Case Information
*3
McKEOWN, Circuit Judge:
This аppeal—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. (“GLAAD”) 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- *4 SLAPP statute broadly and our recent precedent, we hold that GLAAD’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 GLAAD has failed to establish 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 GLAAD’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.
B ACKGROUND
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 GLAAD 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 G REATER L.A. A GENCY ON D EAFNESS 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,
II. GLAAD’s Lawsuit
CNN is a wholly owned subsidiary of Turner Broadcasting System, Inc., which “is ultimately wholly owned by Time Warner Inc.” CNN operаtes 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 GLAAD brought this action.
In December 2010, GLAAD 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 rulеmaking actions regarding the captioning of online videos “ultimately required.” 8
Unable to reach an agreement with CNN over closed captioning, GLAAD 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, GLAAD alleged that CNN [2] 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, GLAAD 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.”
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 GLAAD’s Unruh Act and DPA claims arose from conduct in furtherance of CNN’s free speech rights and that GLAAD had failed to establish a probability of prevailing on its claims. The magistrate judge denied CNN’s *7 anti-SLAPP motion on the ground that CNN’s conduct was [2] Although GLAAD initially named Time Warner as defendant in the complaint, the parties stipulated that CNN would be substituted for Time Warner.
[3]
Because GLAAD 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
,
not in 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
GLAAD’s action. The magistrate judge also rejected CNN’s
contention that GLAAD’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
,
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
,
In determining whether GLAAD’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 GLAAD’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 GLAAD 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 GLAAD’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
,
GLAAD 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 GLAAD’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 GLAAD’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 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 , GLAAD’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 sitе. Like the plaintiff in Gangland , GLAAD would have no reason to sue CNN absent the news videos on CNN.com. Indeed, GLAAD 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 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 GLAAD does not request any changes to the
substantive content of CNN’s online news videos, GLAAD,
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,
GLAAD targets conduct that advances and assists CNN in
exercising its protected right to report the news.
See Hunter
v. CBS Broad., Inc.
,
Attempting to elude the scope of the anti-SLAPP statute, GLAAD 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 GLAAD’s view, its action demands nothing more than the neutral application of California’s anti-discrimination laws to “CNN’s mechanical delivery process for its online news videos” without regard to the substantive content of those videos.
In support of its argument, GLAAD relies on two D.C.
Circuit cases and an FCC order.
See MPAA
,
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 GLAAD’s action is based on conduct in furtherance of CNN’s free speech. Even if we accept GLAAD’s narrow view that its action targets CNN’s refusal to adopt closed captioning as opposed to
G REATER L.A. A GENCY ON D EAFNESS V . 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 GLAAD 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 GLAAD’s action targets an act—declining to caption online news videos—that furthers CNN’s free speech right to report the news. GLAAD’s evidence is instead more relevant to the question of the relative burden imрosed 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 and must withstand scrutiny under California’s anti-SLAPP statute.
II. Anti-SLAPP Step Two: Probability of Prevailing on
Merits
Becаuse CNN has made the threshold showing at step one
of the anti-SLAPP analysis, we next determine whether
GLAAD 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, GLAAD must demonstrate that its claims have “only a
minimum level of legal sufficiency and triability.”
Soukup v.
Law Offices of Herbert Hafif
,
A. Unruh Act Claims
GLAAD 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.
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.
,
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 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, GLAAD has similarly failed to establish the
intentional discrimination needed to sustain an Unruh Act
claim. At the time GLAAD 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
,
Although GLAAD’s Complaint asserts that CNN
intentionally excluded deaf and hard of hearing individuals
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 GLAAD’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
,
GLAAD’s reliance on
Hankins v. El Torito Restaurants,
Inc.
,
restaurant denied physically handicapped patrons access to a restroom that was otherwise available, GLAAD seeks a service—closed captioning for online videos—that is denied tо 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 GLAAD’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
,
B. DPA Claims: CNN’s Constitutional Arguments
CNN also attacks GLAAD’s state law claims on
constitutional grounds, arguing that GLAAD’s claims and
requested relief are preempted by federal law, violate CNN’s
*17
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
,
At this juncture, none of CNN’s constitutional challenges
pose a barrier to GLAAD’s pursuit of its DPA claims. We
reiterate, however, that we decide only whether GLAAD has
demonstrated a “probability” that its DPA claims will prevail.
Soukup
,
1. Preemption
We first address whether federal law preempts GLAAD’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
*18
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
,
a. Field Preemption
Under the doctrine of field preemption, “the States are
precluded from regulating conduct in a field that Congress,
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
,
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 stаte 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
*19
24
G REATER L.A. A GENCY ON D EAFNESS V . 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,
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]
Although the CVAA and the FCC’s implementing regulations do not
“authorize аny 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.
*20
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
,
Crediting GLAAD’s evidence only for purposes of this
anti-SLAPP appeal, we conclude that CNN’s compliance
with the CVAA, applicable FCC rеgulations, and the DPA is
not “a physical impossibility.”
Arizona
,
those videos under California law or with its ability to comply
with state-imposed requirements.
NAD
,
Nor does the record, at this procedural juncture, lead to the conclusion that the DPA presents an obstacle to *21 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 GLAAD’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 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 GLAAD, we hold that GLAAD’s DPA claims have the requisite minimal merit to survive CNN’s free speech challenge.
*22
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
,
[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
,
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
,
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. GLAAD’s evidence, which we accept as true in this anti- [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 GLAAD’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).
G REATER L.A. A GENCY ON D EAFNESS V . SLAPP appeal, 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
,
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, GLAAD has offered rebuttal evidence in the form of
expert testimony regarding the feasibility, relative accuracy,
and limited expense of the requested captioning requirement.
Crediting GLAAD’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 GLAAD’s claim that enforcement
of the DPA through a captioning requirement survives
intermediate scrutiny.
See
Closed Captioning of Internet-
Protocol-Delivered Video Programming, 77 Fed. Reg. at
*24
19486 (“As an initial matter, closed captioning requirements
implicate the First Amendment only marginally at best.”);
see
also Gottfried
,
3. Dormant Commerce Clause In a final attempt to identify a constitutional infirmity in GLAAD’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 GLAAD’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 stаtes from
discriminating against interstate commerce.”
Yakima Valley
Mem’l Hosp. v. Wash. State Dep’t of Health
,
a. Direct Regulation of Interstate Commerce
Direct regulation of interstate commerce “occurs when a
state law directly affects transactions that take place across
*25
state lines or entirely outside of the state’s borders.”
Valley
Bank of Nev. v. Plus Sys., Inc.
,
[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.
Crediting the evidence submitted by GLAAD, 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 “Targеt 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 GLAAD’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.
,
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. GLAAD 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 GLAAD’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 GLAAD’s DPA claims. CNN argues that GLAAD 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 *27 34
issuance of the mandate, withdraw this case from submission pending further order of this court, and retain jurisdiction over further proceedings.
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.