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Federal judge rejects CNN's anti-SLAPP motion in closed captioning lawsuit

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  1. Libel and Privacy
CNN's decision not to include closed captioning services for its online video content was not First Amendment protected conduct, and…

CNN's decision not to include closed captioning services for its online video content was not First Amendment protected conduct, and because of that the company is not entitled to early dismissal of a lawsuit under California's anti-SLAPP statute, a federal judge has ruled.

The Greater Los Angeles Agency on Deafness (or GLAD) sued the news network on behalf of 100,000 deaf or hard of hearing persons in California, alleging that CNN's failure to provide captioning services for its online videos failed to comply with California laws protecting civil rights and the rights of disabled persons. The court did not rule on the merits of the claim, and was only deciding if the case should be dismissed early.

CNN moved to dismiss the lawsuit as a strategic lawsuit against public participation, or SLAPP. In California, lawsuits "arising" out of conduct "in furtherance" of an individual's rights of petition or free speech are subject to the anti-SLAPP statute. Once a defendant establishes that the lawsuit arises out of their protected conduct, the burden shifts to the plaintiff to show that they are likely to succeed in their lawsuit. If the plaintiff fails to do so, the lawsuit is dismissed.

Larry Paradis, who represents GLAD, said he was "astonished" and "insulted" at CNN's free speech argument. The lawsuit is about increasing access to free speech by allowing deaf persons to access online content, he said.

"This is a major issue to the disabled community," Paradis said. "Disabled people are not second class citizens,"

GLAD's lawsuit is a test case to try and increase access to online content by deaf or hard of hearing persons. None of the major news networks — including Fox and MSNBC — currently caption their online videos, Paradis said.

Magistrate Judge Laurel Beeler rejected CNN's arguments that the lawsuit arose out of constitutionally protected conduct.

CNN advanced two arguments: first, all of its activities as a news media organization were in furtherance of free speech rights; and second, that the specific decision not to provide closed captioning services for its online content was inextricably intertwined with speech, and that because captioning technology can result in errors, the decision not to use it was a protected exercise of CNN's editorial discretion, according to the opinion.

The court disagreed with CNN's arguments, writing that while the news network's publishing of news videos was protected activity, that activity only "lurks in the background" of GLAD's claims. The claim itself was about discrimination, and did not arise out of CNN's protected speech or petition activity, the court wrote.

CNN also argued that because transcription services can result in errors, the decision not to use such services is a protected matter of editorial discretion. The court noted that the parties presented conflicting evidence about the accuracy of transcription services, and that CNN provided no evidence regarding its editorial standards as applied to transcription errors.

The court ruled against CNN on this point as well, citing a decision of the United States Court of Appeals for the D.C. Circuit that held that closed captioning is a "mechanical transcription" that does not implicate content and the First Amendment.

Attorneys for CNN could not be reached for comment. Paradis indicated that he expected the network to appeal the decision of the district court.

Related Reporters Committee resources:

· SLAPP Stick: Fighting frivolous lawsuits against journalists