Those Who Sue So That We Can

Facebook reminded me this past Friday, 17 November, that I’d shared a post one year ago from Loving’s official promotional page; Loving, you will recall, being the historical dramatisation of the legal struggle of inter-racial couple Mildred and Richard Loving for state recognition of their marriage.

Moved anew by the simple but poignant declaration that “Love is meant to be shared,” I reshared the post, tagging my girlfriend meaningfully as I did so. Later, as we celebrated the history of it all via phone, she asked whether I’d ever seen the movie, to which my reply was a flippant “No, but I’ve read the case transcript.” Even as the words left my mouth, though, it struck me that their implied dismissal as more defensive reflex than truth. I had, in fact, wanted to see Loving, Hidden Figures, Selma, and – (before realizing the travesty of a Disnefied Star Wars) – The Force Awakens. But, though the latter’s release coincided with a groundswell of awareness about audio-descriptive access to movies and shows in my social circle, I somehow defrayed any sense of urgency about exploring this expanding frontier of accessibility. Would there be enough dialogue to extrapolate actions? Would the musical score overwhelm the dialogue? Would comvidiates be inclined to provide accessible commentary? These are but a sample of the considerations that made the filmed experience into a fraught accessibility lottery for me, and The sudden promise of more access than I’d ever dared to dream of could not unseat habits of avoidance and substitution cultivated over twenty-plus years.

This holiday season, though, I look with hope and gratitude toward another soon-to-be historic court case, McGann v. Cinemark, which holds out the promise that no deafblind person of the future will feel compelled to cultivate such habits.

The case, which pits Paul Richard McGann, a deafblind movie enthusiast, against Cinemark USA, INC., the third-largest theatre chain in the country, concerns whether or not the ADA requires theatres to provide tactile interpreters for deafblind moviegoers upon request. The initial round went to Cinemark, with the U.S. District Court of Western Pensylvania reasoning that McGann’s requested tactile interpreter, firstly, was not a recognized auxiliary aide or service under the ADA, and secondly, that it constituted an unlawful change to the content of Cinemark’s services. On appeal to the United States 3rd circuit, however, this judgment was reversed in favour of Mr. McGann. Amid a flurry of snappy lexical rebuttles and crisp legal zingers, the following passage stands out as a keystone of the pro McGann opinion: “Among those problems Congress sought to address by enacting the ADA was the “serious and pervasive social problem” of “discrimination against individuals with disabilities” by “isolating and segregating” them in American society. Congress stated in the text of the ADA that this isolation and segregation of individuals with disabilities persisted “in such critical areas as . . . public accommodations . . . [and] recreation.”

Indeed, data and testimony collected by Congress as it developed the ADA “painted a sobering picture of an isolated and secluded population of individuals with disabilities” who “did not frequent places of public accommodation.” Due to communication barriers, among other reasons, the “large majority of people with disabilities did not go to movies, did not go to the theater, did not go to see musical performances, and did not go to sports events”. “The extent of non-participation . . . in social and recreational activities [was] alarming.” So, after its thorough and fact-intensive investigation, “Congress concluded that there was a ‘compelling need’ . . . to integrate [individuals with disabilities] ‘into the economic and social mainstream of American life.’”

among the “Nation’s proper goals” are “equality of opportunity” for and “full participation” in American life by individuals with disabilities).

This legislative history reflects Congress’ recognition that presenting movies in the theater is a component of the “social mainstream of American life.” Indeed, our Supreme Court has commented on the importance of movies in American culture:

It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.

If we interpret the auxiliary aids and services requirement to facilitate only the process of directing an individual with hearing or vision impairments to the right auditorium, which is showing a movie they cannot hear or see (or both), the requirement does little, if anything, to remediate the very problem Congress designed it to address. For these reasons, we conclude that Cinemark’s failure to provide McGann with a tactile interpreter for a presentation of the movie Gone Girl excluded him from or denied him Cinemark’s services.”

Thank you, Loving; thank you, McGann; thank you, everyone who’s ever sued so that others can: can attend accessible movies, can use ride-sharing services, can have access to quality education, and so much more.

– George Stern