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Washington Examiner
February 20, 2006

Blind to the First Amendment?

The Target discount chain is being sued by the National Federation of the Blind because the blind canít access Targetís Web site. They complain it lacks embedded text to describe graphic images and requires the use of a mouse to make purchases.

The underlying legal question is whether the Americans with Disabilities Act and similar state laws apply to Internet sites. These laws require wheelchair ramps, Braille elevator buttons and the like to give disabled people access to restaurants, hotels and other places of public accommodation.

But are private Internet sites "places of public accommodation" under the ADA? Courts differ. In 2002, a federal court in Florida ruled in a similar lawsuit against Southwest Airlines that the ADA applies only to physical "places." About the same time, a federal court in Georgia ruled that the Atlanta Metroís Web site violated the ADA because it wasnít accessible to the visually impaired.

Advocacy groups are pushing for regulations that put private Web sites squarely under the ADA. Foremost among them is the World Wide Web Consortium, which offers a labyrinth of technical tools and checkpoints for Web designers.

Illustrating W3Cís Priority 1 checkpoints (which "must be satisfied" to make a site accessible) is the injunction to avoid causing the screen to flicker because that can trigger seizures in people with photosensitive epilepsy. Video animations, says W3C, must be accompanied by explanatory text that can be translated by speech synthesizers.

Thereís nothing wrong, and a good deal right, with Web designers choosing to follow such guidelines. The core question is whether the law should require it. Those who think so argue that it costs little to make most Web sites accessible and that commercial sites can gain millions of new customers by doing so. But if thatís true, regulation isnít needed. The competitive market will reward those who do.

Advocates like W3C view enforcing accessibility as a straightforward matter of regulating "form" without dictating content. But if this issue ever reaches the Supreme Court, we hope it will invoke a First Amendment principle articulated in a landmark 1974 case:

"The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press."

Decisions about using color to mark content or text to accompany graphics are matters of editorial judgment. That is no less true for Web designers than for print editors. Preserving their constitutional right to make those decisions — whether fair or unfair &mdash is what should be Priority 1.

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