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web accessibility

It’s potentially the biggest regulation in the federal pipeline that most people don’t know about — and it’s aimed straight at the freedom to publish of the Internet. I explain at Cato at Liberty. More: Coyote (“The implications could be staggering, and in certain scenarios would basically force me to certainly close down this site, and likely close down many of my business sites.”)

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Free speech roundup

by Walter Olson on March 27, 2013

  • Alarms re: proposed new UK code to regulate press, both print and electronic [John O'Sullivan, Andrew Stuttaford] “Why we won’t sign the press-regulation Charter” [The Spectator: Nick Cohen]
  • Also from the UK: “Police investigate Conservative MP Tim Loughton for calling man ‘unkempt’” [Telegraph]
  • “Teenager arrested for tweeting rap lyric containing the word ‘homicide.’” [Ann Althouse]
  • “CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech” [Disability Law, Courthouse News; more on new web accessibility push]
  • Administrator at Yeshiva U. hires lawyer to get posts removed from prominent law blogs, Streisand Effect ensues [Scott Greenfield]
  • Philly Mayor Michael Nutter sends letter to city human relations commission demanding investigation of Philadelphia Magazine for publishing article he dislikes [Ken at Popehat, Hans Bader]

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Joe Mullin/Ars Technica and Prof. Bagenstos have details. Per the press release (PDF) of the jubilant plaintiffs:

Netflix has increased captioning for 90% of the hours viewed but is now committed to focusing on covering all titles by captioning 100% of all content by 2014. Captions can be displayed on a majority of the more than 1,000 devices on which the service is available.

Earlier here, here, here, and here.

  • Window office, transfer over more qualified candidates: “5 reasonable accommodations an employer never dreamed it would have to make” [Robin Shea]
  • Rep. Lungren [R-CA] introduces ADA notification bill [Elk Grove Citizen, House Judiciary hearing]
  • 2nd Circuit: NYC doesn’t have to make taxis disabled-accessible [NY Mag, NYDN, William Goren, earlier]
  • More on the Netflix captioning ruling from Julian Sanchez and Doug Mataconis [earlier]. “I am so sick and tired of hearing people like Olson … the Walter Olsons of the world” writes Ellen Seidman [Parents mag] Don’t let her hear what Eric Goldman said.
  • Report: 86 California Burger King outlets to pay $19 million to settle complaints on ADA accessibility [Sam Bagenstos]
  • Service animals on planes: when pigs fly [Amy Alkon via James Taranto] S.D. Fla.: “Fair Housing Act Requires Allowing Emotional Support Animals as a Reasonable Accommodation” [Bagenstos]
  • Cuttino Mobley loses doc-wouldn’t-let-me-play disability suit against New York Knicks [Alex Raskin, NJ.com, earlier]

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Following up on our Monday posts: in an Ars Technica column, prominent Internet-law expert blogger and lawprof Eric Goldman considers the Massachusetts’ federal judge’s ruling “a bad ruling. Really terrible.” And it’s at odds, he says, with a long series of earlier decisions that had rejected the idea of websites as a “public accommodation” for purposes of the ADA.

In response, lawprof and prominent ADA advocate Sam Bagenstos says precedent in the First Circuit (which covers Massachusetts) is relatively favorable to the public-accommodation theory. And, he says, the federal government’s lawyers have long been committed to the position that the Web is a public accommodation subject to the ADA — which falls into the ever-popular category of “reassurances that leave me less reassured than ever.”

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As I note in a new Cato post, a judge ruled last week that Netflix is a “public accommodation” and can be sued for not offering closed captioning on all its streamed films for the convenience of deaf customers. (Earlier here.) If upheld, the ruling will apply not just to Netflix itself but to a much broader class of online communicators; also waiting in the wings are blind advocates who believe the law requires the addition to movies of supplementary soundtracks describing action. As I pointed out to the Boston Globe, obligatory captioning, soundtrack supplementation and the like is likely to make it uneconomic to offer streaming of many films with low expected circulation. Note, however, by way of contrary precedent, this 2010 federal court ruling that online multiplayer games are not a public accommodation. My new post is here (& Allen McDuffee, Washington Post “Think Tanked”, Alexander Cohen/Atlas Society, George Leef/John Locke Foundation, Sam Bagenstos/Disability Law.)

P.S. And this must-read post at Ars Technica from prominent Internet law blogger Eric Goldman (“a bad ruling. Really terrible.” and contrary to precedent). Bonus: “I am so sick and tired of hearing people like Olson… the Walter Olsons of the world” [Ellen Seidman, Parents mag]

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Thanks to reader Hugo Cunningham for spotting this in a new Boston Globe report on the failure of the Massachusetts state medical board to post physicians’ disciplinary problems and other performance issues online:

Another major omission has resulted from a Catch-22-like requirement in state law. Russell Aims, the … chief of staff
[of the Massachusetts Board of Registration in Medicine], said the board used to post digital copies of its disciplinary orders [for medical malpractice]. But an online accessibility law requires that documents be available in a text-to-speech format for the visually impaired.

Because the PDF format of the disciplinary records is not compatible with text-to-speech software, Aims said, the law dictates that such records cannot appear in the database. If the visually impaired cannot access the information, then no one can.

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  • Supreme Court orders rebriefing in Kiobel v. Royal Dutch Petroleum case, could address extent of permitted extraterritoriality in Alien Tort Statute [Kenneth Anderson/Volokh quoting John Bellinger, Point of Law featured discussion, Ilya Shapiro on Cato brief]
  • UN “food rights” official: trade, investment pacts should not go forward without “human rights impact assessments” [De Schutter; his paternalist food-policy agenda] UN panel reviews Canada’s record on race, lectures on need for more multiculturalism [OHCHR]
  • Courts still reluctant to restrain parents’ physical discipline of kids, but UN Convention on the Rights of the Child, for which ratification push is expected in the U.S. this year, could change that [Elizabeth Wilson, ConcurOp]
  • Golan v. Holder: “Copyright Case May Have Profound Effect on Treaty Power” [Ilya Shapiro, Jurist]
  • Web accessibility litigation spreads to UK [Disability Law, related on role of U.N. Convention on the Rights of Persons with Disabilities, earlier and background]
  • New tone under Ambassador Joseph Torsella: “Obama Comes Around on U.N. Reform” [Brett Schaefer, NRO]
  • Reviewing new John Fonte book Sovereignty or Submission, Temple lawprof Peter Spiro contends that trend toward transnational governance isn’t “reversible…. It’s mostly wishful thinking to suppose that we can stick to the vision of the Founders.” [OJ, earlier here, etc., and see chapters 11-12 of Schools for Misrule]
  • Dante’s Divine Comedy “offensive and should be banned,” per UN anti-discrimination consultancy [Telegraph]

Assisted by a foundation, Baltimore has proposed putting Nook e-reader devices in some school libraries, but a complaint from the National Federation of the Blind says that would violate Title II of the Americans with Disabilities Act (ADA). [Business Wire]

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A Massachusetts federal judge has declined to throw out an ADA suit against Netflix demanding captioning of its streaming movie service, but “stayed the case pending rulemaking by the Federal Communications Commission.” [Qualters, NLJ] Relatedly, Arizona’s largest movie chain will install closed captioning and headset systems in all its outlets following an adverse ruling by the Ninth Circuit under the Americans with Disabilities Act (ADA). [East Valley Tribune, earlier] Meanwhile, following an audit negotiated in a settlement with the U.S. Department of Justice, “The city of Tucson may have to find an estimated $17 million to bring many of its facilities into compliance with the Americans with Disabilities Act.” [Star]

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Dangerous, far-reaching web-accessibility proposals haven’t gone away. [Kelly L. Frey Sr. and Shameak Belvitt, Law.com]

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March 29 roundup

by Walter Olson on March 29, 2010

  • “Teen beauty queen portrayed as spoiled brat on ‘Wife Swap’ files $100M lawsuit” [NY Daily News]
  • “Viva el cupcake!” NYC parents and kids protest the Bloomberg administration’s anti-bake-sale rules [Philissa Cramer, GothamSchools] Bill in Congress would thrust federal government much more deeply into school food issues [Al Tompkins, Poynter]
  • For improved disabled access to online resources, look to technical advance, not regulation [Szoka, City Journal]
  • “Ministry of Justice Rolls Out New Measures to Reform U.K. Libel Law” [Legal Week/Law.com] “Success Fees in U.K. Libel Cases to Be Slashed by 90 Percent” [same]
  • “They’re overlawyered. They’re poisoned by lawyers.” (Markopolos critique of SEC, cont’d) [Gordon Smith, Conglomerate]
  • A sentiment open to doubt: Prof. Freedman contends that lawyers’ ethics are higher than doctors’ [Legal Ethics Forum]
  • Quotas for women executives in boardroom and top corporate posts spread in Europe. Maybe someday here too? [NYT "Room for Debate"]
  • Yes to better indigent criminal defense, no to a court order taking over the subject [Greenfield]

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A California federal judge has dismissed Alexander Stern’s case against the Japanese entertainment company, ruling that online multiplayer games such as EverQuest, unlike bricks-and-mortar establishments, are not “places of public accommodation” under the Americans with Disabilities Act [OnPoint News, opinion in PDF courtesy OnPoint, earlier here and here] (& Darleen Click, Protein Wisdom)

“Two organizations representing the blind have settled a discrimination lawsuit against Arizona State University over its use of Amazon’s Kindle e-reader device. … The university, which denies the pilot program violates any law, agreed that if it does decide to use e-book readers in future classes over the next two years, ‘it will strive to use devices that are accessible to the blind,’ according to their joint statement.” [AP/ABC News; earlier] Related: Berin Szoka, “An Internet for everyone” [L.A. Times/City Journal]

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January 18 roundup

by Walter Olson on January 18, 2010

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January 3 roundup

by Walter Olson on January 3, 2010

  • “A Patient Dies, and Then the Anguish of Litigation” [Joan Savitsky, NYT, more]
  • “Kern County’s Monstrous D.A.” [Radley Balko]
  • “Former N.Y. Judge Sentenced to 27 Months in Jail for Attempted Bribery” [NYLJ]
  • “ADA Online: Is a Website a ‘Place of Public Accommodation’?” [Eric Robinson, Citizen Media Law, background here and here]
  • “The New Climate Litigation: How about if we sue you for breathing?” [WSJ editorial]
  • Saratoga school district agrees to overregulate, rather than ban, students’ bikes [Free-Range Kids, earlier]
  • “Head of BigLaw pro bono department fails to pay income taxes for 10 years? How’s that happen?” [WSJ Law Blog]
  • Municipal subprime suits: “The Most ‘Evil’ Lenders Are Also, Conveniently, The Richest” [Kevin Funnell; more at Point of Law]

Alexander Stern has sued Sony Online Entertainment and various affiliated entities involved in online videogaming, saying the company “is violating the Americans with Disabilities Act by failing to implement features to make its games accessible to visually impaired gamers.” [Gamespot, Kotaku, The Register via Siouxsie Law]

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