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Blind shoppers get green light to sue Target over website

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By Michelle Malkin  •  October 3, 2007 01:58 PM

I was flummoxed by this:

Target Corp., the second-largest U.S. discount store chain, lost a bid Tuesday to dismiss a lawsuit claiming the company’s website wasn’t accessible to the blind.

U.S. District Judge Marilyn Hall Patel in San Francisco rejected Target’s request to dismiss the case. She also certified the case as a class action, ruling that all legally blind people in the U.S. who have been denied access to services at Target stores because of deficiencies in the company’s website can join the suit.

Target has failed to use “technologically simple and not economically prohibitive” code embedded in websites allowing the blind to use software that vocalizes the content, according to court filings by the National Federation of the Blind.

The group filed the suit on behalf of Bruce Sexton, a UC Berkeley student who claimed that he couldn’t access some features of Target.com. “It was just gibberish for blind users trying to use the website,” said Larry Paradis, a lawyer for the group.

“Target has argued that no law — neither the Americans with Disabilities Act nor state law — could require it to make its website accessible to the blind,” Paradis said. “Today’s decision completely rejects Target’s argument.”

Can they really coerce businesses in this manner? Won’t the ultimate outcome be to discourage companies from operating websites altogether?

A few years ago, a blind litigant tried to force Southwest to revamp its website to accommodate the sight-impaired. That suit failed:

U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.

“To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards,” Seitz wrote in a 12-page opinion dismissing the case. “The plain and unambiguous language of the statute and relevant regulations does not include Internet Web sites.”

As Walter Olson at the always indispensable Overlawyered points out:

Existing federal court precedent, in the Southwest Airlines case, discourages the most far-reaching demands for web “accessibility”; the Target case, which is being heard before a judge who’s considered relatively liberal, is important because disabled-rights activists hope to use it to counter and eventually reverse the Southwest precedent (see Jan. 8, 2004).

Walter’s in-depth piece on “Access Excess,” reporting on a congressional hearing on the issue in 2000, is here. It concludes:

Disabled advocates talk a lot about the Web’s need for “universality,” but what’s going on here is in fact a retreat from universality on the vital issue of who among us gets to publish. What is the frontier of the fight over free expression? Whether the Brooklyn Museum gets a subsidy next year? Or whether users of the predominant mass medium of tomorrow will retain the right to select the verbal, audio, and visual palette and syntax in which they wish to communicate with the world? Imagine the outrage if the government told visual artists that they couldn’t use low-contrast colors or eye-straining optical effects. Yet pro-ADA panelists at the hearing repeatedly emphasized their position that the Constitution’s guarantee of free speech has no bearing whatsoever on this case; the First Amendment may prohibit officials from suppressing speech based on disfavored content, but in this case the rules are just going to control everyone’s speech alike, whatever its content. Are you feeling reassured yet? Or are you ready to join me in the alarmist camp?

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Related: Going after hybrid cars now, too.

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