On June 26 the Department of Justice announced that it had filed Statements of Interest in two lawsuits concerning access to online content. The suits were filed against Harvard (National Ass’n of the Deaf v. Harvard University et al, Case No. 3:15-cv-30023 in the United States District Court for the District of Massachusetts) and M.I.T. (National Ass’n of the Deaf v. Massachusetts Institute of Technology, Case No. 3:15-cv-300024 in the United States District Court for the District of Massachusetts). Both Statements of Interest make the same claim; that is, that all online content must be accessible to those with disabilities if offered by a “public accommodation.” The phrase “public accommodation” as defined in the statute includes any “place of education.”
The technical arguments advanced by the Department of Justice are not new, and have formed the basis of a number earlier lawsuits and investigations. The most important issue, however, is not technical. It is simply the threat to online freedom of expression posed by DOJ’s position that online content must be made accessible to those with disabilities. There is no such requirement for printed content like books, magazines and periodicals; however, print media are expensive to produce and distribute. For small groups and individuals the internet provides the best and cheapest way of engaging in political and social dialogue, and the DOJ’s position on accessibility is a direct threat to that dialogue.
Consider this assertion from the Harvard Statement of Interest:
“if [a] bookstore were hosting an author lecture on its website, it would have to provide auxiliary aids and services to participants who are deaf, such as closed captioning.”
Imagine the cost to a small independent bookstore trying desperately to compete with Amazon or chain stores. Creating a web interview with free software is relatively inexpensive and easy. Providing closed captioning would add a cost beyond what many independent bookstores could afford. The same problem extends to blogs that offer free information to the public, and to the vast array of information found on YouTube. One of the great benefits of the internet is that amateurs can master the skills needed to make their opinions known and share their knowledge. The DOJ’s interpretation of the ADA would destroy that benefit, leaving only those with large financial resources able to use the internet to inform and educate. Even an institution like Harvard, which has vast resources, might find it easier to simply shut down its free online education services rather than incur the considerable cost of making all of those services accessible through closed captioning.
Of course to date DOJ has generally taken on only the largest and richest internet content suppliers, leaving the impression, perhaps, that the millions of smaller content providers will escape. Unfortunately, the principles behind DOJ’s attack on Harvard and M.I.T. often apply with equal force to even the smallest internet content providers. The fact that DOJ might exercise some discretion deciding whom to prosecute will be of little comfort once the those who want to kill freedom of expression realize that they can sue small online content providers under the ADA. The “undue burden” exception to the auxiliary services requirement is of no help at all, because application of the exception requires a factual determination, and that cannot be reached without first spending tens of thousands of dollars defending a lawsuit. The effect of the DOJ position is to make free speech a privilege of the rich instead of a right for every citizen.
Accessibility for those with disabilities is an important societal goal, but the ADA was not written to advance that goal without considering the critical value of democratic discourse. The DOJ, as an advocate for the disabled, seems willing thoughtlessly to surrender freedom of expression in the name of accessibility. So far the Courts have resisted, but these recent Statements of Interest make it clear that DOJ has not given up on imposing ADA accessibility requirements on all online content, a result that would certainly stifle freedom of expression, taking away from ordinary citizens the voice the internet gives them, and consolidating the right to free speech to the rich and powerful.