Originally published on ADA Defense Law as Can an ADA website lawsuit violate the 1st Amendment?, Dec. 6, 2019: Can a website accessibility lawsuit violate a person’s first amendment rights of free speech? This is a question that has been intriguing me as the Courts have been increasingly generous in allowing these lawsuits to go forward. The lawsuits have been extremely unfair, even devastating for some defendants because there are no laws or regulations that create objective standards of accessibility compliance for websites.
While there are a set of privately published best-practice standards (WCAG), until recently, these standards have been largely ignored by website developers and makers of website products. Moreover, there is a huge amount of DIY in website publishing. For DIY’ers, WCAG standards are extremely complex. Moreover, because they are best-practices, they weren’t intended to be treated as laws to be enforced. Laws and regulations are minimum standards – standards which no one should fall below lest they experience the strong arm of the law. In contrast, best-practices are aspirational.
The people who file these lawsuits profit by forcing monetary settlements due to the tens of thousands (or more) of dollars it costs to defend against even a meritless lawsuit rather than by prevailing in a trial. It’s a twisted fact that lawsuits based on legal ambiguities are often more profitable than a lawsuit based on clear violations. These lawsuits tend to be cynical and mercenary. I’ve even seen a non-profit charity sued for website accessibility claims.
More than anything, websites are a form of communication. Some are platforms to advertise and sell products and services. Others are platforms for authorship – often called “blogs.” And some are a combination, containing articles and advertising – online newspapers and magazines. All these forms of speech are protected by the First Amendment, although commercial free speech generally enjoys a lesser level of protection, i.e., courts are more tolerant of regulation.
Imagine telling a protestor in a town square that she or he cannot chant, march, or carry a protest sign unless he also has a sign in braille and is accompanied by a person who translates the speech into sign language for the hearing impaired. That wouldn’t pass First Amendment muster because it would have a chilling effect on political free speech, the right of assembly, and so on. Political free speech enjoys the highest level of First Amendment protection. And so should non-commercial blogs. And so should news and magazine sites, notwithstanding that they sell advertising. And so should non-profit charities and educational institutes, notwithstanding that they may sell products or services to raise funds – at least until an intelligible and practical set of accessibility regulations are adopted. Such regulations must be such that they create a realistic “safe harbor,” i.e. immunity from these lawsuits.