Pinecrest attorney J. Courtney Cunningham represents the National Association of the Deaf. Courtesy photo.

A civil rights lawsuit claiming the Florida Legislature should provide captioning on all live-streamed and archived proceedings has survived a motion to dismiss, as the U.S. Court of Appeal for the Eleventh Circuit found that the fundamental right to participate in the democratic process was at stake.

The appellate panel looked further than the Americans With Disabilities Act to note that, without access to information about what legislative representatives are doing, deaf citizens can't properly petition their government for assistance.

"This type of participation in the political process goes to the very core of the political system embodied in our Constitution," the opinion said. "To say no fundamental right is at issue here would be to deny the underpinnings of our democratic republic."

The ruling means Pinecrest attorney J. Courtney Cunningham will continue to litigate for the National Association of the Deaf, or NAD, with Stein & Vargas founders Michael Stein and Mary Vargas in Washington, D.C.

Cunningham called the decision "extraordinarily powerful."

"It basically says that if people with disabilities are seeking information from their government that's going to allow them to participate in the decision-making and legislative process in their government, that is a fundamental right under the U.S. Constitution, that they be provided equal access to that information," Cunningham said.

The dispute began when South Florida member Eddie I. Sierra wrote a letter to the Florida Senate and House, frustrated that he couldn't understand what was happening in their public debates, negotiations and votes on a range of issues without captioning.

According to the court opinion, that letter remains unanswered.

In 2018, Sierra and the NAD sued the state, the Florida Senate and its president, and the Florida House and its speaker. The lawsuit also called out the Florida State University Board of Trustees and its president John Thrasher, as it owns an operates a website that live-streams the proceedings.

The complaint points to Title II of the ADA, and Section 504 of the Rehabilitation Act, which prohibit discrimination based on disability.

But the defense moved to dismiss, arguing sovereign immunity barred the suit, and claiming an injunction was unnecessary because the legislature could remove videos from its platform altogether without violating federal law. But U.S. District Judge Ursula Ungaro disagreed.

That was the right move, according to the Eleventh Circuit panel, which used a three-prong test to conclude that Congress had overruled the defendants' sovereign immunity by enacting Title II of the ADA.

"Here, deaf citizens are being denied the opportunity to monitor the legislative actions of their representatives because defendants have refused to provide captioning for legislative proceedings," the opinion said.

'These are our citizens'

Cunningham described the issue as ongoing and nationwide, but said he hopes governments will see the ruling as an opportunity to fix accessibility issues.

"You can go on many websites of many government entities around the country and check to see whether there's closed captioning, and I would suggest that there's not on many, many websites," Cunningham said. "I would hope that governments would not view it as a grudging obligation, they would view it as, 'These are our citizens, just like people without disabilities are our citizens, and they have the right to be fully involved in their government just like anybody else.' "

Defense counsel Jonathan Williams, Lorelei Van Wey and Martin Goldberg of Lash & Goldberg in Miami deferred to their clients, the Florida Senate, which declined to comment, and the House of Representatives, which did not immediately respond. Edward Wenger represents the Florida Office of the Attorney General in Tallahassee and Florida State University, but did not immediately respond.

Eleventh Circuit Judge Beverly B. Martin wrote the opinion, with Senior Fourth Circuit Judge William B. Traxler sitting by designation.

Senior Eleventh Circuit Judge Gerald Bard Tjoflat dissented in part, taking issue with the district court's sparse reasoning for denying the legislative defendants' motion on the Rehabilitation Act.

The act waives sovereign immunity for a state body that receives federal financial assistance—something the legislative defendants argued they don't receive. The plaintiff countered that more discovery was needed to figure out whether sovereign immunity applied under the act.

" Without such an explanation, I do not believe we can properly decide whether the district court abused its discretion," Tjoflat said.

The ruling directs the defendants to file an answer to complaint, though they could or move for rehearing or petition the U.S. Supreme Court.

Read the opinion:

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