Were I asked to pick the most significant developing story about federal regulation that the press has not really caught onto yet, I might nominate the Obama administration’s apparent intent to publish new interpretations of the Americans with Disabilities Act (ADA) requiring that website operators make their sites “accessible” to users who are blind, deaf, intellectually disabled, or lacking in motor skills, to name but a few categories. While disabled advocates have been pursuing such interpretations of the ADA for more than a decade, several adverse federal court decisions greatly slowed down their momentum; now, those precedents notwithstanding, the administration seems to have decided to throw its weight behind the proposition that websites, like brick-and-mortar restaurants or movie theaters, are “public accommodations” under an obligation to provide the online equivalent of ramps, rails, sign-language translators, captioning, and much, much, more.
I’ve been on this issue for a long time, and the other day at Overlawyered I assembled a few links on the re-emerging story. Now our friend Hans Bader of the Competitive Enterprise Institute has published an excellent write-up at CEI’s “Open Market” (also Examiner):
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 …
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.
When the regs come out, the associated public advocacy campaign will no doubt focus on very large web vendors (Wal-Mart, airlines, Amazon, Netflix, and so forth), who (it will be argued) can well afford to bring their e-commerce operations into line with accessibility prescriptions. But as the law is written, the same principles will be applied to smaller businesses’ websites and indeed to many small private sites whose primary purpose is writing, persuasion, or communication, at least where there is a commercial nexus such as ad revenue or an affiliate bookstore.
If you think this is an extremely bad idea, as I do, the time to educate yourself on the issue is now.