First Amendment vs. Disabilities Act

(From Charles Platt) Is this a real threat, or just posturing? The ADA has already been extended far beyond the areas in which is was first designed to apply. I can certainly imagine regulations compelling web sites to be “equally accessible” to the disabled. Discussion here.

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5 Responses to First Amendment vs. Disabilities Act

  1. AlphaCentauri says:
    May 12, 2013 at 5:39 pm

    As one of the comments states, the rules refer to websites of entities that receive federal funds. Those entities are already pretty restricted in their right to free speech, lest some congressman decide some entire program should be de-funded for giving money to them.

    And in cases where they are using federal funds to provide services to taxpaying citizens, yeah, they should use language that is understood by the target audience. I am thinking about the situation of public notices being posted on websites instead of newspapers in many districts now. We’re not talking about poetic language; we’re talking about legal gobbledygook designed to conceal meaning. In that case, I’d want the rules to specify accessiblity to the able-bodied, as well.

    And I’d also want such notices to be indexed by search engines. (Careless — or crafty — use of images or javascript or noindex tags can make it less likely such notices will be noticed by citizens with an interest in what their government officials are planning.)

    • MKC says:
      May 13, 2013 at 8:52 am

      “the rules refer to websites of entities that receive federal funds”

      I don’t think so? Examples cited in the links are compelling access to internet shopping, like in this WSJ atricle and requiring closed-aptions in video and film, like in this article.

      This issue kinda’ punches me in the nuts by putting two things I really care about in a game of chicken.

      Okay. Two ways to skin this cat. You can argue it’s not speech, just economic regulation or argue it’s compelled commercial speech. (I think bifurcating SoRs between so-called “commercial speech” and “non-commercial speech” is hooey, but that’s another can o’ beans.)

      If it’s just economic regulation, then the analysis looks a lot like rational basis EPC review. See Lee Optical. Were outside the purview of the First Amendment. There’s a fair argument that this is often the case in these scenarios–it’s just regulating means of access to commercial agreements, not unlike regulating the means of access to pools located in hotels.

      Or this is compelled commercial speech, like compelling certain labels on cigarrette packaging. We’re in Central Hudson intermediate scrutiny territory. Is there an important interest (check), is this a particular source of the evil the policy is directed against (check), is this policy narrowly tailored (hmm).

      Narrowly tailored under intermediate scrutiny is a lot more loose than under strict scrutiny. From a pure normalist perspective, I think the analysis tends to look a lot like balancing. So–a court essentially would compare the burden on companies to the benefits realized by people with disabilities. It’s going to be a very fact specific inquiry–and it’s something coutrs are generally poorly equipped to deal with.

      In my head, I think that’s where I come down too–balancing. But then I think about the First Amendment and that someone already made that balancing decision.

      If you accept a different SoR for ecomonic speech, then I think this falls into a similar line. If you find that bifurcated SoR doctrine troublesome as I do, then that’s were the mischief is.

  2. CPlatt says:
    May 13, 2013 at 11:06 am

    While I realize that this will not be a popular viewpoint, I think the root of the problem is the Americans with Disabilities Act, which has had one unintended consequence after another. I don’t think this should ever have been a Federal law. It addresses an issue in interstate commerce? Oh really? No, it was just another ploy to round up some votes.

    I was fully disabled not long ago as a result of a freakish drug reaction that deprived me of the use of both my hands and my feet for two months. I had time in which to see the world from the perspective of a wheel chair. Yes, it was nice to find bathrooms where the door was wide enough to get the wheel chair in. But I have no doubt that this could have been achieved without legislation. Like so much clumsy social engineering, the ADA merely formalized a change in perception that was occurring anyway. Businesses would have adapted to please their disabled customers–and those that didn’t adapt would have lost their business.

    Same thing applies online. And speaking as an ex-disabled person, if there is the slightest conflict with the First Amendment, it seems extremely obvious which should prevail. The First Amendment protects my right to criticize the government (among other rights). Absolutely fundamental. Disability access seems trivial by comparison.

    • MKC says:
      May 13, 2013 at 12:40 pm

      I’m a former Cato intern, so I totally appreciate where you’re coming from and especially agree with the unintended consequences piece and the feel-good, vote wrangling. I also interned in a USAO and had to deal with some ADA-type issues there.

      I oftentimes think enforcement of the ADA has an effect opposite of its remedial purpose–but I concede that is not always the case. I am highly skeptical of ADA enforcement, yet there are good arguments on the other side, I think, that must be addressed.

      First, with the access to internet transactions issue–it’s a strong argument that this is regulating interstate commerce. The federalism interest doesn’t exist in the same way as, for example, when the Justice Department enforces a regulation requiring hotels to install lifts in their pools. The present issue may be something more like regulating the mail, highways and rivers. There really is no room for states to act like laboratories–only for individual merchants to do so–which leads to the second concession I have to make.

      Second, there’s a high initial cost to creating the infrastructure for these accommodations and that will likely keep many merchants out for a long while. I think, over time, advances in technology and entrepreneurs seeking to take advantage of a market need would make this more prevalent and even commonplace, but not at first. While I think central planning is a terrible economic policy, I have to concede that certain politically disempowered groups–like people with disabilities–currently experience significant burdens compared to people without disabilities when it comes to electronic commerce.

      Why is that a problem in the long run? I also have to concede that in a land where property rights are the be-all end-all, civil liberties can vanish. There is no First Amendment on private property, right? That is–unless you take a more expansive view of state action, perhaps including state action enforcing property rights. But that take is not currently in vogue, except perhaps under some state constitutions.

      So as a matter of policy, I can understand where the other side is coming from and agree that there are of course shortcomings to a more hands-off, market based approach. Nevertheless, even if intervention is ultimately warranted–which I’m highly skeptical about for a host of reasons–I think it’s too soon to do so. That should be one of the last tools to use, not among the first.

    • alpha4centauri says:
      May 14, 2013 at 11:52 pm

      The ADA had certainly had unintended consequences, favoring one type of disability over another (try to walk up a wheelchair ramp with a CAM boot on sometime!). It wasn’t written well and tried to fix more things than it realistically could, all in one fell swoop. But I don’t agree that businesses would have made changes anyway. The number of disabled people who are really excluded by barriers isn’t that great, and they often aren’t affluent people whose custom is sought after. Compare to vegetarian choices in restaurants: There aren’t many vegetarians, but there are a lot of groups of diners who include at least one vegetarian. It’s in restaurants’ best interest to offer a few attractive vegetarian entrees. Yet many restaurants offer nothing for vegetarians except salads or “vegetable plates” or unimaginative versions of regular entrees with some tofu tossed in. If the purchasing power of vegetarians hasn’t changed things, the purchasing power of people on disability compensation wouldn’t have done it.