James Gattuso on ADA on National Review Online

December 5, 2002, 9:00 a.m.

Internet: 1, Lawyers: 0 The ADA in cyberspace.

By James L. Gattuso

Common sense may seem in short supply in today's litigation-happy world,
but it got a boost recently from - of all places - Florida, where a federal
judge tossed out a lawsuit claiming that Southwest Airlines' website
violated the Americans with Disabilities Act. The decision is good news for
the Internet, and for consumers, because it blocked what likely would have
become regulation-by-litigation of website design.

The lawsuit, brought by Access Now, an ADA-advocacy group, claimed that
Southwest violated the act because its website was insufficiently
accessible to blind persons. Specifically, the plaintiffs faulted Southwest
for not providing text in a format that could be read by synthesized-speech
technology.













What about the fact that the relevant section of the act applies only to
"places of public accommodation"? No problem, said the plaintiff's lawyers:
Certainly "place" can't be limited to the narrow confines of the physical
world. Cyberspace, too, is a place.

Unfortunately for the plaintiffs, although the ADA is famous for its
ambiguity, its text is pretty darn specific on this point. It actually
lists what it considers a "public accommodation."

It includes inns, hotels, motels "or other place[s] of lodging." Also
restaurants, bars, movie theaters, concert halls, auditoriums, bakeries,
grocery stores, laundromats, dry cleaners, banks, and so on. The drafters
practically gave specific addresses. And not a website among them.

But the lawyers maintained - presumably with a straight face - that
Southwest's website was covered under the Act as a place of "exhibition,
display and a sales establishment." Yet the judge, Patricia Seitz of the
U.S. Southern District of Florida, didn't buy it.

Apparently an old-fashioned judge, Seitz even used Latin, citing the
doctrine of ejusdem generic: "where general words follow a specific
enumeration of persons or things, the general words should be limited to
persons or things similar to those specifically enumerated."

Or, as they say in preschool, "one of these things is not like the other."

Is this a quirk in the law? A loophole in the ADA that policymakers should
patch? No. There are good reasons not to drag cyberspace under the ADA.

Such regulation is likely to impose considerable burdens on website owners
- exactly the wrong prescription for the ailing Internet economy, as well
as for consumers.

ADA advocates say the costs of making sites accessible are minimal. But
where that's so, companies tend to act voluntarily. After all, they make
money by helping, not hindering, potential customers.

But with requirements ranging from providing transcripts for audio files to
checking color contrasts, the burden can be substantial, and the costs can
add up quickly. That could be why the list of sites not meeting
accessibility standards includes not just many airline sites, but even some
government sites, such as that of the Commission on Civil Rights.

Still, ADA advocates argue that if physical establishments can learn to
live with the additional costs, cyberspace operations can too. That's too
complacent a view. Apart from lawsuit-happy trial lawyers, few see the
current ADA as a model of perfection. If applied to the economically
fragile digital world, the potential damage would be considerable.

The Manhattan Institute's Walter Olson warns, for instance, that web-design
creativity and spontaneity could be stunted, as publishers feel constrained
to use only officially accepted tools. Amateur websites would be winnowed
as legal and technical rules limit the art to professionals. So much for
"blogs."

What about the First Amendment implications? The Internet is foremost a
tool of communication - but ADA mandates could lead to regulation of
content unimaginable for newspapers or magazines. Current guidelines, for
instance, say that sites should "use the simplest and most straightforward
language that is possible," raising the prospect of judges sitting in the
editor's chair.

None of this is to say that making the Internet accessible to the disabled
isn't a worthy goal. It is, and efforts to do so where practical are to be
applauded. But such efforts must be voluntary; we shouldn't be subjecting
the Internet to regulators and trial attorneys. Judge Seitz was correct:
The ADA does not - and should not - apply to cyberspace.

- James L. Gattuso is a research fellow in regulatory policy at the
Heritage Foundation.


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