Several other sources have reported on recent legislation in California that would establish WCAG 2.1 AA as the minimum accessibility requirement for websites that do business in California.¹ The bill is a disaster in many ways, but rather than look at its many individual flaws I think it is useful to ask whether the entire law is invalid as an improper attempt to regulate interstate commerce. That’s right, the “dormant commerce clause” could make this and any similar effort by other states invalid.
The dormant commerce clause, for those who did not take Constitutional Law at some point in their lives, is a kind of mirror image of the Commerce Clause. The Commerce Clause – Article 1, Section 8, Clause 3 of the U.S. Constitution – gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The dormant commerce clause interprets this to mean that states cannot make laws that excessively burden interstate commerce; that is, only Congress can regulate interstate commerce and state laws that have the effect of regulating it are not valid.
The reach of the dormant commerce clause has been the subject of many Supreme Court decisions, so summarizing its reach is almost impossible. However, it would seem that it certainly includes any effort by the states to establish minimum accessibility requirements for websites. Here’s what the Supreme Court observed in 1989 about the dormant commerce clause:
First, the “Commerce Clause … precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” . . . and, specifically, a State may not adopt legislation that has the practical effect of establishing “a scale of prices for use in other states,” . . . Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State . . . . Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.
Even though CNN.com is a single website, the record before us shows that CNN could enable a captioning option for California visitors to its site, leave the remainder unchanged, and thereby avoid the potential for extraterritorial application of the DPA.
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¹ The most thorough analysis is found in “New California Assembly Bill on Website Accessibility Could Result in a Lawsuit Tsunami” published by Seyfarth Shaw.
² There is an argument to be made that the ADA will preempt any state laws concerning website accessibility as soon as DOJ adopts accessibility standards applicable in all fifty states. That argument seems to be at least a few years away given DOJ’s very slow movement toward adoption such regulations.
In ADA website litigation failure can teach us as much as success, and the plaintiff’s failure in Tavarez v. Extract Labs, Inc., 2023 WL 2712537, at *2 (S.D.N.Y. Mar. 30, 2023) is no exception.¹ Before getting into the details, here’s a primer on the doctrine of “mootness.”
