Experiencing The Movies, At What Price?

There was a time when the internet offered a breathtaking opportunity to watch, listen and learn from lectures on a broad array of academic subjects with just a click. But then, the internet doesn’t work the same for everyone, as some people have abilities that others don’t, which means some have disabilities. That’s an unfortunate reality of humanity, and one which we, as humane and caring individuals, should do as much as reasonably possible to ameliorate.

Instead, the government passed a law, and now, those videos are gone.

This has spawned two distinct cottage industries, one to create accommodations for people with disabilities and one to seek out and sue public accommodations that fall short.

The lawsuits came one after the other, against Fordham University, Manhattan College, Long Island University and other area colleges and universities.

In all, eight suits have been filed in federal court in Manhattan over the past two weeks, most recently against Hofstra University on Long Island on Oct. 4. In each case, lawyers for Emanuel Delacruz, who is blind, charged that the college’s website is inaccessible to their plaintiff and therefore in violation of the Americans With Disabilities Act.

The filings are part of a growing number of actions involving accessibility and the internet. The federal law requires that public accommodations be accessible to those with disabilities, and legal battles have long revolved around physical spaces and therefore physical solutions, such as elevators or wheelchair ramps. Now, advocates and lawyers argue, websites are also public spaces and need to be accessible, with things like captions or audio descriptions.

The argument proffered by the disabled is why should they be denied access to things that others are not. The obvious answer is unavailing, since they didn’t ask to be disabled and we, as a society, don’t want to penalize people for reasons such as disability. But laws prohibiting such discrimination are enacted with the best of intentions, evoke strong empathy and seem to reflect a societal concern that most of us embrace.

They are also particularly susceptible to the slippery slope. Notions of reasonableness are superimposed over the mandates at first, so advocates can shrug off claims of absurdity as accommodations spread out and encompass notions that seem ridiculous at the outset.

But as reflected in the Third Circuit’s decision in McGann v. Cinemark, such idealistic laws eventually reach the point of absurdity.

McGann has Usher’s Syndrome Type 1, a sensory disorder. He was born deaf and began losing his sight at age five. He has been completely blind for approximately fifteen years, and he is now considered deaf-blind. There is no single universally accepted method of communication for people who are deaf-blind. McGann generally uses ASL to communicate with others. ASL is a unique language that has its own idioms, grammar, and syntax.

Certainly, McGann is disabled, and deserving of not merely empathy, but accommodation. But how much? At what point does it cross the line into absurdity?

There are numerous methods of ASL tactile interpretation. McGann most commonly uses the hand-over-hand method. The hand-over-hand method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs through touch and movement.

ASL tactile interpretation of a movie includes every possible element of that movie’s content, including visual, aural, and oral components. In addition, because tactile interpretation in almost any venue includes a descriptive component, interpretation of a movie screening will include environmental elements, such as other viewers’ contemporaneous reactions. Given practical limitations, tactile interpreters cannot communicate all elements of a movie verbatim; they must, at times, make judgment calls about what content to skip. But tactile interpretation of a movie does not require any changes to the video or audio content of the movie, the auditorium screens or sound systems, or the physical environment—including the lighting—in or around the theater.

McGann wanted to “see” the movie Gone Girl. His regular theater provided him with a tactile interpreter, but the movie wasn’t playing there. It was playing at a local Cinemark theater, so he asked them to provide him with a tactile interpreter. They refused.

Cinemark had never received a request for tactile interpretation services for a patron who was deaf-blind before McGann’s request. Petengill and Cinemark investigated McGann’s request by contacting the Center for Hearing and Deaf Services (“HDS”), which provided Cinemark with quotes for tactile interpretation services. Rates ranged between $50 and $65 per hour, for a minimum of two hours. Because HDS considered tactile interpretation of Gone Girl a complex assignment, with a duration of over two hours, it would have required two interpreters.

Obviously, the cost to the theater of hiring interpreters far exceeded the ticket price, but then, the ADA makes no distinction based on cost. The district court dismissed the action upon the grounds that this demand was not an “auxiliary” accommodation, using a definition of “auxiliary aids and services” that depended on an extension of primary services, but the Third Circuit reversed.

Entertainment venues, such as concert halls and movie theaters, offer to the public something different than stores offering goods or products for purchase. They offer an entertainment service. As Cinemark acknowledged, customers do not pay these entertainment venues for tickets to sit in an empty auditorium. They pay to experience the entertainment being offered.

The provision of this entertainment service continues after a patron selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, too, does the obligation to  provide auxiliary aids and services.

And so, the provision of a tactile interpreter was required by Title III of the ADA. But there remains a condition, a defense, to the requirement.

As discussed, Title III does not obligate a public accommodation to furnish a requested auxiliary aid or service if doing so would “fundamentally alter the nature of the good, service, facility privilege, advantage, or accommodation being offered” or “would result in an undue burden.” 42 U.S.C. §12182(b)(2)(A)(iii). The public accommodation bears the burden of showing either defense.

While the Circuit remanded on the “undue burden” prong, it held that a tactile interpreter was not a fundamental alteration of the nature of a movie.

Cinemark does not dispute that tactile interpretation of a movie does not require any changes to the video or audio content of the movie, the screens or sound systems that present the movie, or the physical environment—including the lighting—in or around the theater. We thus do not see how it constitutes “a modification that is so significant that it alters the essential nature of the . . . services,”

While the tactile interpreter doesn’t change the movie on the screen, McGann wouldn’t actually see or hear the movie, or experience the theater, but only the tactile interpreter. The use of the interpreter would fundamentally alter the service provided McGann such that the experience of the movie, as intended and expressed by its director and actors, would be subject to an intermediary’s interpretation of it, and transmission to McGann. In other words, he wasn’t going to see Gone Girl no matter what, because he was deaf and blind, and the most he could get is an interpreter’s version of the movie.

The same rationale would apply to an art gallery or museum. A concert. Any experience open to the public, but which required the ability to appreciate the sensation the “service” provided. It’s not McGann’s fault for being disabled, or for wanting to exercise his rights under the ADA. It’s not society’s fault for wanting to do better for the disabled than leaving them isolated and deprived of the experiences around them. But is it absurd for an art gallery to be required to provide an accommodation to a blind person because they can’t see a painting?

35 comments on “Experiencing The Movies, At What Price?

  1. B. McLeod

    He should be equally accommodated whenever he attends any public event where any politician speaks. And he should attend them daily, multiple times daily, if possible. Needless to say, whenever he is present in the courts, or at any session of Congress, they should fix him up too.

    1. SHG Post author

      The HB solution would be for all people to enjoy great movies via tactile interpreter; if one person can’t see or hear, then no one should be more privileged.

    1. the other rob

      Some years ago, when I first learned that audio descriptions of movies was a thing, I wondered whether such a description of a porno would consist in large part of somebody repeating “in, out”, ad nauseum.

      1. SHG Post author

        I had a friend whose family owned a low-rent porn magazine. I kept telling he had to do scratch and sniff, it would be huge. His mother was against it, though, and it never happened.

        1. REvers

          Hustler had a scratch and sniff centerfold back in the seventies. It didn’t really smell much like, you know.

  2. wilbur

    They dredge up BobDole whenever the ADA is publicly celebrated, where BobDole expresses his great pride in it. Yet I’ve never seen BobDole asked about outrageous cases like this. I wonder what BobDole would say? Or if BobDole is even aware of crap like this?

    1. SHG Post author

      Seriously, what difference would it make? When Title III was enacted, nobody talked about tactile interpreters in movie theaters. When Title IX was enacted, nobody talked about rape tribunals on campus. When Title VII was enacted, nobody talked about transgender discrimination. We leap on the slope with warm and fuzzy words, and slide from there. Eventually, we always end up at the bottom.

      1. Lee

        This kind of thing is why gun owners are so wary of any more “reasonable gun control laws.” Sure, it may be reasonable now, but what’s at the bottom of that slippery slope?

        1. SHG Post author

          A common theme here is that these are broad social engineering laws, left to administrative agencies to flesh out through regulatory interpretation. Specific gun control limitations aren’t really the same.

      2. Fubar

        When Title III was enacted,nobody talked about tactile interpreters in movie theaters. … We leap on the slope with warm and fuzzy words, and slide from there. Eventually, we always end up at the bottom.

        We ain’t at the bottom just yet.
        The day will be coming, I bet,
        When Donovan’s Brain
        In class action complains
        And prevails without breaking a sweat!

      3. the other rob

        Perhaps the corollary to Chesterton’s Fence is Greenfield’s Slope?

        “… Then, when you can come back and tell me that you do see every possible way in which your law may be applied beyond the scope that you envision for it, I may allow you to enact it. But I probably won’t. But I might.”

  3. WFG

    The real question, though, is did the Third Circuit make a tactile interpreter available to McGann at oral argument?

  4. PseudonymousKid

    Dear Papa,

    What’s ridiculous is often awesome for the Plaintiff’s bar. The ADA was fee shifting and extremely broad already, but now the Third is trying to make it even wider. If my circuit follows suit, it’ll be raining cash for disabled clients and their attorneys. The ADA was meant to be a powerful tool, and until Congress does anything about it, best we can do is shrug and play ball.

    Best,
    PK

    1. SHG Post author

      In this instance, there’s a good argument that the accommodation requires an alteration of the nature of the service, as McGann doesn’t get to watch a movie, but gets to feel an interpreter’s version of a movie. Is it the same? Close enough? Not the same at all? While the 3d Cir. says it’s good enough, it’s unclear that others, or the Supremes would agree. So there’s hope for a rational limit to mandated accommodations.

      And then there’s the undue burden, but that’s just losing money, which will be made back by increased prices for everyone.

      1. PseudonymousKid

        It’s irrelevant that the auxiliary service would change the way the disabled person experiences a movie. That’s assumed in the definition of “auxiliary services” which includes interpreters specifically. What a movie theater provides is not being changed. Accommodating one person doesn’t mean other customers can’t enjoy the movie or that the theater change any of its day to day operations except for the provision of an interpreter.

        Yes, it’s bad, but the reasoning is sound enough. That a disabled person can’t enjoy things in the same way as those without disabilities is the whole point of the ADA. We all agreed to pay this price so that we could feel the warm and fuzzies for helping the disabled instead of actually helping the disabled.

        Oh well. I’ll just shrug and be on the lookout for disabled clients who like cash. You’d better hope the Supremes save us from this mess.

  5. Pedantic Grammar Police

    Yes, it is absurd. Welcome to the 21st century. I expect that the history books will call this the Age of Absurdity (assuming that there is anyone left who can write).

  6. Kurt

    “Certainly, McGann is disabled, and deserving of not merely empathy, but accommodation. ”

    As a matter of philosophy, just because someone deserves something, doesn’t mean anyone in particular, or general, is obliged to provide it.

    I could go much further with that line of thought, but I think that suffices for now.

    Kurt

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