Walter Olson, at Overlawyered, here and here, Amy Alkon and Hans Bader have gone to town on an Economist article about how the Americans with Disabilities Act may change the nature of the internet. Where once there were websites and blogs, there will soon be public accommodations.
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.
But that, of course, is speech. And the internets are a thing, even if only virtual.
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).
This happened to EdX, where MIT conceded an obligation to make online education accessible to people with disabilities. But then, I’m not MIT, and this ain’t EdX.
Many have argued that Twitter and Facebook have become the town square of the 21st Century, and as such, have a duty to the public to accommodate everyone. Sure, they are private enterprises, and as such are unconstrained by the First Amendment, and have only a virtual existence, and can’t make themselves wheelchair accessible.
But the analogy is a strong one, as a significant amount of dialogue, heck, life, happens online. To deprive people with disabilities of the opportunity to be present in these virtual town squares, to engage in discourse with others, is to deny them the ability to fully participate in society as it happens today.
Then again, the analogy falls short of perfect. These are businesses, not quasi-public entities. That they are successful in insinuating themselves into so many people’s lives doesn’t make them a shadow government, obliged to live by the rules for real governments.
But they have already demonstrated a willingness to morph into a public accommodation, offering to protect the emotionally challenged and intellectually limited by banning words and users who would hurt the feelings of its most fragile and sensitive users. As private entities, they are entitled to be as protective as they want to be, but as it mirrors the demands to protect the unduly delicate, it opens the door to accommodation for all.
But the Twitters is a big biz, and it has the ability to make and finance its choices. Not everyone does.
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.
And that’s where a place like SJ might be at risk. Much as I’ve gone out of my way to make the place inhospitable to any number of people who are challenged, mostly by the real labor of thinking, SJ remains on the internets and accessible to anyone who chooses to click on a link or type in the URL. If someone wants to read SJ, I can’t stop them.
I’ve always called this my home, and you, dear reader, are nothing more than a guest in it. You may disagree, as many have when informing me of my obligation to them, but I don’t care. This isn’t a democracy, and you don’t get a vote. I’ve tended to be harsh with people telling me what I must do for them, and they’ve tended to be deeply hurt by my lack of concern for their feelings. I can live with that.
But let’s be clear, there isn’t a chance in hell that I’m going to start making this blog wheelchair accessible. This isn’t a business. I earn no money from putting these letters on the screen for your amusement. And I’m barely interested enough to bother correcting my pervasive typos. You think I’m going to add closed caption or a small-word version of my posts?
What will be required of websites isn’t at all clear. Whether, or where, a line will be drawn between websites that are a public accommodation and private places like SJ is similarly unknown. But there is one thing that is abundantly clear. If someone at the Department of Justice informs me that SJ does not conform with the Americans with Disabilities Act, and must change its evil ways to become more publicly accommodating, I’m done with it.
Yes, I care about all of you, and I am very empathetic about the challenges people face due to disabilities. But the option here will be SJ with all its warts or no SJ at all.