This guest post was contributed by Natalie M. Reynoso, a second-year Southwestern Law School student who is now taking the Entertainment Law and the Emerging Web course.

Paul McGann can’t see nor hear them but he still loves the movies. The blind and deaf resident of a Pittsburgh suburb went to theaters often, with his late wife acting as his aide and guide, “interpreting” films so he could follow them in the American Sign Language he can understand.

But after her death not long ago, he asked Cinemark Cinemas to provide him with “tactile interpretation services” so he could go to his local Carmike theater (part of the chain) to see Gone Girl, a movie whose buzz he had learned of. Cinemark, citing the $200 it would cost to hire several people to assist McGann, rejected his request.

That “no” may end up costing theater operators, already staggered by competition with online services and a summer of slim box office receipts from super hero sequels and other story retreads. Cinemark itself has found itself embroiled in a court case considerably more expensive than what it might have paid, if it said yes to what it now says was a rare request by McGann.

What’s at stake, the U.S. Court of Appeals for the Third Circuit has decided, is the effective application of the Americans with Disabilities Act (ADA) in commercial public spaces, in this instance thousands of movie theaters in malls and on neighborhood street corners across the country.

The Philadelphia-based appellate court recently reversed a federal judge’s dismissal of McGann’s ADA lawsuit against Cinemark, rejecting the theater company’s arguments as to what might be reasonable accommodation for its patrons with vision, hearing, and other impairments covered under federal law.

Cinemark, at trial, did not dispute that the qualities of a tactile interpreter differed materially from others who provided similar services required under the ADA, nor did it dispute that McGann needed and would benefit from the tactile interpretation services.

They were not, however, the “auxiliary aids and services” that the ADA describes and requires, the lower court judge found, rejecting McGann’s request for them. The judge based his decision, in part, on a dictionary definition of auxiliary, meaning something that has a supplemental relationship to something else.

But the three appellate judges slapped down that view, retorting that “applying the District Court’s definition would render the auxiliary aids and services requirement of Title III [of the ADA] meaningless.” The appellate judges said that tactile interpretation services clearly fell under the definitions and requirements as spelled out for public spaces by the ADA and the Department of Justice.

The appellate judges said the lower court had wrongly limited the ADA obligations of operators of commercial public spaces like theaters. Courts cannot simply look at the cost of auxiliary aids and services for them versus what they pay to enter a public space. The appellate court also said the law requires judges to consider if accommodating disabilities causes any fundamental change in the goods or services offered to all. That would not occur with McGann’s getting tactile interpretation, which would have zero effect on the movie shown or to other patrons.

Meantime, Cinemark had an ADA obligation to provide him with an accommodation because it would entitle him to share in the experiences that all movie-goers get. A theater’s services include more than just selling tickets and providing an auditorium. Cinemark’s failure to provide the plaintiff with interpretation effectively denied him access to a public space and entertainment, the court said.

The appellate judges remanded the case, noting that Cinemark now may wish to assert an undue burden defense, which the lower court had not reached nor considered in its earlier ruling in favor of the theater chain not on other grounds.

The Justice Department, in enforcing the ADA, says that public space operators may be exempted from some required and specific accommodations if they impose on them an “undue burden,” defined as a “significant difficulty or expense.”

That has become a growing concern, not just for movie theaters but also for venues for plays and dramas, as well as various forms of live music. Operators of such spaces already have widened entries, installed ramps, and configured seating differently to assist those with mobility challenges. They’ve also been under pressure by ADA advocates to offer closed captioning services or auxilliary devices for those with vision impairments.

The National Association of Theatre Owners, in a recent online blog post directed at its members about legislation and litigation affecting their operations, noted that:

Business groups continue to press Congress to support legislation mitigating the effect of so-called ‘drive-by’ lawsuits.  The past few years have seen dramatic growth in the number of lawsuits alleging violations under Title III of the Americans with Disabilities Act (ADA).  Often, these lawsuits are filed by firms or individuals notorious for their litigious approach and who have created a cottage industry of suing businesses for minor or technical violations of the ADA that could be easily remedied.  In some cases, the lawsuits misapply the ADA standards and allege violations where there are none, causing business owners to spend precious resources responding to a suit that has little to no standing.

The group also assails lawyers sending ADA-related demand letters with so few specifics that theater operators cannot respond to them to avert litigation.

To get a sense of the potential and growing complexity of the issues and responses, it may be valuable to click on the photo above from the Pittsburgh Post-Gazette  to see a video posted from the American Council of the Blind on technology advancements and how they enable the sight-impaired to see films.