Greater Los Angeles Agency on v. Cnn ( 2014 )

CORRECTED 2/10/14
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREATER LOS ANGELES AGENCY ON No. 12-15807
DEAFNESS, INC.; DANIEL JACOB;
EDWARD KELLY; JENNIFER OLSON, D.C. No.
on behalf of themselves and all 3:11-cv-03458-
others similarly situated, LB
Plaintiffs-Appellees,
v. OPINION
CABLE NEWS NETWORK, INC.,
incorrectly sued as Time Warner
Inc.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued March 11, 2013
Submitted December 10, 2013
San Francisco, California
Filed February 5, 2014
Before: J. Clifford Wallace, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown
2 GREATER L.A. AGENCY ON DEAFNESS V. CNN
SUMMARY*
California Law / Anti-SLAPP Statute
The panel vacated the district court’s order denying
CNN’s motion brought under California’s anti-SLAPP
statute, seeking to dismiss a lawsuit that sought to secure
equal access for the hearing-impaired by compelling CNN to
caption videos posted on its website.
California’s anti-SLAPP statute provides for the early
dismissal of meritless lawsuits arising from a defendant’s
conduct in furtherance of its free speech rights. The panel
held that plaintiffs’ lawsuit targeted conduct in furtherance of
CNN’s free speech rights and fell within the scope of the anti-
SLAPP statute. The panel further held that plaintiffs failed to
establish a probability of prevailing on its claims under
California’s Unruh Civil Rights Act because plaintiffs had not
shown intentional discrimination based on disability. The
panel deferred decision on plaintiffs’ claims under
California’s Disabled Persons Act pending further guidance
from the California Supreme Court. The panel also held that
at this juncture, none of CNN’s constitutional challenges
posed a barrier to plaintiffs’ pursuit of its Disabled Persons
Act claims.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GREATER L.A. AGENCY ON DEAFNESS V. CNN 3
COUNSEL
Thomas R. Burke (argued), Rochelle L. Wilcox, Janet L.
Grumer, Jeff Glasser, Davis Wright Tremaine, San Francisco,
California; Ronald London, Davis Wright Tremaine,
Washington, D.C., for Defendant-Appellant.
Laurence W. Paradis (argued), Mary-Lee K. Smith, and
Michael Nunez, Disability Rights Advocates, Berkeley,
California; Linda M. Dardarian and Jason H. Tarricone,
Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland,
California; Peter Blanck, Syracuse, New York, for Plaintiffs-
Appellees.
Karl Olson, Ram, Olson, Cereghino & Kopczynski, San
Francisco, California, for Amici Curiae Los Angeles Times
Communications LLC, McClatchy Newspapers, Inc., Hearst
Corporation, California Newspaper Publishers Association,
and California Broadcasters Association.
John F. Waldo, Portland, Oregon, for Amici Curiae
Washington State Communication Access Project, Oregon
Communication Access Project, Association of Late
Deafened Adults (ALDA), Aloha State (Hawaii) Association
of the Deaf, Arizona Association of the Deaf, California
Association of the Deaf, Nevada Association of the Deaf,
Idaho Association of the Deaf, and Oregon Association of the
Deaf.
Howard A. Rosenblum and Andrew S. Phillips, National
Association of the Deaf, Silver Spring, Maryland; Blake E.
Reid and Angela J. Campbell, Institute for Public
Representation, Georgetown Law, Washington, D.C., for
Amici Curiae Telecommunications for the Deaf and Hard of
4 GREATER L.A. AGENCY ON DEAFNESS V. CNN
Hearing, Inc., National Association of the Deaf, and the
Hearing Loss Association of America.
OPINION
McKEOWN, Circuit Judge:
This appeal—which tests the boundaries of multiple state
laws and reveals tensions between California’s anti-
discrimination law, on one hand, and its anti-SLAPP statute,
on the other—boils down to two central questions: Does
California’s anti-SLAPP statute, Cal. Civ. Proc. Code
§§ 425.16 et seq., which permits a defendant to pursue early
dismissal of meritless lawsuits arising from conduct by the
defendant in furtherance of the right of petition or free
speech, apply to a lawsuit seeking to secure equal access for
the hearing-impaired by compelling Cable News Network,
Inc. (“CNN”) to caption videos posted on its web site? And,
if so, has the Greater Los Angeles Agency on Deafness, Inc.
(“GLAD”) discharged its burden to show a probability of
prevailing on the merits of its claims under California’s
Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (“Unruh
Act”), and the California Disabled Persons Act, Cal. Civ.
Code §§ 54 et seq. (“DPA”)?
The magistrate judge answered no to the first question,
declined to reach the second, and denied CNN’s anti-SLAPP
motion. CNN timely appealed. Consistent with the
California legislature’s express command to construe the anti-
SLAPP statute broadly and our recent precedent, we hold that
GLAD’s action targets conduct in furtherance of CNN’s free
speech rights and falls within the scope of the anti-SLAPP
statute. We also conclude that GLAD has failed to establish
GREATER L.A. AGENCY ON DEAFNESS V. CNN 5
a probability of prevailing on its Unruh Act claims. The final
question, whether the DPA applies to websites, is an
important question of California law and raises an issue of
significant public concern. We defer decision on GLAD’s
DPA claims pending further guidance from the California
Supreme Court. In a companion order published concurrently
with this opinion, we certify to the California Supreme Court
this remaining dispositive question of state law.
BACKGROUND
I. Statutory and Regulatory Framework for Captioning
Captions in media broadcasts come in various shapes and
sizes. They can identify content, speakers, sound effects,
music, and emotions and may be either open or closed.
“Closed” captions, unlike their “open” counterparts, are
activated by the viewer and can be turned on and off. Closed
Captioning of Video Programming, 23 FCC Rcd. 16674,
16675 (2008) (declaratory ruling, order, and notice of
proposed rulemaking). In the online context, closed
captioning is defined as “[t]he visual display of the audio
portion of video programming.”1 Closed Captioning of Video
Programming Delivered Using Internet Protocol, 47 C.F.R.
§ 79.4(a)(6) (2012). Such closed captioning—which GLAD
seeks in its action—“provides access to individuals who are
deaf or hard of hearing.” Closed Captioning of Internet
Protocol-Delivered Video Programming: Implementation of
the Twenty-First Century Communications & Video
1
“Video programming” is defined as “[p]rogramming provided by, or
generally considered comparable to programming provided by, a
television broadcast station, but not including consumer-generated media.”
47 C.F.R. § 79.4(a)(1).
6 GREATER L.A. AGENCY ON DEAFNESS V. CNN
Accessibility Act of 2010, 77 Fed. Reg. 19480-01, 19480
(Mar. 30, 2012) (to be codified at 47 C.F.R. pts. 15, 79) (final
rule).
To secure better access to video programming for the
hearing-impaired, Congress passed the Telecommunications
Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (the
“1996 Act”) (codified as amended at 47 U.S.C. § 613). The
1996 Act directed the Federal Communications Commission
(“FCC”) to impose a closed captioning requirement for video
programming broadcasted on television. Id. In line with this
congressional directive, the FCC adopted rules and
implementation schedules for closed captioning of television
programming. See Closed Captioning & Video Description
of Video Programming, 13 FCC Rcd. 3272, 3273 (1997)
(report and order).
In 2010, in response to the growing presence of video
programming on the Internet, Congress enacted the Twenty-
First Century Communications and Video Accessibility Act
(“CVAA”), Pub. L. No. 111-260, 124 Stat. 2751 (2010)
(codified at 47 U.S.C. § 613). The CVAA amended the 1996
Act and directed the FCC to revise its regulations to require
closed captioning of certain online video programming. See
47 U.S.C. § 613(c)(2). In January 2012, during the pendency
of this appeal, the FCC promulgated its online captioning
rules, which took effect on March 30, 2012. See Closed
Captioning of Internet Protocol-Delivered Video
Programming, 77 Fed. Reg. at 19480–81. The FCC’s 2012
captioning rules require closed captioning of “full-length
video programming delivered using Internet protocol . . . if
the programming is published or exhibited on television in
the United States with captions.” 47 C.F.R. § 79.4(b). Under
the 2012 captioning rules, online video clips—defined as
GREATER L.A. AGENCY ON DEAFNESS V. CNN 7
“[e]xcerpts of full-length video programming,” id.§ 79.4(a)(12)—are excluded from the online captioning
requirement, see id. §§ 79.4(a)(2), (b). The 1996 Act, as
amended by the CVAA, and the FCC’s 2012 captioning rules
do not authorize a private right of action to enforce alleged
violations of the online captioning requirement and instead
provide that the FCC “shall have exclusive jurisdiction with
respect to any complaint” alleging such violations. 47 U.S.C.
§ 613(j); 47 C.F.R. § 79.4(f).
II. GLAD’s Lawsuit
CNN is a wholly owned subsidiary of Turner
Broadcasting System, Inc., which “is ultimately wholly
owned by Time Warner Inc.” CNN operates CNN.com, a
publicly accessible web site containing online news videos.
Most of these online videos are short video clips that excerpt
programming previously broadcasted on television by CNN;
some of the videos are shown exclusively on CNN.com.
Approximately 100 to 120 video clips are posted on
CNN.com every day, and the site features a searchable web
archive of thousands of news videos. Although text articles
accompany some of these online videos, none of them had
closed captions at the time GLAD brought this action.
In December 2010, GLAD requested that Time Warner
Inc. (“Time Warner”) caption all of the videos on its news
web sites, including CNN.com, to provide hearing-impaired
visitors full access to the online videos. CNN responded that
it offered a number of text-based services and explained that
CNN would be “ready to provide whatever web access” then-
pending federal rulemaking actions regarding the captioning
of online videos “ultimately required.”
8 GREATER L.A. AGENCY ON DEAFNESS V. CNN
Unable to reach an agreement with CNN over closed
captioning, GLAD filed this putative class action in
California state court in June 2011, six months before the
FCC promulgated the 2012 online captioning rules. In its
Complaint, GLAD alleged that CNN2 violated the Unruh Act
and the DPA by intentionally excluding deaf and hard of
hearing visitors from accessing the videos on CNN.com. For
these violations, GLAD requests damages, declaratory relief,
fees and costs, and a preliminary and permanent injunction
“requiring [CNN] to take steps necessary to ensure that the
benefits and advantages offered by CNN.com are fully and
equally enjoyable to persons who are deaf or have hearing
loss in California.”3
CNN removed this action to federal court, and the parties
consented to jurisdiction before a magistrate judge. CNN
filed a motion to strike under California’s anti-SLAPP law,
arguing that GLAD’s Unruh Act and DPA claims arose from
conduct in furtherance of CNN’s free speech rights and that
GLAD had failed to establish a probability of prevailing on
its claims. The magistrate judge denied CNN’s anti-SLAPP
motion on the ground that CNN’s conduct was not in
2
Although GLAD initially named Time Warner as defendant in the
complaint, the parties stipulated that CNN would be substituted for Time
Warner.
3
Because GLAD requests closed captioning for all current and future
videos posted on CNN.com, including video clips and other programming
that fall outside the scope of the FCC’s 2012 online captioning rules, see
47 C.F.R. § 79.4 (requiring closed captioning only for full-length videos
initially broadcasted with captions in the United States after certain dates),
this appeal is not moot, Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)
(“[A] case becomes moot only when it is impossible for a court to grant
any effectual relief whatever to the prevailing party.” (internal quotation
marks omitted)).
GREATER L.A. AGENCY ON DEAFNESS V. CNN 9
furtherance of its free speech rights. Although
acknowledging CNN’s constitutionally protected right to
publish online news videos, the magistrate judge found that
CNN’s speech merely “lurk[ed] in the background” of
GLAD’s action. The magistrate judge also rejected CNN’s
contention that GLAD’s requested closed captioning
requirement would deprive CNN of editorial control by
forcing it to adopt an error-prone and costly technology.
Relying on the D.C. Circuit’s dicta in Motion Picture
Association of America, Inc. v. FCC, 309 F.3d 796, 803 (D.C.
Cir. 2002) (“MPAA”), the magistrate judge observed that
“closed captioning is mechanical transcription that does not
implicate content and the First Amendment.”
ANALYSIS
California’s anti-SLAPP statute, enacted in 1992,
provides “for the early dismissal of unmeritorious claims
filed to interfere with the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances.” Club Members for an Honest Election v. Sierra
Club, 196 P.3d 1094, 1098 (Cal. 2008). In 1997, the
California legislature amended the anti-SLAPP statute to state
explicitly that the statute “shall be construed broadly.” Cal.
Civ. Proc. Code § 425.16(a) (as amended by Stats. 1997, ch.
271, § 1). Consonant with this legislative directive, the
California Supreme Court has interpreted the anti-SLAPP
statute broadly, cautioning that a narrow construction “would
serve Californians poorly.” E.g., Briggs v. Eden Council for
Hope & Opportunity, 19 Cal. 4th 1106, 1120–22 (1999).
Taking our cue from the California legislature and courts, we
have followed suit. See, e.g., Manufactured Home Comtys.
v. Cnty. of San Diego, 655 F.3d 1171, 1176 (9th Cir. 2011)
(“The legislature instructed courts that the statute shall be
10 GREATER L.A. AGENCY ON DEAFNESS V. CNN
construed broadly.” (internal quotation marks omitted));
Hilton v. Hallmark Cards, 599 F.3d 894, 906 (9th Cir. 2010)
(amended opinion) (collecting cases); Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (same).
In determining whether GLAD’s action must be stricken
under the broadly construed anti-SLAPP statute, we engage
in a two-step inquiry. See, e.g., Navellier v. Sletten, 29 Cal.
4th 82, 88 (2002). First, we must determine whether CNN
has made a prima facie showing that GLAD’s action arises
from conduct in furtherance of the exercise of CNN’s
constitutional right of petition or free speech in connection
with an issue of public interest. See id. If CNN satisfies this
threshold showing, the burden then shifts to GLAD at the
second step to establish, by competent evidence, a probability
that it will prevail on its Unruh Act and DPA claims. See id.;
see also Cal. Civ. Proc. Code § 425.16(b)(1). In evaluating
CNN’s anti-SLAPP motion, we consider “the pleadings, and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” Cal. Civ. Proc. Code
§ 425.16(b)(2).
I. Anti-SLAPP Step One: Act in Furtherance of Free
Speech Rights
At the first step of the anti-SLAPP analysis, we ask
whether GLAD’s state law claims are based on conduct in
furtherance of CNN’s right of free speech in connection with
a matter of public interest. See City of Cotati v. Cashman,
29 Cal. 4th 69, 78 (2002); Martinez v. Metabolife Int’l, Inc.,
113 Cal. App. 4th 181, 188 (2003) (“[I]t is the principal
thrust or gravamen of the plaintiff’s cause of action that
determines whether the anti-SLAPP statute applies . . . .”
(citation omitted)). California courts “have interpreted this
GREATER L.A. AGENCY ON DEAFNESS V. CNN 11
piece of the defendant’s threshold showing rather loosely,”
Hilton, 599 F.3d at 904, and have held that “a court must
generally presume the validity of the claimed constitutional
right in the first step of the anti-SLAPP analysis, and then
permit the parties to address the issue in the second step of
the analysis, if necessary,” City of Los Angeles v. Animal Def.
League, 135 Cal. App. 4th 606, 621 (2006) (internal
quotation marks omitted).
GLAD does not, and cannot, dispute that CNN’s speech
relates to a matter of public interest or that CNN has a
protected free speech right to report the news. See Lieberman
v. KCOP Television, Inc., 110 Cal. App. 4th 156, 165–66
(2003). The issue we must decide is whether GLAD’s action
takes aim at an act that furthers CNN’s free speech rights.
“An act is in furtherance of the right of free speech if the act
helps to advance that right or assists in the exercise of that
right.” Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133,
143 (2011). This is a classic case where framing the issue
influences the outcome of the determination. Adhering to the
California legislature’s mandate to construe the anti-SLAPP
statute broadly, we conclude that CNN has made a prima
facie showing that GLAD’s claims arise from CNN’s conduct
in furtherance of its right to report the news.
Our recent decision in Doe v. Gangland Productions, Inc.,
730 F.3d 946 (9th Cir. 2013) leads to this result. In
Gangland, the plaintiff sued two production companies for
broadcasting a television documentary without concealing his
identity. Id. at 951–52. The production companies filed a
motion to strike under California’s anti-SLAPP statute, and
the district court denied the motion on the ground that the
production companies’ conduct was not in furtherance of
their free speech rights because the television broadcast
12 GREATER L.A. AGENCY ON DEAFNESS V. CNN
merely lurked in the background of the plaintiff’s tort claims.
Id. at 952–55. We reversed in part because the production
companies satisfied their threshold burden at the first step of
the anti-SLAPP inquiry. Id. at 953–55. We reasoned that the
plaintiff’s claims were based on the companies’ pre-broadcast
interviews, which were in furtherance of their right of free
speech. Id. at 953–54. We also explained that the plaintiff’s
action arose “directly from Defendants’ act of broadcasting
Gangland” and that “[b]ut for the broadcast and Defendants’
actions in connection with that broadcast, Plaintiff would
have no reason to sue Defendants.” Id. at 955.
Although Gangland involved a lawsuit challenging a pre-
publication interview, its rationale has equal force here. As
in Gangland, GLAD’s action arises directly from CNN’s
decision to publish and its publication of online news videos
without closed captions and seeks an injunction that would
require CNN to adopt such captions for every video on its
web site. Like the plaintiff in Gangland, GLAD would have
no reason to sue CNN absent the news videos on CNN.com.
Indeed, GLAD acknowledges in its Complaint that CNN
“goes to great effort to create and offer visitors to CNN.com
video content precisely because many visitors prefer to
experience the combined visual and audible content of a
video” and asserts that CNN has “intentionally presented the
video content on CNN.com in a way” that is inaccessible to
hearing-impaired individuals. Under the FCC’s 2012 online
captioning rules, CNN is required to caption only the full-
length videos initially broadcast on television. 47 C.F.R.
§ 79.4(b). But CNN’s web site includes many broadcasts and
clips that are not part of the television broadcast. As CNN
explains, many of the videos on CNN.com are shorter video
clips, and some of its news videos are shown exclusively on
CNN.com. The web site contains far broader content than
GREATER L.A. AGENCY ON DEAFNESS V. CNN 13
CNN’s television broadcast, and CNN makes affirmative
decisions about what content to post on its web site and how
that content is displayed. The decision to forego captioning
is part of this editorial discretion and furthers CNN’s free
speech right to report the news.
Even if GLAD does not request any changes to the
substantive content of CNN’s online news videos, GLAD, by
its own admission, seeks to change the way CNN has chosen
to report and deliver that news content by imposing a site-
wide captioning requirement on CNN.com. In doing so,
GLAD targets conduct that advances and assists CNN in
exercising its protected right to report the news. See Hunter
v. CBS Broad., Inc., 165 Cal. Rptr. 3d 123, 130–33 (Cal. Ct.
App. 2013) (holding that a lawsuit arising from broadcasting
company’s allegedly discriminatory selection of a news
anchor targeted conduct in furtherance of company’s free
speech rights); cf. Rivera v. First Databank, Inc., 187 Cal.
App. 4th 709, 715–17 (2010) (holding that lawsuit targeting
“confusing language and format of [a] monograph” fell
within scope of anti-SLAPP law); Kronemyer v. Internet
Movie Data Base, Inc., 150 Cal. App. 4th 941, 944, 947
(2007) (holding that the defendant’s refusal to list plaintiff’s
name in credits was an act in furtherance of the defendant’s
free speech right not to speak). CNN’s free speech rights do
not merely lurk in the background of this case.
Attempting to elude the scope of the anti-SLAPP statute,
GLAD attempts to frame its action as targeting CNN’s
“refusal to caption its online videos” rather than “CNN’s
presentation and publication of the news.” In GLAD’s view,
its action demands nothing more than the neutral application
of California’s anti-discrimination laws to “CNN’s
14 GREATER L.A. AGENCY ON DEAFNESS V. CNN
mechanical delivery process for its online news videos”
without regard to the substantive content of those videos.
In support of its argument, GLAD relies on two D.C.
Circuit cases and an FCC order. See MPAA, 309 F.3d at 803(distinguishing captioning from regulations that were “related
to [a] program’s content” and noting that unlike creative
works, “closed captioning is a straight translation of dialogue
into text” (internal quotation marks omitted)); Gottfried v.
FCC, 655 F.2d 297, 311 n.54 (D.C. Cir. 1981) (“A captioning
requirement would not significantly interfere with program
content.”), rev’d on other grounds, Cmty. Television of So.
Cal. v. Gottfried, 459 U.S. 498 (1983); Implementation of
Video Description of Video Programming, 15 FCC Rcd.
15230, 15255 (2000) (noting that, in Gottfried, the D.C.
Circuit concluded “that any requirement to provide
programming with closed captioning would not violate the
First Amendment”), modified, 16 FCC Rcd. 1251 (Jan. 18,
2001).
The D.C. Circuit cases and FCC order address whether a
captioning requirement would violate the First Amendment,
a question more appropriately reserved in this case for the
second step. The California legislature “did not intend that in
order to invoke the special motion to strike the defendant
must first establish [his or] her actions are constitutionally
protected under the First Amendment as a matter of law.”
Governor Gray Davis Comm. v. Am. Taxpayers Alliance, 102
Cal. App. 4th 449, 458 (2002) (alterations in original)
(internal quotation marks omitted). The question at the first
step is a different one: namely, whether GLAD’s action is
based on conduct in furtherance of CNN’s free speech. Even
if we accept GLAD’s narrow view that its action targets
CNN’s refusal to adopt closed captioning as opposed to
GREATER L.A. AGENCY ON DEAFNESS V. CNN 15
CNN’s presentation of the news, our conclusion would
remain the same: CNN’s decision to display videos on
CNN.com without closed captioning prior to the FCC’s
online captioning rules—even if not itself an exercise of free
speech—constitutes conduct in furtherance of CNN’s
protected right to report the news.
Motivated by concerns about the potential costs, delay,
and inaccuracies caused by captioning, CNN made the
editorial decision to forego captioning when delivering and
reporting the news on its web site. Although GLAD presents
conflicting evidence as to the putative expense and
inaccuracies imposed by closed captioning, that evidence,
even if fully credited, does not alter our view that CNN has
made the requisite prima facie showing that GLAD’s action
targets an act—declining to caption online news videos—that
furthers CNN’s free speech right to report the news. GLAD’s
evidence is instead more relevant to the question of the
relative burden imposed by the captioning requirement for
purposes of the First Amendment inquiry, which we address
at step two of the anti-SLAPP inquiry.
In concluding that CNN’s conduct is in furtherance of its
free speech rights on a matter of public interest, we do not
imply that every action against a media organization or any
action imposing increased costs against such an organization
falls within the scope of California’s anti-SLAPP statute. Nor
do we suggest that the broad construction of the anti-SLAPP
statute triggers its application in any case marginally related
to a defendant’s exercise of free speech. We adopt instead a
much more limited holding: where, as here, an action directly
targets the way a content provider chooses to deliver, present,
or publish news content on matters of public interest, that
action is based on conduct in furtherance of free speech rights
16 GREATER L.A. AGENCY ON DEAFNESS V. CNN
and must withstand scrutiny under California’s anti-SLAPP
statute.
II. Anti-SLAPP Step Two: Probability of Prevailing on
Merits
Because CNN has made the threshold showing at step one
of the anti-SLAPP analysis, we next determine whether
GLAD has demonstrated a probability of prevailing on the
merits of its Unruh Act and DPA claims. Although the
magistrate judge did not reach the second step of the analysis,
at the parties’ urging and in the spirit of judicial economy, we
exercise our discretion to decide this legal issue in the first
instance. See, e.g., Wallace v. McCubbin, 196 Cal. App. 4th
1169, 1195 (2011) (“[W]e have discretion to decide the
[second anti-SLAPP] issue ourselves, since it is subject to
independent review.”). To satisfy its burden under the second
step, GLAD must demonstrate that its claims have “only a
minimum level of legal sufficiency and triability.” Soukup v.
Law Offices of Herbert Hafif, 139 P.3d 30, 51 (Cal. 2006)
(internal quotation marks omitted). In determining whether
GLAD has satisfied this low burden, we “neither ‘weigh
credibility [nor] compare the weight of the evidence. Rather,
[we] accept as true the evidence favorable to the plaintiff . . . .
and evaluate the defendant’s evidence only to determine if it
has defeated that submitted by the plaintiff as a matter of
law.’” Id. at 36 n.3 (alterations in original) (citation omitted).
A. Unruh Act Claims
GLAD has failed to establish a probability of success on
the merits of its Unruh Act claims because it has not shown
intentional discrimination based on disability as required
under California law.
GREATER L.A. AGENCY ON DEAFNESS V. CNN 17
The Unruh Act provides that “[a]ll persons within the
jurisdiction of [California] are free and equal, and no matter
what their . . . disability [or] medical condition . . . are
entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments
of every kind whatsoever.” Cal. Civ. Code § 51(b). By its
terms, the Unruh Act “does not extend to practices and
policies that apply equally to all persons.” Turner v. Ass’n of
Am. Med. Colls., 167 Cal. App. 4th 1401, 1408 (2008) (citing
Cal. Civ. Code § 51(c)). Thus, to establish a violation of the
Unruh Act independent of a claim under the Americans with
Disabilities Act (“ADA”), GLAD must “plead and prove
intentional discrimination in public accommodations in
violation of the terms of the Act.” Munson v. Del Taco, Inc.,
208 P.3d 623, 627 (Cal. 2009) (internal quotation marks
omitted). The California Supreme Court has clarified that the
Unruh Act contemplates “willful, affirmative misconduct on
the part of those who violate the Act” and that a plaintiff must
therefore allege, and show, more than the disparate impact of
a facially neutral policy. Koebke v. Bernardo Heights
Country Club, 115 P.3d 1212, 1228–29 (Cal. 2005) (internal
quotation marks omitted); Harris v. Capital Growth Investors
XIV, 805 P.2d 873, 893 (Cal. 1991), superseded by statute on
other grounds as explained in Munson, 208 P.3d at 627–30;
see also Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017,
1024–25 (N.D. Cal. 2012); Young v. Facebook, Inc., 790 F.
Supp. 2d 1110, 1116 (N.D. Cal. 2011).
The California Court of Appeal’s reasoning in Belton v.
Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224(2007) is instructive. There, the plaintiffs, who were legally
blind, alleged that Comcast violated the Unruh Act by
packaging music services with television programming
without an option for consumers, particularly blind
18 GREATER L.A. AGENCY ON DEAFNESS V. CNN
individuals, to buy the music service alone. Id. at 1229–30,
1237. Rejecting the plaintiffs’ Unruh Act claims, the court
explained that Comcast’s practice of packaging and selling its
products “applied equally to sighted and blind subscribers”
because both groups were required to purchase services under
the same policy. Id. at 1237. The court thus concluded that
Comcast’s policy, which was neutral on its face, was not
actionable despite the alleged disproportionate impact on
blind people. Id. at 1237–39.
Here, GLAD has similarly failed to establish the
intentional discrimination needed to sustain an Unruh Act
claim. At the time GLAD initiated this action, CNN did not
offer closed captioning on any news video displayed on
CNN.com. As such, its policy of displaying online video
programming without closed captioning applied equally to all
CNN.com visitors, hearing-impaired or not. Such conduct
does not demonstrate CNN’s “willful, affirmative
misconduct” or intentional discrimination and, therefore, it
cannot form the basis of an Unruh Act violation. Koebke,
115 P.3d at 1227–28 (internal quotation marks omitted); see
also Cullen, 880 F. Supp. 2d at 1024–25 (holding that
plaintiff failed to state an Unruh Act claim by alleging that
Netflix failed to “caption a meaningful amount of its
streaming library” because such conduct was not “willful,
affirmative misconduct”); Young, 790 F. Supp. 2d at 1114,
1116 (holding that plaintiff failed to state an Unruh Act claim
by alleging that Facebook’s customer service system was
difficult for her to use due to her bipolar disorder because
Facebook’s customer service system treated “all users in the
same cold, automated way”).
Although GLAD’s Complaint asserts that CNN
intentionally excluded deaf and hard of hearing individuals
GREATER L.A. AGENCY ON DEAFNESS V. CNN 19
from accessing CNN.com, these allegations fail to establish
even a minimal showing of intentional discrimination and are
belied by the record. In response to GLAD’s captioning
request, CNN stated that it offered a number of text-based
services and explained that it would be “ready to provide
whatever web access is ultimately required” by the FCC’s
then-pending captioning rules. Notably absent from the
record is any evidence supporting an inference that CNN
intentionally discriminated against hearing-impaired
individuals on account of their disability. That hearing-
impaired individuals bore the brunt of CNN’s neutral policy
is insufficient to support an Unruh Act claim. See Koebke,
115 P.3d at 1227–29.4
GLAD’s reliance on Hankins v. El Torito Restaurants,
Inc., 63 Cal. App. 4th 510 (1998) is misplaced. As an initial
matter, Hankins does nothing to alter the California Supreme
Court’s clear statement in both Harris and Koebke that the
Unruh Act requires a showing of willful, affirmative
misconduct to establish intentional discrimination, a showing
that GLAD simply cannot make on this record. Furthermore,
unlike in Hankins, where the defendant restaurant denied
4
In Koebke, the California Supreme Court “acknowledged that evidence
of disparate impact could be admitted in Unruh Civil Rights Act cases
because such evidence may be probative of intentional discrimination in
some cases . . . .” 115 P.3d at 1229 (internal quotation marks omitted).
GLAD offers no evidence or argument that the disparate impact against
hearing-impaired individuals is probative of CNN’s intentional
discrimination against the deaf and hard of hearing. Nor does GLAD
adequately address, much less rebut, CNN’s evidence that, even before
this action, “CNN has been an active participant with the FCC in
developing standards for closed captioning of IP video, and has [had]
every intention of complying with” the FCC’s now-implemented 2012
online captioning rules.
20 GREATER L.A. AGENCY ON DEAFNESS V. CNN
physically handicapped patrons access to a restroom that was
otherwise available, GLAD seeks a service—closed
captioning for online videos—that is denied to all visitors of
CNN.com on a neutral basis. See id. at 518 (holding that
restaurant intentionally discriminated where “a combination
of [the restaurant’s] policy and the physical layout of its
premises allowed patrons who were not physically
handicapped to use a restroom . . . but denied that same
service to physically handicapped patrons even though there
was a restroom on the premises . . . that a physically disabled
person could otherwise use” (emphasis added)). CNN does
not intentionally withhold from the hearing-impaired
captioned videos that are otherwise available.
Equally unconvincing is GLAD’s misguided effort to
import the “deliberate indifference” standard into the Unruh
Act context. Seizing upon a lone parenthetical in Green v.
San Diego Unified School District, 226 F. App’x 677 (9th
Cir. 2007), one of our unpublished, nonprecedential
dispositions, and other inapposite cases, GLAD urges that
“intentional discrimination under the Unruh Act consists of
knowledge that a protected right is substantially likely to be
infringed upon, and a failure to act upon that knowledge –
‘deliberate indifference.’” We decline to adopt the deliberate
indifference standard in light of the California Supreme
Court’s statement that a showing of intentional discrimination
under the Unruh Act contemplates “willful, affirmative
misconduct.” Koebke, 115 P.3d at 1228 (emphasis added)
(internal quotation marks omitted). We further reject
GLAD’s unsubstantiated claim that CNN failed to act upon
knowledge that the protected rights of the deaf and hard of
hearing would be violated absent closed captioning of
CNN.com videos. Consequently, GLAD’s Unruh Act claims
GREATER L.A. AGENCY ON DEAFNESS V. CNN 21
lack even the minimal merit necessary to withstand CNN’s
anti-SLAPP challenge.
B. DPA Claims: CNN’s Constitutional Arguments
CNN also attacks GLAD’s state law claims on
constitutional grounds, arguing that GLAD’s claims and
requested relief are preempted by federal law, violate CNN’s
free speech rights, and run afoul of the dormant Commerce
Clause. Typically, we would not reach these constitutional
issues if the case could be resolved on other grounds. United
States v. Sandoval–Lopez, 122 F.3d 797, 802 n.9 (9th Cir.
1997); see also Lee v. Walters, 433 F.3d 672, 677 (9th Cir.
2005) (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.”
(internal quotation marks omitted)). Because we are
certifying the DPA claims to the California Supreme Court,
it is appropriate to address CNN’s constitutional arguments
as to those claims to assure the California Supreme Court that
certification is both necessary and dispositive of this appeal.
At this juncture, none of CNN’s constitutional challenges
pose a barrier to GLAD’s pursuit of its DPA claims. We
reiterate, however, that we decide only whether GLAD has
demonstrated a “probability” that its DPA claims will prevail.
Soukup, 139 P.3d at 50–51. This requires only that the claims
be “legally sufficient and supported by a sufficient prima
facie showing of facts to sustain a favorable judgment if the
evidence submitted by [GLAD] is credited.” Id. at 51(internal quotation marks omitted). Even if GLAD’s DPA
claims have the requisite “minimal merit” to survive CNN’s
anti-SLAPP challenge, GLAD must still prove its claims with
competent evidence in the district court. See id.22 GREATER L.A. AGENCY ON DEAFNESS V. CNN
Accordingly, CNN could still prevail on those of its
constitutional arguments that depend upon issues of fact at a
later stage of the case. See Cal. Civ. Proc. Code
§ 425.16(b)(3) (“If the court determines that the plaintiff has
established a probability that he or she will prevail on the
claim, neither that determination nor the fact of that
determination shall be admissible in evidence at any later
stage of the case, or in any subsequent action, and no burden
of proof or degree of proof otherwise applicable shall be
affected by that determination in any later stage of the case or
in any subsequent proceeding.”).
1. Preemption
We first address whether federal law preempts GLAD’s
DPA claims under the related doctrines of field preemption
and conflict preemption. In analyzing preemption claims, we
ordinarily “assume that the historic police powers of the
States are not superseded unless that was the clear and
manifest purpose of Congress.” Arizona v. United States,
132 S. Ct. 2492, 2501 (2012) (internal quotation marks
omitted). CNN maintains that the presumption against
preemption does not apply because there has been a history
of significant federal regulation of closed captioning. See
Ting v. AT&T, 319 F.3d 1126, 1136 (9th Cir. 2003). We need
not pass on this preliminary question because even without
this presumption, GLAD has shown that, based on the
evidence before us, its DPA claims have the minimal merit
needed to withstand CNN’s preemption challenges.
a. Field Preemption
Under the doctrine of field preemption, “the States are
precluded from regulating conduct in a field that Congress,
GREATER L.A. AGENCY ON DEAFNESS V. CNN 23
acting within its proper authority, has determined must be
regulated by its exclusive governance.” Arizona, 132 S. Ct.
at 2501. Field preemption “can be inferred either where there
is a regulatory framework ‘so pervasive . . . that Congress left
no room for the States to supplement it’ or where the ‘federal
interest [is] so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same
subject.’” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023
(9th Cir. 2013) (alteration in original) (quoting Arizona,
132 S. Ct. at 2501). The 1996 Act, as amended by the
CVAA, and the FCC’s implementing regulations do not
occupy the legislative field of closed captioning of videos on
the Internet.
For one, the 1996 Act, which dealt with closed captioning
of television programming, expressly provides that the act
“shall not be construed to modify, impair, or supersede
Federal, State, or local law unless expressly so provided.”
1996 Act, Title VI, § 601(c)(1) (reprinted in 47 U.S.C. § 152,
historical and statutory notes). This savings clause—which
Congress left intact when it passed the CVAA—signifies that
Congress did not intend to occupy the entire legislative field
of closed captioning or to prohibit all private rights of action
under state law, including the DPA.
Even if the 1996 Act evinced Congress’s intent to
preempt the field of closed captioning for television
programming, the CVAA and the FCC’s 2012 online
captioning rules left ample room for state laws to supplement
the federal regulatory scheme for online Internet closed
captioning. Limited in its scope, the CVAA instructed the
FCC to impose an online captioning requirement on a discrete
subset of online video programming: namely, full-length
video programming broadcasted on television with captions
24 GREATER L.A. AGENCY ON DEAFNESS V. CNN
in the United States after the effective date of the FCC’s
regulations. See 47 U.S.C. § 613(c)(2)(A). Complying with
this circumscribed directive, the FCC promulgated online
captioning rules that were also limited in scope. See Closed
Captioning of Internet Protocol-Delivered Video
Programming, 77 Fed. Reg. at 19489 (“We interpret Section
202(b) [of the CVAA] to cover any programming delivered
to consumers using [internet protocol], provided that the
programming was published or exhibited on television with
captions after the effective date of the regulations.”). Neither
the CVAA nor the FCC regulations regulate shorter online
video clips, full-length videos that were not shown on
American television, or videos shown before the effective
date of the FCC’s online captioning rules.
We decline CNN’s invitation to interpret the limited
scope of the federal captioning scheme for online videos as
indicative of Congress’s intent to preclude broader regulation
of online closed captioning under state law. In Sprietsma v.
Mercury Marine, 537 U.S. 51 (2002), upon which CNN
relies, the Supreme Court declined to view an agency’s
“decision not to adopt a regulation . . . as the functional
equivalent of a regulation prohibiting all States and their
political subdivisions from adopting such a regulation,”
where, as here, there was no authoritative statement or ruling
from Congress or the agency precluding state regulation. Id.at 65–68. Thus, the limited federal regulatory and statutory
framework does not occupy the field of closed captioning,
particularly for online video programming.5
5
Although the CVAA and the FCC’s implementing regulations do not
“authorize any private right of action to enforce any requirement of this
section” and instead provide that the FCC “shall have exclusive
jurisdiction . . . [over] any complaint under this section,” 47 U.S.C.
GREATER L.A. AGENCY ON DEAFNESS V. CNN 25
b. Conflict Preemption
At this stage, CNN fares no better under its related theory
of conflict preemption. Conflict preemption applies “where
compliance with both federal and state regulations is a
physical impossibility,” and in “those instances where the
challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Arizona, 132 S. Ct. at 2501 (internal
quotation marks omitted). Based on the pleadings and limited
evidentiary record in this case, GLAD has shown that its
claims have a “minimum level of legal sufficiency and
triability” to withstand CNN’s conflict preemption challenge
at this early stage of the litigation. Soukup, 139 P.3d at 51(internal quotation marks omitted).
Crediting GLAD’s evidence only for purposes of this
anti-SLAPP appeal, we conclude that CNN’s compliance
with the CVAA, applicable FCC regulations, and the DPA is
not “a physical impossibility.” Arizona, 132 S. Ct. at 2501(internal quotation marks omitted). As noted earlier, the
CVAA and FCC regulations are limited to a subset of all
online videos and require closed captioning of those videos
under a specified timetable. For CNN.com videos outside the
scope of the federal captioning scheme, nothing in the CVAA
or the FCC’s regulations conflicts with GLAD’s right to seek
a broader closed captioning requirement encompassing those
§ 613(j) (emphasis added); 47 C.F.R. § 79.4(f), the FCC’s exclusive
jurisdiction over complaints under the CVAA does nothing to extinguish
GLAD’s right to pursue broader relief for online captioning under the
DPA, see National Ass’n of the Deaf v. Netflix, Inc. (“NAD”), 869 F.
Supp. 2d 196, 205 (D. Mass. 2012) (“There is no indication that the
CVAA . . . extinguishes private rights of action under the ADA for closed
captioning of video programming on the Internet.”).
26 GREATER L.A. AGENCY ON DEAFNESS V. CNN
videos under California law or with its ability to comply with
state-imposed requirements. NAD, 869 F. Supp. 2d at
203–05. To the extent that the federal captioning scheme and
the DPA may require different captioning requirements or
deadlines, these differences do not “create a ‘positive
repugnancy’ between the two laws” or otherwise demonstrate
an irreconcilable conflict between federal law and the DPA
because CNN can comply with both. Id. at 205 (quoting
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)).
Nor does the record, at this procedural juncture, lead to
the conclusion that the DPA presents an obstacle to
Congress’s purpose in enacting a federal captioning scheme
for online video programming. Congress’s purpose in
enacting the CVAA was to “update the communications laws
to help ensure that individuals with disabilities are able to
fully utilize communications services and equipment and
better access video programming.” S. Rep. No. 111-386
(2010). The limited record in this anti-SLAPP appeal
suggests that applying the DPA to compel CNN to caption its
online news videos for California visitors may supplement,
rather than impede, the underlying purposes of the federal
captioning scheme for online news videos. Consequently, we
cannot conclude, on the pleadings and record before us, that
GLAD’s DPA claims are foreclosed by the doctrine of
conflict preemption.
2. Freedom of Speech
CNN next argues that imposing a closed captioning
requirement under the DPA violates CNN’s free speech rights
under the First Amendment of the United States Constitution
GREATER L.A. AGENCY ON DEAFNESS V. CNN 27
and Article I, Section 2 of the California Constitution.6 CNN
chiefly contends that interpreting the DPA to require closed
captioning on CNN.com imposes either an unconstitutional
prior restraint or alternatively an impermissible burden on
CNN’s speech that fails intermediate scrutiny.7 Accepting as
true the evidence favorable to GLAD, we hold that GLAD’s
DPA claims have the requisite minimal merit to survive
CNN’s free speech challenge.
a. Prior Restraint
“Prior restraints on speech are disfavored and carry a
heavy presumption of invalidity.” Long Beach Area Peace
Network v. City of Long Beach, 574 F.3d 1011, 1023 (9th Cir.
2008) (internal quotation marks omitted). A prior restraint is
an administrative or judicial order that forbids certain
communications issued before those communications occur.
Alexander v. United States, 509 U.S. 544, 549–50 (1993). As
the Supreme Court has recognized, “[n]ot all injunctions that
may incidentally affect expression . . . are prior restraints.”
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 n.2
(1994) (internal quotation marks omitted). Consistent with
Madsen, we have held that a statute permitting injunctions
6
Consistent with the parties’ briefing, and because no injunction has yet
been imposed against CNN, we construe CNN’s free speech argument as
an as-applied constitutional challenge to the DPA.
7
CNN also argues that a captioning requirement would compel it to
speak by forcing it to report news content or express certain views. This
is not so. A captioning requirement would simply require CNN to express
the same speech it already expresses to hearing visitors of CNN.com. See
MPAA, 309 F.3d at 803 (distinguishing captioning from regulations that
were “related to a program’s content” and noting that unlike creative
works, “closed captioning is a straight translation of dialogue into text”).
28 GREATER L.A. AGENCY ON DEAFNESS V. CNN
against speech is not per se unconstitutional and have further
clarified that “[c]ontent-neutral injunctions that do not bar all
avenues of expression are not treated as prior restraints.”
Maldonado v. Morales, 556 F.3d 1037, 1047 (9th Cir. 2009).
The captioning requirement GLAD seeks under the DPA is a
content-neutral injunction that requires CNN to provide
closed captioning on videos posted to CNN.com. The
evidentiary record, construed in GLAD’s favor, shows that
there is at least minimal merit to GLAD’s contention that the
requested injunction neither prohibits nor forbids CNN’s
speech but instead endeavors to make that speech accessible
to hearing-impaired individuals. Therefore, for purposes of
our anti-SLAPP analysis, we reject CNN’s contention that
interpreting the DPA to require CNN to caption its news
videos would impose an unconstitutional prior restraint under
the First Amendment or California Constitution.8
b. Intermediate Scrutiny
Equally unavailing, at this preliminary stage of the
proceedings, is CNN’s alternative argument that construing
the DPA to require captioning impermissibly burdens its free
speech rights and fails under intermediate scrutiny. GLAD’s
evidence, which we accept as true in this anti-SLAPP appeal,
8
That the California Constitution’s guarantee of free speech is “more
definitive and inclusive than the First Amendment” does not alter our
conclusion that GLAD’s requested injunction is not a prior restraint on
speech under either provision. See Wilson v. Superior Court, 532 P.2d
116, 120 (Cal. 1975). California courts do not apply a broader definition
of “prior restraint” when interpreting the more inclusive free speech
provisions of the California Constitution. E.g., Hurvitz v. Hoefflin, 84 Cal.
App. 4th 1232, 1241 & n.5 (2000) (noting broader scope of California
Constitution but applying definition of “prior restraint” adopted by the
Supreme Court in the First Amendment context).
GREATER L.A. AGENCY ON DEAFNESS V. CNN 29
shows that imposing a content-neutral captioning requirement
under the DPA would not burden “substantially more speech
than is necessary to further the government’s legitimate
interests.” E.g., Ward v. Rock Against Racism, 491 U.S. 781,
799 (1989). First, we note that the limited record establishes
that interpreting the DPA to permit a captioning requirement
as a remedy for alleged violations of that statutory regime
would advance California’s legitimate and substantial
interests in preventing discrimination and ensuring equal
access to the hearing-impaired. See Roberts v. U.S. Jaycees,
468 U.S. 609, 625 (1984) (“A State enjoys broad authority to
create rights of public access on behalf of its citizens.”);
Closed Captioning of Internet Protocol-Delivered Video
Programming, 77 Fed. Reg. at 19480 (noting that a closed
captioning requirement would further Congress’s goal of
better enabling hearing-impaired individuals to view online
video programming on equal terms). Taking the evidence in
GLAD’s favor, we conclude that the captioning requirement
GLAD seeks is narrowly tailored to further these interests by
ensuring that “the benefits and advantages offered by
CNN.com are fully and equally enjoyable to persons who are
deaf or have hearing loss in California.”
Although CNN presents expert testimony that a
captioning requirement could pose technical challenges,
cause delays in publishing news, substantially increase
CNN’s costs, and introduce inaccuracies into CNN’s news
content, GLAD has offered rebuttal evidence in the form of
expert testimony regarding the feasibility, relative accuracy,
and limited expense of the requested captioning requirement.
Crediting GLAD’s evidence, as we must at the second step of
the anti-SLAPP analysis, we conclude that CNN has not
defeated as a matter of law GLAD’s claim that enforcement
of the DPA through a captioning requirement survives
30 GREATER L.A. AGENCY ON DEAFNESS V. CNN
intermediate scrutiny. See Closed Captioning of Internet-
Protocol-Delivered Video Programming, 77 Fed. Reg. at
19486 (“As an initial matter, closed captioning requirements
implicate the First Amendment only marginally at best.”); see
also Gottfried, 655 F.2d at 311 n.54 (rejecting, in dicta, First
Amendment challenge to captioning requirement for
television programming on ground that a “captioning
requirement would not significantly interfere with program
content”); Implementation of Video Description of Video
Programming, 15 FCC Rcd. at 15255 (“[T]he U.S. Court of
Appeals for the D.C. Circuit concluded nearly twenty years
ago that any requirement to provide [television] programming
with closed captioning would not violate the First
Amendment.”). Accordingly, GLAD’s state law claims have
at least the “minimal merit” necessary to survive CNN’s free
speech challenge at this juncture.
3. Dormant Commerce Clause
In a final attempt to identify a constitutional infirmity in
GLAD’s claims, CNN asserts that a captioning requirement
would impermissibly burden interstate commerce and violate
the dormant Commerce Clause. CNN’s dormant Commerce
Clause challenge fails to defeat GLAD’s DPA claims at this
stage of the litigation.
The Commerce Clause of the United States Constitution
empowers Congress to “regulate Commerce . . . among the
several States.” U.S. Const. Art. I, § 8, cl. 3. “Courts have
long read a negative implication into the clause, termed the
‘dormant Commerce Clause,’ that prohibits states from
discriminating against interstate commerce.” Yakima Valley
Mem’l Hosp. v. Wash. State Dep’t of Health, 731 F.3d 843,
846 (9th Cir. 2013). The first step in our analysis is to
GREATER L.A. AGENCY ON DEAFNESS V. CNN 31
determine whether the DPA either discriminates against or
directly regulates interstate commerce. Brown–Forman
Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579
(1986). CNN does not argue that the DPA—which applies
evenhandedly to in-state and out-of-state news
providers—discriminates against out-of-state entities.
Consequently, we focus our inquiry on CNN’s contention that
imposing a captioning requirement under the DPA directly
regulates commerce that takes place wholly outside of
California.9
a. Direct Regulation of Interstate Commerce
Direct regulation of interstate commerce “occurs when a
state law directly affects transactions that take place across
state lines or entirely outside of the state’s borders.” Valley
Bank of Nev. v. Plus Sys., Inc., 914 F.2d 1186, 1189–90 (9th
Cir. 1990) (internal quotation marks omitted). The dormant
Commerce Clause forbids a state from regulating commerce
“that takes place wholly outside of the State’s borders,
whether or not the commerce has effects within the State.”
Healy v. Beer Inst., 491 U.S. 324, 336 (1989) (internal
quotation marks omitted). In determining whether the DPA
directly regulates interstate commerce, we focus our inquiry
on the “practical effect” of the statute. See id.; S.D. Myers,
Inc. v. City & Cnty. of S.F., 253 F.3d 461, 467 (9th Cir.
2001).
9
CNN also contends, without support, example, or evidence, that
applying the DPA could “potentially subject CNN to inconsistent
legislation from other states.” CNN’s contention is conclusory and
speculative.
32 GREATER L.A. AGENCY ON DEAFNESS V. CNN
Crediting the evidence submitted by GLAD, we conclude
that the DPA, which applies only to CNN’s videos as they are
accessed by California viewers, does not have the practical
effect of directly regulating conduct wholly outside of
California. Even though CNN.com is a single website, the
record before us shows that CNN could enable a captioning
option for California visitors to its site, leave the remainder
unchanged, and thereby avoid the potential for extraterritorial
application of the DPA. See Nat’l Fed’n of the Blind v.
Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006)
(“NFB”) (rejecting Target’s dormant Commerce Clause
challenge to DPA and Unruh Act on ground that “Target
could choose to make a California-specific website” and
stating that even if Target changed “its entire website in order
to comply with California law, this does not mean that
California is regulating out-of-state conduct”). Although
CNN asserts that creating a California-specific version of its
site would not be “feasible,” CNN’s evidence does not defeat
GLAD’s claim to the contrary.
b. Pike Balancing
Our inquiry, however, does not end there. We must next
subject the imposition of a captioning requirement to the
balancing test set forth in Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) and ask whether the “burden imposed on
[interstate] commerce is clearly excessive in relation to the
putative local benefits.” Id. at 142. Where, as here, “a
legitimate local purpose is found, then the question becomes
one of degree. And the extent of the burden that will be
tolerated will of course depend on the nature of the local
interest involved . . . .” Id. Applying this test at this stage of
the litigation and accepting as true GLAD’s evidence, we
GREATER L.A. AGENCY ON DEAFNESS V. CNN 33
determine that any burden imposed by the DPA is not clearly
excessive in relation to California’s putative local benefits.
California has a legitimate interest in providing hearing-
impaired citizens equal access to online news videos and
protecting its citizens from disparate discriminatory impact.
Cf. Roberts, 468 U.S. at 625. These putative benefits are
significant and are not minimized by the FCC’s limited online
captioning regulations, which do not cover much of the news
videos displayed on CNN.com. GLAD has presented
sufficient evidence to defeat CNN’s claim that the burdens
the DPA may impose are clearly excessive in relation to these
significant benefits. In fact, CNN already serves different
versions of its home page depending on the visitor’s country,
see www.cnn.com (last visited Jan. 8, 2014), and provides no
explanation for why it could not do the same for California
residents. We therefore conclude, at this preliminary stage in
the proceedings, that GLAD’s claims have the minimal merit
necessary to withstand CNN’s dormant Commerce Clause
challenge.
C. DPA Claims: Certification to California Supreme
Court
Having disposed of the Unruh Act claims and addressed
CNN’s constitutional challenges, we are left with the merits
of GLAD’s DPA claims. CNN argues that GLAD cannot
prove a probability of success on the merits of its DPA claims
because the DPA does not apply to non-physical places like
CNN.com, which is a virtual location on the Internet. For the
reasons articulated in our concurrently filed certification
order, we reserve decision on this question and respectfully
request that the California Supreme Court answer this
important and unresolved issue of state law. We stay the
34 GREATER L.A. AGENCY ON DEAFNESS V. CNN
issuance of the mandate, withdraw this case from submission
pending further order of this court, and retain jurisdiction
over further proceedings.10
VACATED.
10
With regard to the issues decided in this opinion, the normal rules
governing petitions for rehearing and petitions for rehearing en banc shall
apply.