By John Waldo
Many of us with hearing loss need captioning to enjoy a movie. Federal and Washington State disability laws have responded by requiring theaters to provide individual closed-caption viewing devices, which enable us to access the captions without altering the experience for others. Although better than nothing, those devices are not really satisfactory. What we’d like is open captions (OC), displayed on the screen, so that we can just walk in and enjoy a movie without the hassle of checking out cumbersome, conspicuous, and unreliable devices. An ongoing petition asking for OC just passed the 25,000 signature mark.
The federal Americans with Disabilities Act (ADA) doesn’t help us. Although the law itself says nothing about OC, reports from the House and Senate expressing legislative intent say the law does not require theaters to show OC movies. Both the courts and the federal Department of Justice have essentially treated those statements of intent as having the force of law.
There’s an “escape hatch,” though. The ADA does not override state or local laws that provide greater protection for people with disabilities. So the quest for OC has moved to state legislatures and city councils, and here, we’re beginning to see some positive results.
In 2015, the State of Hawaii passed a law requiring theaters with multiple locations in the state to offer two OC showings each week of each movie distributed with OC — most movies are. OC statutes are under consideration in Virginia, West Virginia, Maryland, and the District of Columbia. And at the end of 2021, the New York City Council passed an ordinance requiring all movie theaters in that city to offer four OC showings per week. The NYC ordinance also specifies showtimes, requiring one matinee and one evening showing each weekend, and one matinee and one evening showing during each week.
The National Association of Theatre Owners (NATO) has vigorously opposed OC mandates. Their concern is that hearing audiences shun OC, and indeed, their numbers show relatively low attendance for OC shows. I’ve always thought that’s the wrong question. If the OC-avoiders go to a different showing of the same movie or go to a different movie, the theaters have lost nothing. On the other hand, if some of the people at the OC showings would otherwise not attend movies at all, those people are all new revenue. And indeed, preliminary data from a short-lived experiment in Washington, D.C. shows that when both an OC and a non-OC showing of the same movie occur within an hour of each other, OC attendance is lower than at the other showing, but total attendance exceeds what would be expected.
I’m pleased to report that in a very recent (March 7, 2022) Zoom conference, the New York City theater owners have committed to giving that ordinance an honest effort for six months. Better yet, they have committed to gathering relevant data. While they will, no doubt, compare OC to non-OC attendance, they’ll also compare total attendance at their NYC theaters with attendance at theaters in nearby areas not subject to the OC ordinance.
Washington Representative Tina Orwell has taken an interest in this issue, and she was interested in generating some form of an OC demonstration project. That effort died for this year because of the short legislative session, but it may be revived in the future. My hope is that what we learn from New York City will provide some solid insight into how some scheduled OC showings can be integrated into movie-theater schedules in a way that provides us with full and equal enjoyment, does not meaningfully diminish the ability of others to enjoy movies in the non-captioned format they prefer, and enhances theater revenue. That would be a real win-win outcome.
John Waldo is an attorney whose practice focuses exclusively on issues arising out of hearing loss. He was counsel on a number of the cases that led to nationwide movie-captioning requirements, including one in Washington State, where he formerly practiced. He now lives in Houston, but continues to practice nationwide.