Opinion
Case No. 4:20-cv-351-AW-MAF
2020-09-15
Michael YELAPI, Patricia Sanchez, Jaime Mariona, Julia Michalka, and Disability Rights Florida, Plaintiffs, v. Ronald DESANTIS, in his official capacity as Governor of Florida, and the Executive Office of the Governor, Defendants.
Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiffs Michael Yelapi, Patricia Sanchez, Jaime Mariona, Julia Michalka. Ann Marie Cintron-Siegel, Disability Rights Florida, Hollywood, FL, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Disability Rights Florida. Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Carlos Aponte. Blaine H. Winship, Nicholas Allen Primrose, Office of the Attorney General, Tallahassee, FL, Colleen M. Ernst, Office of General Counsel Executive Office of the Governor, for Defendant Ronald Desantis. Blaine H. Winship, Nicholas Allen Primrose, Office of the Attorney General, Tallahassee, FL, for Defendant Executive Office of the Governor.
Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiffs Michael Yelapi, Patricia Sanchez, Jaime Mariona, Julia Michalka.
Ann Marie Cintron-Siegel, Disability Rights Florida, Hollywood, FL, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Disability Rights Florida.
Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Carlos Aponte.
Blaine H. Winship, Nicholas Allen Primrose, Office of the Attorney General, Tallahassee, FL, Colleen M. Ernst, Office of General Counsel Executive Office of the Governor, for Defendant Ronald Desantis.
Blaine H. Winship, Nicholas Allen Primrose, Office of the Attorney General, Tallahassee, FL, for Defendant Executive Office of the Governor.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Allen Winsor, United States District Judge Disability Rights Florida ("DRF") and several deaf Floridians sued Governor Ron DeSantis and the Executive Office of the Governor, alleging violations of the Americans with Disabilities Act and the Rehabilitation Act. In short, their claim is that deaf Floridians are denied access to critical information about COVID-19, hurricanes, and other emergency situations because the Governor's press conferences do not always feature a sign language interpreter. Plaintiffs seek an order requiring live, televised, in-frame American Sign Language ("ASL") interpretation at all of the Governor's press conferences and news briefings. ECF No. 4 at 33. They moved for a preliminary injunction, the Governor responded, and the court held a telephonic hearing. This order denies the motion.
The two defendants are the Governor (sued in his official capacity) and the Executive Office of the Governor. Except where context suggests otherwise, this order's references to "the Governor" or "the Governor's office" are to both defendants.
I. THE RELEVANT FACTS ARE NOT IN DISPUTE.
Both sides submitted evidence. There is no dispute about any material fact at this stage, and the parties agreed no evidentiary hearing was needed.
A. The Governor Delivers Important Information at Press Briefings That Do Not Always Feature ASL Interpretation.
Citing COVID-19, the Governor issued a March 9, 2020 executive order declaring a state of emergency. ECF No. 4-1 at 22. Since then, the State of Florida—like the rest of the world—has been dealing with unprecedented circumstances. All the while, elected officials, experts, and others issued guidance and provided critical updates. The Governor held many press conferences for precisely these purposes. See ECF No. 21 at 3. At some of these conferences, an ASL interpreter accompanied him. At some, not.
The parties agree that the Governor now includes an ASL interpreter when he holds news briefings at the Capitol but that an ASL interpreter does not typically accompany the Governor when he holds press briefings outside Tallahassee. Id. ; ECF No. 25 at 1, 4. Plaintiffs have identified some 50 instances in which the Governor held a COVID-related press conference without ASL interpretation. ECF No. 4-1 at 35-40, Stachurski Decl.
The Governor will continue to hold press conferences featuring critical information not only about COVID, but also about other important issues, such as hurricanes or other disasters.
B. Plaintiffs Seek ASL Interpretation to Better Understand the Governor's Briefings.
DRF is an advocacy group for disabled Floridians, including the deaf, and it is concerned about its constituents' ability to receive accurate information. Many have complained to DRF that they cannot understand information conveyed at the Governor's COVID briefings without ASL interpretation. ECF No. 4-1 at 2 ¶ 9, Cintron-Siegel Decl. DRF, in turn, sent letters and emails to the Governor's office requesting ASL at news briefings. Id. at 3-4 ¶¶ 10, 14-17, 20. DRF never received a response, and although there was ASL interpretation at some later briefings, other times there was not. Id. at 3-4 ¶¶ 11, 18-20.
Plaintiffs noted "that people use many terms to describe their hearing-related disabilities" and that Plaintiffs would use the term "deaf ... for brevity, with no intent of offending or excluding those who prefer, require, and use other terms." ECF No. 4 at 4 n.4. I will follow that lead and likewise use the term "deaf." See also ECF No. 25 at 27-28, 8:24-9:24, Williams Dep. (explaining that most in the community prefer the term "deaf").
The individual plaintiffs are four of the approximately 800,000 deaf individuals living in Florida. ECF No. 1 ¶¶ 8-9. Plaintiff Michael Yelapi is a 56-year-old deaf St. Petersburg resident. ECF No. 4-1 at 24 ¶ 1, Yelapi Decl. He is fluent in ASL and prefers it as his primary language. Id. at 24 ¶ 2. He has been frustrated because without an ASL interpreter, he cannot fully understand information provided at the Governor's briefings. Id. at 24 ¶ 3. Closed captioning is too fast for him, and he finds it unreliable. Id. at 25 ¶¶ 4, 10.
Yelapi works as a Deaf and Hard of Hearing Service Coordinator, which means he is responsible for providing COVID information to other deaf citizens. Id. at 25 ¶¶ 5-6. When he could not understand information at a press briefing, he relied on other sources to gather the information for his clients and himself. Id. at 25 ¶ 7. This led to delays in his providing important information, including information about COVID testing, whether others should wear masks or social distance, and whether businesses were open. Id. at 25 ¶ 8. Yelapi believes he would better understand the briefings with televised ASL interpretation. Id. at 25 ¶ 11.
Plaintiff Patricia Sanchez is a 56-year-old deaf Tampa resident. Id. at 27 ¶ 1, Sanchez Decl. She is fluent in Spanish, but her preferred, primary language is ASL. Id. at 27 ¶¶ 2-3. She could not understand the Governor's news briefing on "Reopening Florida" and had to rely on the newspaper and other sources for the information. Id. at 28 ¶ 6. Sanchez has found that closed captioning is not always accurate or reliable, and she believes she would better understand the Governor's briefings if they were televised with an ASL interpreter. Id. at 28 ¶¶ 10-12.
Plaintiff Jaime Mariona is a 45-year-old deaf Kissimmee resident. Id. at 30 ¶ 1, Mariona Decl. He is fluent in ASL, his primary language. Id. at 30 ¶ 2. He has watched the Governor's press briefings since March and has complained to the Governor's office about the lack of ASL. Id. at 30 ¶¶ 3-4. Mariona felt overwhelmed when he was unable to understand the Governor's briefings, including those about the State's reopening. He fears he will miss important health and safety information without an ASL interpreter. Id. at 31 ¶¶ 5-7. He finds closed captioning unclear and hard to follow, and he believes he would understand the briefings better through ASL. Id. at 31 ¶¶ 8-9.
Plaintiff Julia Michalka is a 48-year-old deaf Tampa resident. Id. at 32 ¶ 1, Michalka Decl. Her first language is Slovakian, but she also is fluent in ASL, her preferred language. Id. at 32 ¶¶ 2-3. Michalka has watched several of the Governor's briefings but has had difficulty understanding them. Id. at 32-33 ¶¶ 4-6. Closed captioning is not always available, and, even if it were, she does not trust it and considers it unreliable and inaccurate. Id. at 33 ¶ 7. Like Yelapi, Michalka works with deaf Floridians. Some of them only communicate with ASL and have had difficulty understanding the Governor's briefings. Id. at 33 ¶¶ 8-10. Michalka has conducted her own research to find what she missed at briefings, sometimes learning information 24 to 48 hours after it was announced. Id. at 33 ¶¶ 11-12. Michalka believes she could better understand the Governor's briefings if they included a televised ASL interpreter. Id. at 33 ¶ 13.
C. The Governor's Office Does Not Control How the Media Covers His Press Briefings.
The Governor's office itself does not control how (or if) media companies broadcast the briefings. ECF No. 21 at 14-15. For example, if the Governor conducts a briefing with an ASL interpreter, a news network may broadcast the briefing at a wide angle showing the Governor and the interpreter together in the same box, or it may show the Governor and the interpreter in separate boxes (with a closer view of each), or it may not display the interpreter at all, focusing solely on the Governor. See id.
The Florida Channel, which the State funds, broadcasts live and recorded programing of public events, including the Governor's press conferences. ECF No. 21 at 42 ¶ 2, Switzer Decl. Based in Tallahassee, The Florida Channel records and broadcasts the Governor's briefings at the Capitol. Id. at 43-44 ¶ 4. That broadcast can include an ASL interpreter if one is present. Id. at 43-44 ¶ 4. When covering the Governor's out-of-Tallahassee conferences, though, The Florida Channel merely retransmits feeds other networks provide. Id. at 44 ¶ 5. Therefore, if those networks' feeds do not display an ASL interpreter, The Florida Channel's broadcast will likewise display no ASL interpreter. Id.
The Florida Channel provides closed captioning for all the Governor's press briefings, regardless of location. Id. at 43 ¶ 3. According to Plaintiffs' expert, closed captioning is an inadequate substitute for ASL. First, it will not help deaf individuals who are not fluent in English. ECF No. 4-1 at 42 ¶ 6, Williams Decl. (ASL is not derived from English but instead originates from French and Native American Sign Language traditions. ECF No. 25 at 36-38, 17:25-19:17, Williams Dep.) Many deaf individuals use ASL as their primary language, and their understanding of English varies. Second, even assuming a deaf person has some English fluency, many in the deaf community are illiterate or have below-average reading abilities. Plaintiffs' expert says the average deaf high school graduate reads below the 6th grade level. ECF No. 4-1 at 43 ¶¶ 8-9. In fact, the median reading level for a deaf adult in the United States is that of a 4th grader. ECF No. 25 at 32-33, 13:15-20, 14:7-15:10. Yet closed captioning for emergency messages often reads above a 6th grade level, and information from other sources is often at still higher levels. ECF No. 4-1 at 42 ¶ 8.
* * *
With these facts—established for purposes of the preliminary injunction motion—I now turn to the applicable law.
II. A PRELIMINARY INJUNCTION REQUIRES A SUBSTANTIAL SHOWING.
A preliminary injunction is an extraordinary and drastic remedy, and no court may grant one unless the movant clearly establishes entitlement. ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd. , 557 F.3d 1177, 1198 (11th Cir. 2009). Because preliminary injunction motions often turn on undeveloped records, it can be difficult for movants to meet this high standard. Siegel v. LePore , 234 F.3d 1163, 1175 (11th Cir. 2000) (en banc). Accordingly, preliminary injunctions are usually the exception, not the rule. Id. at 1176. To obtain a preliminary injunction, a movant must clearly establish (1) a substantial likelihood of success on the merits, (2) that it will suffer irreparable injury without an injunction, (3) that the threatened injury outweighs damage the injunction may inflict on the nonmovant, and (4) that the injunction would not be adverse to public interest. ACLU , 557 F.3d at 1198. A failure to satisfy any one factor is fatal. Id.
The first requirement—that the plaintiff show a substantial likelihood of success on the merits—is "most important." Schiavo ex rel. Schindler v. Schiavo , 403 F.3d 1223, 1232 (11th Cir. 2005). It is also where plaintiffs suffer "the most common failure." ACLU , 557 F.3d at 1198. And that is where Plaintiffs fail here. For at least two reasons, Plaintiffs have not shown a substantial likelihood that they will succeed on the merits.
III. PLAINTIFFS HAVE NOT SHOWN A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS.
Plaintiffs need not show with certainty that they will prevail, but they must show that it is "likely or probable." Schiavo , 403 F.3d at 1232. There are at least two independent ways they have failed to do so. First, they have not shown that their injury is likely traceable to—or redressable by—the Governor. This means they have not shown a likelihood that they have standing. Second, they have not shown a likelihood that they will prove that the Governor's communications with the deaf are not as effective as his communications with hearing individuals, or that Plaintiffs' requested modification is a reasonable one for purposes of the ADA or the Rehabilitation Act.
A. Plaintiffs Have Not Shown a Substantial Likelihood That They Have Standing.
Article III of the Constitution limits federal courts' jurisdiction to "Cases" and "Controversies." Lujan v. Defs. of Wildlife , 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is essential to the case and controversy requirement; it is an "indispensable" part of every plaintiff's case. Id. at 561, 112 S.Ct. 2130. Plaintiffs cannot show a likelihood of success on the merits without showing they likely have standing. See Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) ("[A] party who seeks a preliminary injunction must show a substantial likelihood of standing. A party who fails to show a substantial likelihood of standing is not entitled to a preliminary injunction." (marks and citation omitted)).
To have standing, a plaintiff must first have suffered an "injury in fact," which is the "invasion of a legally protected interest" in a manner that is "concrete and particularized" and not "conjectural" or "hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. Second, there must be a "causal connection" between the injury and the alleged misconduct such that the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. (cleaned up). Third, it must be "likely"—and not speculative—"that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130.
The Governor challenges Plaintiffs' standing, arguing that he has not caused Plaintiffs' alleged injury and that he is not capable of fixing it. ECF No. 21 at 10-15. He asserts that the nonparty broadcast companies' intervening role means they—and not he—are responsible for any injury. And, he contends, even if he provided an ASL interpreter at all press conferences, Plaintiffs would not benefit unless the nonparty broadcast companies decided to include that interpreter in the broadcast frame.
The Governor also contests Plaintiffs' standing on Lujan 's first prong—whether Plaintiffs have suffered any real injury. ECF No. 21 at 12-13. But his standing argument focuses primarily on the traceability and redressability prongs. At this stage, Plaintiffs have shown enough as to real injury for standing purposes. Whether their asserted injury demands a remedy under the ADA or the Rehabilitation Act is, of course, a separate question.
The Governor separately argues Eleventh Amendment immunity. ECF No. 21 at 4-10. The Eleventh Amendment generally protects states from suit in federal court. U.S. Const. amend. XI. Congress can abrogate this immunity, and it expressly did so in enacting Title II of the ADA. The Governor argues, though, that Congress's abrogation was constitutionally invalid, at least in part. But even if the Governor were correct on this point, that would not be a basis to deny the injunction. Regardless of Eleventh Amendment immunity, Plaintiffs could pursue their claims against the Governor under Ex parte Young , 209 U.S. 123, 159, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which allows suits for prospective injunctive relief against state actors in their official capacities. See Bd. of Trustees of Univ. of Alabama v. Garrett , 531 U.S. 356, 374 n.9, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (finding no valid Eleventh Amendment abrogation but noting that prospective injunctive relief was nonetheless available under Ex parte Young ); see also Summit Med. Assocs., P.C. v. Pryor , 180 F.3d 1326, 1336-38 (11th Cir. 1999).
Plaintiffs' evidence does little to challenge these arguments or establish that their injury is traceable to—or redressable by—the Governor. First, no Plaintiff attended or plans to attend any press conference. See generally ECF No. 4-1 at 24-34, Plts.' Decls. Instead, Plaintiffs trace their injury to the lack of ASL interpretation on television or online streaming services. But as explained above, the Governor's office does not control these services. Indeed, there is no evidence that the Governor's office controls whether the briefings are covered at all.
In that regard, this case is unlike some others involving auxiliary aids. In National Association of the Deaf v. Florida (NAD ), for example, the deaf plaintiffs sued (among others)The Florida Senate, The Florida House, and the operator of The Florida Channel, WFSU, seeking an order requiring them to provide closed captioning alongside their streaming services. 945 F.3d 1339, 1344-45 (11th Cir. 2020). Those defendants, though, provided their own livestreaming of various events taking place at the state legislature. Id. at 1345. So the NAD plaintiffs could directly trace their injury—the lack of closed captioning—to the defendants who failed to provide it. See id.
Likewise, in a very recent decision granting an injunction requiring ASL interpretation at White House COVID briefings, there was no traceability problem. See National Association of the Deaf v. Trump , No. CV 20-2107 (JEB), 486 F.Supp.3d 45 (D.D.C. Sept. 9, 2020). The plaintiffs there could trace their alleged injury directly to the White House, which broadcasts and streams its press conferences on its website and YouTube channel, id. at 47–48.
This decision issued September 9, 2020, and Plaintiffs promptly filed it as supplemental authority. ECF No. 28.
The cases Plaintiffs cite on standing are equally unavailing. In Department of Commerce v. New York , the Court had substantial evidence to show that the plaintiffs' injury was traceable. The Court could predict with some certainty how respondents would react to a citizenship question because there was a trial in which evidence was presented on this very issue. ––– U.S. ––––, 139 S. Ct. 2551, 2565-66, 204 L.Ed.2d 978 (2019). Here, there is no evidence that would support any finding on how nonparty broadcasters would respond.
This case is unlike TVA v. EPA , 278 F.3d 1184, 1206 (11th Cir. 2002), opinion withdrawn in part sub nom. TVA v. Whitman , 336 F.3d 1236 (11th Cir. 2003), which Plaintiffs cite as well. Setting aside the exceedingly complex factual background of TVA , which involved numerous utility providers and the Tennessee Valley Authority opposing an EPA compliance order under the Clean Air Act, that case was at the pleading stage, where the petitioners' claims faced a motion to dismiss. Id. Plaintiffs here do not benefit from the lenient pleading standard; they bear the burden of presenting evidence in their favor. Siegel , 234 F.3d at 1176.
Plaintiffs argue it is "highly likely" that networks will display an interpreter if one is provided. ECF No. 25 at 5. But they offer no evidence in support. And the limited record they do provide actually supports the opposite conclusion. Plaintiffs' expert testified about South Carolina's experience, where the governor provided ASL interpretation and sought to ensure that broadcasters displayed the interpreter. But rather than assume the broadcasters would automatically display the ASL interpreter, the South Carolina Governor convinced broadcasters to do so by threatening to take away their press privileges if they did not. ECF No. 25 at 60, 41:15-23. The logical takeaway from this is that without some form of coercion, news networks will not always display an ASL interpreter in their broadcast. This is consistent with the commonsense notion that not all news outlets cover public events the same way.
Plaintiffs acknowledge they do not seek an order requiring nonparty media companies to display an ASL interpreter if one is provided. And as noted in Trump , "[the] Court cannot order Defendants to require television broadcast outlets to carry video of an ASL interpreter when showing the coronavirus briefings; indeed, what private broadcasters choose to air, when, and in what format is beyond the Court's control." 486 F.Supp.3d at 60. So instead, Plaintiffs' counsel indicated they would work with networks, advocating for their displaying the ASL interpreter if provided. Hrg. Trans. at 22-24. And perhaps networks would respond positively. But the need for advocacy on that point only highlights the fact that Plaintiffs have not shown that the remedy sought (in-frame ASL on television) is likely to flow from an injunction ordering the Governor to provide ASL interpretation at his briefings. Cf. Bennett v. Spear , 520 U.S. 154, 168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (noting, for standing purposes, the difference between injury caused by "independent action of some third party not before the court" and an "injury produced by determinative or coercive effect upon the action of someone else" (second emphasis added)).
All citations to the hearing transcript are to the rough draft.
In short, Plaintiffs have not shown a likelihood that they can establish traceability or redressability, essential elements of standing. See Jacobson v. Fla. Sec'y of State , 974 F.3d 1236, 1252-58 (11th Cir. 2020) (finding no standing when plaintiffs could not trace their injury to the Florida Secretary of State, who also lacked authority to redress the injury); Lewis v. Governor of Alabama , 944 F.3d 1287, 1296-1306 (11th Cir. 2019) (finding employees lacked standing to sue state attorney general when their employers were responsible for unpaid wages, not the attorney general). This means Plaintiffs have not demonstrated they likely have standing.
Whether Plaintiffs' claims should be dismissed for lack of standing under Rule 12(b)(1) is a separate question, not yet ripe. "[A]n inability to establish a substantial likelihood of standing requires denial of the motion for preliminary injunction, not dismissal of the case. Whether a party's claim requires dismissal because of an inability to establish standing depends on the stage of the litigation." Food & Water Watch, Inc. , 808 F.3d at 913 (citations omitted).
B. Plaintiffs Have Not Shown That the ADA or Rehabilitation Act Require ASL Interpretation at All Press Conferences.
Aside from standing, there is another reason why Plaintiffs have not shown a likelihood of success on the merits: They have not shown that the law requires an ASL interpreter at every press briefing.
Plaintiffs' claims turn on Title II of the ADA and § 504 of the Rehabilitation Act. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. The Rehabilitation Act similarly provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). For our purposes, both laws have the same substantive requirements. Cash v. Smith , 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000).
First, there is no dispute that the individual plaintiffs and many of DRF's constituents are qualified individuals with disabilities. Hrg. Trans. at 41. The question is whether these statutes likely require ASL in the context Plaintiffs seek it.
Federal regulations require a public entity, like the Governor's office, to provide certain modifications to accommodate disabilities. To begin, a public entity must "make reasonable modifications" to its practices and procedures when "necessary to avoid discrimination on the basis of disability"—except that none is required if "the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130.
In addition, public entities must "take appropriate steps to ensure that communications with ... members of the public ... with disabilities are as effective as communications with others. " 28 C.F.R. § 35.160(a)(1) (emphasis added). The entities must "furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." 28 C.F.R. § 35.160(b)(1). Qualified interpreters suffice, but so do "closed caption decoders; open and closed captioning, including real-time captioning;" "written materials;" and "other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing." 28 C.F.R. § 35.104(1). Communications need not be identical, just equally effective. See, e.g. , 45 C.F.R. § 84.4(b)(2) ; 6 C.F.R. § 15.30(b)(2).
From all of this, two points are clear: One, the law does not require ASL interpreters whenever requested. See Martin v. Halifax Healthcare Sys., Inc. , 621 F. App'x 594, 602 (11th Cir. 2015) ("[W]e have also warned that not every denial of a request for an auxiliary aid precludes summary judgment or creates liability under the ADA or the Rehab Act. Otherwise, a requested service would automatically be transformed into a ‘necessary’ service merely by the fact that it was requested." (citation omitted)); Loye v. County of Dakota , 625 F.3d 494, 499 (8th Cir. 2010) (rejecting argument "that Title II of the ADA demands compliance with Plaintiffs' literal reading of this regulation [ 28 C.F.R. § 35.160 ]"); see also Bravin v. Mount Sinai Med. Ctr. , 186 F.R.D. 293, 302 (S.D.N.Y. 1999) ("[Defendant] is correct that the RA does not necessarily require public entities to provide ASL interpreters to deaf individuals in every instance, and that it was required only to provide ‘reasonable and effective’ means of communication."), opinion vacated in part on reargument , 58 F. Supp. 2d 269 (S.D.N.Y. 1999) ; Hrg. Trans. at 16 (Plaintiffs' counsel acknowledging that ASL is not required whenever the Governor is speaking). And two, the answer always turns on a fact-intensive analysis. Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 342 (11th Cir. 2012) (collecting cases showing that whether an effective auxiliary aid was provided is "inherently fact-intensive"); see also Bircoll v. Miami-Dade Cty. , 480 F.3d 1072, 1085 (11th Cir. 2007) ("The reasonable-modification inquiry in Title II–ADA cases is a highly fact-specific inquiry." (marks and citation omitted)).
To determine Plaintiffs' likelihood of success on the merits, the court must consider (1) whether the modification they seek is reasonable and (2) whether the Governor's communications have been sufficiently effective. Plaintiffs rely heavily on a recent case from New York, Martinez v. Cuomo , 459 F.Supp.3d 517, 527 (S.D.N.Y. 2020). In Martinez , the plaintiffs sought and received an injunction against New York's Governor, requiring him "to immediately implement in-frame ASL interpretation during his daily press briefings." Id. at 527. Plaintiffs' complaint there—like Plaintiffs' complaint here—was focused on COVID-related press briefings.
Plaintiffs say this case is just like Martinez. But Martinez is different in several ways. First, it appears New York's Governor conducted no briefings with ASL. Id. at 519-22. Florida's Governor, by contrast, has conducted Tallahassee briefings with ASL. ECF No. 21 at 3. (Plaintiffs' focus, therefore, is on the subset of press conferences held elsewhere.) That the Governor conducts many (perhaps most) briefings with an ASL interpreter factors significantly into the fact-intensive consideration of whether there is effective communication overall. Indeed, Plaintiffs acknowledged at the hearing that not all press briefings demand ASL, Hrg. Trans. at 16, 19; the need depends on the context, the nature of the information delivered, and alternate means of receiving it. If, for example, an out-of-Tallahassee briefing (without ASL) merely repeats information already delivered at a Tallahassee briefing (with ASL), it would be difficult to argue communications with those needing ASL were not "as effective as communications with others." In fact, it appears the Martinez plaintiffs viewed the Florida Governor's sometimes-ASL practice as sufficient; they alleged and argued that New York was the only state whose governor did not provide ASL. 459 F.Supp.3d at 521-22 ; see also Trump , 486 F.Supp.3d at 49 (noting that "[u]nlike the governors of all fifty states," the White House provided no ASL interpretation).
Second—and relatedly—several Martinez plaintiffs lacked internet access, meaning they could not find online the information they missed at the briefings. 459 F.Supp.3d at 524-25. Here, on the other hand, several Plaintiffs have referenced their ability to find the relevant information online or from newspapers and other sources. ECF No. 4-1 at 25 ¶¶ 7, 9, Yelapi Decl.; id. at 28 ¶¶ 6, 8, Sanchez Decl.; id. at 33 ¶ 12, Michalka Decl. Some, to be sure, included general statements in their declarations that they worried about missing information (id. at 28 ¶ 7, Sanchez Decl.; id. at 31 ¶ 7, Mariona Decl.), about delays in receiving information (id. at 25 ¶ 9, Yelapi Decl.; id. at 33 ¶ 12, Michalka Decl.), or about having to receive it from secondhand sources (id. at 28 ¶ 6, Sanchez Decl.). But they were light on specifics. In short, Martinez and Trump —neither of which is binding—turn on different factual records.
The cases the Governor relies on are factually distinct too—far more so, in fact—but they do highlight that every case requires a fact-intensive inquiry and that there can be adequate communication without ASL. The Governor first points to Loye , in which the court rejected ADA and Rehabilitation Act claims for ASL interpretation. ECF No. 21 at 18-19, 22-24, 26, 30. In Loye , local officials relocated residents into temporary housing after sudden environmental contamination. 625 F.3d at 495-96. Deaf residents sued the county for not providing an ASL interpreter at meetings related to the contamination and relocation. Id. The court rejected their claims. It noted that Title II did not require an interpreter at every meeting. Id. at 499. And it determined that "even if at times delayed, the information communicated during the large-group meetings was not so time-sensitive that the delay denied Plaintiffs effective communication and meaningful access to the services being provided." Id. As applied here, Loye stands for the unremarkable (and undisputed) proposition that ASL interpretation is not always required and that communications with deaf individuals can be as effective (for ADA purposes) even without it.
The Governor also points to Bircoll. In that case, a police officer stopped a deaf driver suspected of being intoxicated. The officer conducted a sobriety test, but the deaf driver had trouble understanding the officer's instructions. 480 F.3d at 1076-78. Later, at the police station, officers did not provide an interpreter. Id. at 1079-80. The driver sued, alleging that the county failed to make a reasonable accommodation. Id. at 1085. The court rejected the claim. It reiterated that "[t]he reasonable-modification inquiry in Title II–ADA cases is ‘a highly fact-specific inquiry’ " and concluded that "[i]n many circumstances, oral communication plus gestures and visual aids or note writing will achieve effective communication. In other circumstances, an interpreter will be needed." Id. at 1085,1087 (marks and citation omitted); accord id. at 1087-88 (noting that the communications were "not so ineffective that an oral interpreter was necessary to guarantee that Bircoll was on equal footing with hearing individuals") (citation omitted); see also Martin , 621 F. App'x at 597-98, 601-03 (finding no failure to provide effective auxiliary communication to deaf patient when doctors used a combination of ASL, lipreading, written notes, and graphics to communicate); Seremeth v. Bd. of Cty. Comm'rs Frederick Cty. , 673 F.3d 333, 340-41 (4th Cir. 2012) (holding that police communications with the deaf plaintiff in relying on an ASL trainee and father to interpret were reasonable under the circumstances when it would have taken an hour for an ASL interpreter to arrive at the scene).
Loye and Bircoll hold what we already know: that the specific facts of each case are critical. Yet here, we are short on the critical facts. Plaintiffs claim that the Governor will deliver important information at future press conferences, and this is undoubtedly true. But without evidence showing more specific details, there can be no determination as to whether ASL is required. For example, what portion of the conferences will include ASL? Where (other than the briefings) and in what other forms will the information be available? How critical will the immediate receipt (as opposed to delayed receipt) of the information be? How complex will the delivered information be? And so forth. In short, Plaintiffs need more precision before they can secure prospective relief on a matter that demands such a fact-specific inquiry.
Notably, other than Martinez and Trump , Plaintiffs have identified no case in which a court has enjoined officials to provide ASL at press conferences or in other public discussions. Most cases are backward looking, where courts can evaluate the actual facts as they were. See, e.g., Bircoll , 480 F.3d at 1075 (arising after arrest); Martin , 621 F. App'x at 596 (arising after hospital stay); Liese , 701 F.3d at 336 (same); Loye , 625 F.3d at 495-96 (arising after decontamination). For the prospective relief Plaintiffs seek, it is not enough to say that the Governor must provide ASL at all COVID-related press conferences, at all important press conferences, at all press conferences involving emergencies, or the like. The precise facts will always matter. See Bircoll , 480 F.3d at 1087 (noting that in some circumstances "an interpreter will be needed"; in some, not).
It is easy to imagine press conferences for which the law would not require an ASL interpreter. Again, Plaintiffs acknowledged interpreters would not always be necessary. If the specific information delivered was already otherwise widely available, it might be that despite no ASL, there are "other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing." 28 C.F.R. § 35.104(1). If new important matters are announced, but the same information is later transmitted in another viable form, it might be that the delay is not unreasonable. Cf. Loye , 625 F.3d at 499. If emergency information is delivered on short notice, insufficient time to secure an ASL interpreter may make the lack of accommodation reasonable. Cf. Bircoll , 480 F.3d at 1086 ("We emphasize that terms like reasonable are relative to the particular circumstances of the case ...."). Yet Plaintiffs seek a blanket injunction that would cover essentially all future press conferences—relief inconsistent with the fact that "[w]hat is reasonable must be decided case-by-case based on numerous factors." Id.
To be sure, Plaintiffs' requested relief has narrowed. Their Complaint sought a preliminary injunction requiring the Governor "to provide live televised in frame ASL interpretation at all briefings designed to reach residents of Florida. " ECF No. 1 at 25 (emphasis added). Their preliminary injunction motion sought the same thing. ECF No. 4 at 33. Thus, despite framing much of their Complaint and their evidence around COVID-related information (and to a lesser extent hurricanes), they originally requested an injunction that would apply to all press briefings. Their Reply Brief then referenced a narrower injunction, saying they seek an order requiring the Governor "to provide ASL interpreters at all briefings that concern COVID-19 and hurricanes." ECF No. 25 at 4. At the hearing, when asked for clarification, counsel indicated Plaintiffs sought an injunction that would be specific to press briefings about COVID and hurricanes, or essentially any instance in which the Governor had declared a state of emergency. Hrg. Trans. at 12-14.
Plaintiffs' struggle to articulate the precise relief they seek only highlights the difficulty of crafting an injunction that will address future, "highly fact specific" situations. It also perhaps explains why—other than Martinez and Trump —Plaintiffs have cited no cases prospectively ordering ASL interpretation at public events. (And in Trump , incidentally, the court has not decided the specific remedy, recognizing these difficulties. 486 F.Supp.3d at 47–48, 60–61.)
Left unanswered are these, among other questions: How would a press briefing be defined? Is there a difference between a press conference featuring a podium and microphones and a hallway press gaggle without? Does a press conference on a non-COVID topic become a COVID press conference if the press asks COVID-related questions? If the Governor has urgent, time-sensitive information to convey, must he delay delivering it until an ASL interpreter is available?
An injunction leaving these questions open is no option. Any injunction must "state its terms specifically" and "describe in reasonable detail ... the act or acts to be restrained or required." Fed. R. Civ. P. 65(d)(1). This specificity requirement reflects the serious consequences that flow from violating an injunction. Fla. Ass'n of Rehab. Facilities, Inc. v. State of Fla. Dep't of Health & Rehab. Servs. , 225 F.3d 1208, 1223 (11th Cir. 2000). Due Process demands that "[a]n injunction must be framed so that those enjoined know exactly what conduct the court has prohibited and what steps they must take to conform their conduct to the law." Id. (citations omitted). Requiring this level of detail is "designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." S.E.C. v. Goble , 682 F.3d 934, 950 (11th Cir. 2012) (quoting Schmidt v. Lessard , 414 U.S. 473, 476, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974) ).
At the end of the day, whether ASL interpretation is required at any particular public event turns on a fact-intensive inquiry. It demands an examination of many factors. And on this record, Plaintiffs have not shown that they are substantially likely to succeed on the merits as to the relief they seek.
IV. CONCLUSION.
There is no question that those in the deaf community need access to important information, just as others do. And there is no question that the difficulties deaf Floridians face are exacerbated by complications COVID has introduced into everyone's lives. But the legal issue here is whether Plaintiffs have shown entitlement to a preliminary injunction, and I conclude they have not.
Plaintiffs have not shown a likelihood of success on the merits. This is so because they have not shown they likely have standing. And this is so because they have not shown that the Governor's communications with them have not been as effective as communications with others, or that the requested relief is a reasonable modification of current practices and policies. Either independently or together, these failures mean Plaintiffs have not shown a likelihood of success on the merits. The motion therefore cannot succeed, so I need not address the remaining preliminary injunction factors. See ACLU , 557 F.3d at 1198 (noting that failure on any one factor is fatal).
The preliminary injunction motion (ECF No. 4) is DENIED. A scheduling order will issue separately.
SO ORDERED on September 15, 2020.