintiffs in the case. “They seem to be agreeing to provide captioning, which is what we wanted.”
A Harkins representative and the company’s lawyer did not return calls seeking comment. A spokeswoman for the Attorney General’s Office and a lawyer with the Arizona Center for Disability Law also declined to comment on the case.
John Waldo, a Washington attorney who has won significant concessions and judgments against national theater chains in Washington and California, predicted that captioning and video descriptions will be the norm in movie houses soon in large part due to the 9th Circuit ruling.
Waldo said the Department of Justice also took a position in the Harkins case that has been instrumental in other chains announcing they will provide captioning and video description nationwide as they convert to digital.
Waldo said the department “gave the theaters the ‘option’ of either equipping all their theaters to show captioned movies or face serial litigation in a number of different forums that they were unlikely to win.”
There are different ways to provide captioning.
Open captioning is where the entire audience views the subtitles, but very few movies are released on film with subtitles since it requires each image to be engraved with the lettering. Open captioning can also be achieved by a separate projector that displays the subtitles.
Closed captioning for individuals is also available and it requires a special device that is placed in the cup holder of the seat and special equipment is installed in the back of the auditorium. This type of captioning is only seen by the hearing-impaired movie-goer.
Descriptive narration, where action is described at natural pauses in the dialogue, is available on headsets, but like closed captioning, requires special equipment to be installed.
The movie industry is slowly making the conversion from 35-millimeter film to digital projection. A movie can now be shown by transmitting it electronically to the projector rather than using reels of film run through a projector.
According to an amicus brief filed in the Harkins case by the National Association of Theatre Owners “digital cinema may reduce the cost burden of closed captioning and narrative description” compared to film.
The Association of Theatre Owners tried to discourage the 9th Circuit from ruling in favor of Arizona partly because the association was working on perfecting captioning and narrative description in digital projection and aggressively developing industry standards and requirements for it.
“Any requirement of captioning or narrative description by this Court at this juncture would be a blunt and counterproductive approach, require enormous expenditures for film-based equipment adaptations that will become obsolete in the near future, and divert attention and resources from promising new technologies,” the theatre owners’ amicus brief read.
Goddard said requiring captioning and video description was on the fringe of civil rights discussions and not considered a core right when he brought lawsuits against Harkins and other chains in 2006, but digital technology was emerging and created promise.
He said he was reluctant to file suit when assistant attorneys general brought him the cases because his first impression was that retrofitting theaters would be too costly for them.
“So we had a long session in the office that talked about the emergence of the digital technology and why frankly all we were doing was keeping the civil rights laws current with what was possible,” Goddard said.
Goddard also filed suit against AMC Theatres. The chain settled in March 2009, agreeing to double the number of auditoriums in Arizona equipped with accommodations for blind and deaf patrons over the next 30 months and equip 10 percent of new theaters with digital captioning and narrative description.
Goddard said he doesn’t understand why Harkins, owned by Dan Harkins, fought so hard and long.
“We were surprised. I always admired Harkins greatly. I always thought he was a very public-spirited and community-minded business person, but we got much more out of some of the national chains in terms of this issue than out of the local guy,” Goddard said.
Still hanging out there, though, is a proposed rule by the Department of Justice in 2010 requiring 50 percent of all theaters to have equipment installed over a 5-year period.
Waldo, the Washington attorney who won judgments against national theater chains in Washington and California, said the proposal hasn’t been withdrawn or supplanted, but he doesn’t believe it will be adopted.
“That portion of the rule was widely panned by the disability community,” Waldo said. “Our position was that the appropriate rule is ‘undue burden,’ and that a flat performance standard was unacceptable because it might require too much of some, but would permit others to do far less than they are capable of doing.”