First Amendment Menace: Obama Administration to Expand Americans with Disabilities Act over Websites?

Can websites be forced to change to accommodate the disabled — by using “simpler language” to appeal to the “intellectually disabled,” or by making them accessible to the blind and deaf at considerable expense?

Generally, the First Amendment gives you the right to choose who to talk to and how, without government interference. There is no obligation to make your message accessible to the whole world, and the government can’t force you to make your speech accessible to everyone, much less appealing to them. The government couldn’t require you to give speeches in English rather than Spanish to reach a larger number of listeners. And the Supreme Court once noted that the poem Jabberwocky is protected by the First Amendment, even though it makes no sense to most people.

But now, the Obama administration appears to be planning to use the Americans with Disabilities Act (ADA) to force many web sites to either accommodate the disabled, or shut down. Given the enormous cost of complying, many small web sites might well just go dark and shut down. The administration wants to treat web sites as “places of public accommodation” subject to the ADA, even though they are not physical places. Courts used to reject this argument when it was made just by disabled plaintiffs, but now that the Justice Department is making it, too, some judges are beginning to buy it, opening the door to trial lawyers surfing the web and sending out extortionate demand letters to every small business whose web site is not accessible to the blind (or perhaps too hard to understand for the mentally-challenged).

As Atlas’s Alexander Cohen notes, “the Department of Justice may soon issue regulations on website accessibility. Jared Smith, an accessibility consultant, even urges businesses to use simple language for the intellectually disabled.” (Bye, bye, speech similar to Shakespeare or the Gettysburg Address, with their archaic or flowery language that violates supposed best practices about how to write.)

As Cato Institute scholar Walter Olson earlier noted to Congress,

the ADA’s [expansive] application [is] a serious threat to the freedom, spontaneity and continued growth of the Web.  Indeed, it would be hard to find a better way to curb the currently explosive upsurge of this new publishing and commercial medium than to menace private actors with liability if they publish pages that fail to live up to some expert body’s idea of accessibility in site design.  Equally disturbing is the idea that private publishers may someday feel pressure to use only web authoring tools approved by official bodies, perceiving a risk of liability if they continue to use the earlier programs and homemade HTML fixes that are the current lingua franca of the web self-publishing world.   We would rightly recoil at the idea of letting government certify and approve the typewriters, tape recorders and cameras that news reporters use in their work.  We should be equally skeptical about official moves to certify as obligatory some authoring tools for HTML content. . .

What would happen if every technically literate American woke up tomorrow determined to publish on the Web in compliance with expert accessibility guidelines, or not at all? * Hundreds of millions of existing pages would be torn down.  Some of these would eventually be put back up after being made compliant.  Countless others never would.
* The posting of new pages, by the tens of millions, would screech to a near-halt.  A relatively few, mostly larger organizations that have made it up the accessibility learning curve would continue to publish, but everyone else (except for entities exempt from the ADA) would put publishing plans on hold while they trooped off to remedial tutorials, or at least sent their techies there.
* Amateur publishing, as by the owner of a small business or a community group that relied on volunteers, would become more of a legal hazard.  The tendency would be for more entities to turn their web publishing function over to paid professionals.
* Within the ranks of paid professionals, there would be a tendency to winnow out the inexpensive freelancers who can currently post rough-and-ready pages at low charge in favor of those who can certify that they have taken the requisite training to “unlearn” the common (and now to be disfavored) page-construction techniques that have been standard form for years.
* Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness.  To take but one example, a small town newspaper or civic organization might feel itself at legal risk if it put audio or video clips of the city council meeting online without providing text translation and description.  Such text translation and description are expensive and time-consuming to provide.  The alternative of not running the audio and video clips at all remains feasible, however, and that is the alternative some will adopt.

The defenders of expansive ADA interpretations say that the government’s compelling interest in eradicating discrimination against the disabled overrides any competing First Amendment rights. If this frightening argument is accepted, states that have disabled-rights laws even broader than the ADA — like public-accommodation laws that apply to private clubs and associations — will eventually try to impose their restrictions on the web sites of small non-profit groups, using such laws to silence non-profits because of their inability to design their web sites to accommodate every conceivable disability.

(Keep in mind that in states like New Jersey, even private college eating clubs and the Boy Scouts have been deemed public accommodations subject to state law — specifically, the New Jersey Law Against Discrimination — whose application to the Boy Scouts is partially overridden by the First Amendment, according to a sharply divided U.S. Supreme Court in a 5-to-4 ruling in Boy Scouts of America v. Dale.)

The Supreme Court once refused to let Massachusetts to restrict speech in a “public accommodation” — a parade — on the grounds that it was needed to provide equal access and prevent discrimination. As the Court emphasized, “Our tradition of free speech commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. . . The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis.” One hopes they would apply this principle to limit censorship imposed under disabilities-rights laws, but nothing in this world is certain.