This column first appeared Jan. 10 on City Journal. Mark Pulliam is a contributing editor at the Law and Liberty website and blogs at Misrule of Law. He writes from Austin, Texas.
Is it Beyoncé’s fault that some of her fans are blind? Is the performer a “public accommodation,” like a hotel, restaurant, or department store? Is it society’s obligation to rectify all misfortunes in life’s lottery? These questions may seem silly, but they lie at the heart of a cottage industry of abusive class-action litigation against websites pursuant to the Americans with Disabilities Act, a well-intentioned but poorly conceived—and horribly drafted—law that continues to generate unintended consequences decades following its passage in 1990. Computer users afflicted with various disabilities—blind consumers seem especially litigious—regularly sue companies hosting websites that allegedly aren’t sufficiently “accommodating” of their condition. Beyoncé and her website (beyonce.com), through her management company, became their latest target.
The federal court complaint naming Beyoncé, as is typical of this predatory genre, is a cookie-cutter document. Both the plaintiff and her lawyer are serial ADA litigants, sometimes referred to as “ADA trolls.” Given the lack of any fixed legal standard for “web accessibility,” almost any grievance involving the technical features of a website is litigable, and there is no shortage of contingent-fee lawyers eager to file suit. The principal requirement: a defendant with deep pockets. With 22 Grammy awards to her credit, the phenomenally successful Beyoncé qualifies. She and her husband, rapper Jay-Z, reportedly have a net worth over $1 billion.
Such lawsuits plague merchants engaged in e-commerce, even though the ADA was enacted before the advent of the Internet. Wheelchair ramps and restroom grab rails are among the accommodations that businesses with physical premises must provide for disabled patrons, pursuant to regulations adopted by the U.S. Department of Justice to implement the ADA. No such rules exist for websites. Congress’s silence on the topic has not deterred disabled consumers from filing extortionate lawsuits under the ADA. Most businesses choose to settle to avoid exorbitant (and unrecoverable) defense costs.
As I’ve pointed out in City Journal, applying the ADA to websites exposes businesses to “the worst of both worlds: mandates without directions.” The Beyoncé lawsuit is an example. She is not a “brick and mortar” establishment. She is an entertainer—singer, songwriter, actress, and dancer—with a huge social media presence. Beyonce.com is primarily a marketing platform to update fans and promote her music and upcoming live shows. The site, brimming with photos of the star and archived media coverage, also advertises her line of fragrances and peddles some themed swag and inexpensive apparel such as t-shirts and sweats. It’s basically a cyber fan club.
For plaintiff Mary Connor, a visually impaired New York resident who requires screen-reading software to read website content on her computer, beyonce.com represents nefarious discrimination in violation of Title III of the ADA because it is an exclusively visual interface, making it impossible for Connor and other visually impaired customers to browse the site or make purchases without the assistance of a sighted companion. In this respect, the website is no different than a newspaper, magazine, or mail-order catalog. Connor’s specific complaint is that she wanted to buy an embroidered hoodie but couldn’t, denying her the “full and equal access to, and enjoyment of, the goods, benefits and services of Beyonce.com.” The class-action lawsuit seeks to compel Beyoncé to add features to make the website accessible to blind and visually impaired users, and—of course—to receive “compensatory damages” and attorneys’ fees. Alternatively, Beyoncé could simply shut down beyonce.com or discontinue selling themed merchandise on the site, inconveniencing millions of her sighted fans—an outcome that apparently does not concern Connor.
The complaint describes the plight of blind persons: “They are unable to see or participate in most sporting events. They can only imagine what a slam dunk or a stolen base or a backhand down the line looks like. Likewise, their experience at the movies or live theater cannot compare to the visual images experienced by sighted persons.” Without diminishing in any way the hardship and deprivation blindness imposes on those afflicted with it, suing popular singers who host websites is not an appropriate response, especially without specific authorization in the ADA or formal regulations adopted by an appropriate government agency.
The lawsuit against Beyoncé smacks of cynical opportunism, exploiting society’s empathy for the disabled. However unfortunate the plaintiff in this lawsuit (and the many like it filed against other websites), it is not Beyoncé’s responsibility to remedy the disadvantages of nature or accident. Web-accessibility lawsuits seek more than the cessation of “discrimination”; they want to neutralize the negative effect of the disability itself.
Richard Epstein, the noted libertarian legal scholar, warned that this type of intervention is “no longer a simple matter of removing obstacles, but the far more grandiose objective of providing massive subsidies to help the disabled, no matter the cost to the economy as a whole, and no matter the impingement upon the rights of others not covered by some Federal statute.” It is well past time for Congress to put a stop to this senseless litigation.