By Kaitlyn Stone
Think about your favorite movies. What stands out to you? The goofy, lovable characters? The daring adventures or funny situations? Maybe a show-stopping musical number? Things that ten, twenty, thirty years down the road, you can still point to and say, “That’s why I loved that movie!” Now imagine that you didn’t have all the information to form these memories. Maybe you missed out on the origin story of your favorite character, important plot points that add drama and suspense to the story were left out, or you couldn’t understand the lyrics to the musical number. Can you imagine how this would impact your connection to the story? Suddenly, a story that is relatable and memorable becomes foreign and forgettable.
This is the problem faced by a group of consumers led by Christine Anthony. The group filed a lawsuit against several media and entertainment companies including, the Walt Disney Company, Warner Bros., Sony Pictures and Netflix alleging that the labels on their DVDs and streaming services misled people who are deaf or hard of hearing. Their complaint explains that these entertainment companies advertise their movies and TV shows as having “closed captioning” while some features, specifically music and song lyrics, are not captioned or subtitled. The lack of captions and subtitles interferes with the ability to fully engage and appreciate the cinematic experience and causes people who are deaf or hard of hearing to feel disconnected from their families and friends who are able to fully enjoy the movie. In some cases, it even affects the individuals’ ability to understand what is happening on screen when the song lyrics are instrumental in advancing the story or establishing a theme.
The lawsuit, which started in a California state court, was eventually moved to the United States District Court for the Central District of California. The Defendant entertainment companies filed a motion to dismiss and a special motion to strike under California’s anti-SLAPP statute. Both motions were granted and the case was dismissed.
California Code of Civil Procedure §425.16 (the “anti-SLAPP” statute) was enacted in 1992 in response to an increased number of SLAPP suits. A SLAPP suit (short for strategic lawsuit against public participation) is a meritless lawsuit brought to keep a party from exercising their constitutional rights to petition and free speech. Real estate developers against community organizers that spoke out against the development projects typically brought these suits. In most cases, the plaintiff does not expect to win the suit; rather, they are hoping to tie up the resources and efforts of the defendant long enough that they will eventually concede. In response to the growing number of these lawsuits in the 1980s and 1990s, the California legislature enacted the Anti-SLAPP statute. Many other states followed suit.
Under this act, a defendant that believes that they are entitled to protection files a motion to strike and if granted, will be entitled to attorney’s fees. In order to succeed on the motion to strike, the court analyzes the alleged conduct under a two-step process. First, the burden lies with the defendant to prove that the claim arises from the valid exercise of protected speech activities. Once this is established, the burden shifts to the plaintiff to present sufficient evidence to demonstrate that they have a probability of succeeding on their claim. If they cannot prove they have a likelihood of success, the motion to strike is granted and the claim is dismissed.
In the current case, the district court found that both prongs were satisfied. First, they determined that the decision to include subtitles in certain parts of a movie or TV show is an artistic decision that is protected by the First Amendment and is, therefore a protected activity. Secondly, the court found that the plaintiffs’ claim had no chance of success because the plaintiffs were aware that the industry custom was to not caption some of the music and song lyrics in movies. The court concluded that the arguments presented by the plaintiffs would not succeed and merely illustrated their hope that the industry custom would be changed.
What is interesting about this case is that it seems to be backward from the typical anti-SLAPP suit. Traditionally, the anti-SLAPP statute is asserted by an individual or group of defendants whose only act was exercising their freedom of speech or petition against “the man.” This statute was effectively instituted by the California legislature in order to protect the small, innocent Davids from the larger, litigation-hungry, corporate Goliaths. In the present case, the plaintiff is not a corporate entity trying to keep activists from protesting their most recent action. It is actually quite the opposite: Consumers with a legitimate concern are bringing suit against the corporations to try to effect direct change. This is a shift that has been observed in anti-SLAPP litigation, particularly in the entertainment industry.
While this case does seem to have been decided correctly under the current statute, it may be time for the California legislature to re-evaluate how the legislation is being used. The effect of this case being dismissed so early in the proceedings is that the plaintiffs will not receive a decision on whether or not the industry custom is unreasonable and should be changed, effectively denying them any relief. This statute provides important protections for free speech and the right to petition, but if it is being abused by large corporations using it as a shield from litigation, shouldn’t the legislature be concerned about this?
As it turns out, a carve-out for this type of situation already exists. California Code of Civil Procedure §425.17 establishes an exemption for purely “corporate speech.” This statute prevents the application of the anti-SLAPP statute by corporate and other business entities is certain circumstances. The reason behind the enactment of this exception is to prevent businesses from “trash-talking” each other.
This issue was raised by the district court in the current case. However, the court determined that because the underlying nature of the conduct in this case was strictly an exercise of the companies’ freedom of speech (as opposed to being purely commercial in nature), this exemption did not apply.
This seems to an arbitrary and often difficult distinction to draw and substantiates the idea that it may be time for the California legislature to re-evaluate the situation and adjust the statute accordingly. If not put in check, the way that courts approach anti-SLAPP cases with a corporate defendant could end up severely restricting the ability of individuals to have their claims heard. The plaintiffs in this case will now have to try to change the industry standard on their own- a very daunting task when you are trying to convince the largest entertainment and media companies in the country to change a well-established practice. Additionally, the advancement of technology and media in the future may make this even more of a concern. The more ways that companies are able to reach consumers, the more chance there is for a similar situation to arise. If these companies are able to hide behind anti-SLAPP legislation to avoid changing the practices of the industry, how will the needs of the consumers ever be adequately addressed?
This is not the last we will hear about this case either. The representative for the plaintiffs has stated that they will appeal this decision. Perhaps the Circuit Court will be able to give more guidance on how the statute should apply, but until then, the plaintiffs will have to fill in the blanks in the movies on their own.
Student Bio: Kaitlyn is a second year student at Suffolk University Law School. She is a staff member of the Journal of High Technology Law and the Director of Media for the Sports and Entertainment Law Association.
Source Link: https://advance.lexis.com/document/?pdmfid=1000516&crid=97ddc7e7-bbf6-4f55-b4d6-ddf535a75309&pdworkfolderid=32a91015-f815-444b-8182-e5d64514fb75&ecomp=n74hk&earg=32a91015-f815-444b-8182-e5d64514fb75&prid=dda4c368-e944-4eb4-8528-f342c91344ef
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
