Hamilton biggerOn January 23 the Lee Litigation Group and Scott Dinan, who frequently represent plaintiffs in ADA matters, filed suit against the producers, theater owners and others involved in the musical Hamilton. Their claim is that by failing to provide audio description* for their blind client the defendants violated the ADA. The Complaint, which can be read here, alleges both a violation of the general anti-discrimination provisions of the ADA and the specific requirement that public accommodations provide auxiliary aids.  It points out, correctly, that in November of 2016 the Department of Justice issued regulations requiring audio description decoding equipment for movie theaters. Why not, it asks, require the same for theatrical productions?

That question is one that raises important issues about the relationship of the ADA and technological change.  Audio description requires two steps. First, the description has to be added to the movie. Second, it has to be decoded in the movie theater.  Movie producers are including audio description on a voluntary basis, driven primarily by the need for the movies to comply with FCC regulations if they are to be shown on TV. With the producers adding audio description for the own reasons it makes sense to require theaters to provide the equipment to take advantage of this new content. Analog theaters are excluded from the movie theater regulation because there are almost no analog movies with audio description. DOJ has balanced various practical considerations to create a rule that makes sense in terms of costs and benefits, at least as DOJ calculates those things.

The Hamilton complaint ignores the distinction between content and equipment and between producers and theaters. It also ignores the difference between live theater and movies, because in live theater shows evolve, while a movie requires only a single audio description track for every copy distributed. Finally, although Hamilton has been wildly successful, the Hamilton complaint asserts a legal principal that is unrelated to the success of any particular production. It would to apply to every theater and every production, regardless of size and success.

A court required to fashion injunctive relief cannot ignore these distinctions. Whether the producer of a theatrical production is the owner, operator or lessee of a public accommodation will likely be a fact intensive inquiry that depends on the particular contractual relationships. If the court cannot require the producer to provide audio description then requiring the theater to provide the needed equipment is useless. That means any ADA suit for this particular accessibility feature must always involve both the theater and the producer, and can provide useful relief only in the producer is found to be the owner, operator or lessee of a public accommodation. Victory for the plaintiff may require the theater owner to install equipment that won’t be useful for the next production.

While the success of Hamilton might justify a finding that the cost of audio description is not excessive for that particular musical, the court will also have to consider when and how that determination is to be made. One would think that audio description should be available opening night, but more shows fail than succeed, and the cost of an auxiliary aid or service is likely to unreasonable for a show that loses money. A movie producer can evaluate its likely success of before deciding to invest in audio description because it is voluntary. If audio description is made mandatory for theatrical producers the cost will have to be incurred regardless of anticipated success or failure.

Finally, the Hamilton court will know from the beginning that it cannot issue an order that will require all producers to provide audio captioning or that all theaters offer the equipment to decode it. Any injunction it issues will cover only one theater and one show. Real relief for the disabled will require hundreds or thousands of lawsuits. Regulating theatrical produces through litigation means that in all likelihood 90% of the money spent will go to lawyers. That’s a huge drain on an industry that is in perpetual financial trouble. It also means that many productions will never open because they will be sued before opening night and the legal expense will exceed any possible profit.

The DOJ is not good with changing technology, as its efforts to regulate the internet prove. Regardless of DOJ’s failures though, private litigation is the worst imaginable way to accomplish public policy goals.  Hamilton the lawsuit may or may not succeed, but regardless of the outcome (which will most likely be a settlement) it will probably draw enough attention to this unharvested field of possible lawsuits and legal fees to inspire copycats.  Next year theater goers can ask themselves how much of their ticket price went to lawyers instead of artists.

There is a simple legislative solution. When the ADA was first passed the physical access requirements did not go into effect until after the Department of Justice issued regulations defining exactly what “accessible” meant. The ADA needs a similar provision with respect to auxiliary aids and services. No auxiliary aid or service should be required of any business until the Department of Justice issues regulations defining what is required, by whom, and by what date.** DOJ itself often tries to regulate by litigating, so this must apply to DOJ as well.

Disabled Americans have a right to know what kinds of accessibility features the law requires. Businesses have a right to know what the law requires before they are sued. Regulation by litigation denies both groups the certainty they are entitled to, and imposes an enormous cost burden in the form of legal fees.

*audio description services provide an audio description of the scenery, movement and other visual elements of a production for those who are blind or vision impaired.

** At present even when DOJ does issue regulations they are worthless for business because they do not preclude litigation before they become effective. The DOJ regulations for movies do not require compliance until June 2, 2018, but there are already lawsuits in process because nothing about the regulatory process precludes litigation in advance. DOJ’s official position on this and many other technological developments is that you can violate the ADA before anyone tells what just what a violation is, and that if you violate these unknown requirements you can be subject to penalties or attorneys fees.