Never Line of Cases for Internet Accessibility Makes a Come back

Today’s blog entry is something I came across by way of my subscription to the Wait A Second blog, which focuses on all things in the Second Circuit and can be found in my blogroll. The case of the day is Winegard v. Newsday LLC decided by United States District Court of the Eastern District of New York on August 16, 2021. It talks about whether a place of public accommodation can be an Internet based business. As you may recall, there are several lines of jurisprudence regarding this: never; always; gateway; if one of the businesses in 42 U.S.C. §12181(7) is involved; and never but that isn’t the question (11^th Circuit). This particular case shows how the never line of cases is beginning to make a comeback. Will it last? Personally, I don’t think so providing attorneys start making use of South Dakota v. Wayfair, which we discussed here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; important footnotes; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff is a deaf individual residing in Queens New York. Newsday distributes newspapers throughout New York, but it operates no physical retail operations. The newspaper is also available on Newsday’s web site along with other web-based content. Plaintiff alleged that he visited Newsday’s website to watch various videos, including programs entitled “Dumpling Craze Hits Long Island: Feed Me TV,” and “High And Mighty: Feed Me TV,” but was unable to view them because the videos lack close captioning. Defendant moved to dismiss for failure to state a valid ADA claim.

 

II

Court’s Reasoning

 

1. At common law, the phrase “public accommodation,” referred to a subset of businesses that had heightened duties of service-often relating to lodging and transportation-because of the public nature of their physical facilities.
2. Antidiscrimination statutes like the ADA have used the term “place of public accommodation,” for over a century. In fact, you can find the phrase in a New York statute passed in 1895.The ADA’s definition of “public accommodation,” is consistent with that history.
3. Of the 50 examples found in 42 U.S.C. §12181(7), at least 49 of them are indisputably physical places.
4. Congress could have said, “all businesses operating in interstate commerce,” or “retail,” or “service,” operations. However, it didn’t do that and chose to focus on physical places instead. If Congress had wanted to capture business operation rather than places, it could have said as much but didn’t. Congress could easily have also included newspapers but didn’t. All of this demonstrates Congress’s decision to apply the ADA’s antidiscrimination provision to physical places rather than to business operations generally.
5. Countless types of businesses operating outside of brick-and-mortar premises existed in 1990, including some that had been in operation for decades. For example, the Sears Roebuck catalog dated back to 1888. If Congress had wanted to, it could easily have required catalog to be printed in braille and TV shows to include closed captioning by including such media within the scope of the phrase, “public accommodation.”
6. While it is true that each of the categories in 42 U.S.C. §12181(7) has a residual clause, that clause must be read in light of the specific list it follows. Ejusdem generis teaches that a residual clause’s meaning should be confined to the characteristics of the specific items listed before it.
7. Other Circuits (9^th and 11^th), have limited 42 U.S.C. §12181(7) to physical places.
8. Dictionaries overwhelmingly define “place,” to mean a physical location.
9. United States Supreme Court in a non-disability discrimination case talked about a physical place being a public accommodation. Since that decision came down after the ADA in 1990, places of public accommodation are presumptively physical locations in federal court.
10. PGA Tour v. Martin also emphasized a physical location.
11. No allegations exist that Newsday operates public-facing physical places where newspapers or any other goods or services are sold.
12. Cases saying that a website is a place of public accommodation in its own right just don’t add up according to this particular judge because it would mean allowing considerations of policy to divorce from the statute’s text and purpose to override its meaning, which is not something a court should do.

 

II

 

Important Footnotes

 

In law school, they teach you to always read the footnotes. In law school anyway, I tried not to do that because it meant a lot of additional time. As a lawyer, that is a mistake and this case illustrates the point. Let’s take a look at several of the footnotes.

 

1. In footnote 1, the court says that “travel service,” appears to refer to travel agencies and to facilities, such as American Express counters, offering traveler’s checks, currency-exchange services and the like. Those businesses routinely operated out of physical facilities when the ADA was adopted and still do to a lesser extent.
2. In footnote 2, the court refers to the District Court decision in National Association of the Deaf v. Netflix when that court stated that since web-based services did not exist when the ADA was passed in 1990, web-based services could not have been explicitly included in the Act.
3. In footnote 3, the court said that Congress knew well by 1990 that the Internet was coming. The Senate held hearings in 1989 to explore the potential of a national information superhighway. Even so, the ADA wasn’t written to account for that.
4. In footnote 11, the court notes that the ADA was amended in 2008 and that Congress could have easily amended the definition to clarify the inclusion of the Internet with the 2008 amendments but it did not do so.
5. In footnote 12, the court says the maxim noscitur a sociis says that individual items appearing in the list should be read to share common attributes.
6. In footnote 14, plaintiff argues that Newsday has its own television and video Internet studio in addition to its publishing and advertising production facilities and offices. However, plaintiff does not allege that those facilities are open to Newsday’s customers, or that Newsday sells it newspapers or any other goods or services that those locations.
7. In footnote 16, the court notes that plaintiff is a serial plaintiff having filed at least 44 ADA lawsuits in the Eastern District of New York alone as of August 16, 2021.
8. In footnote 17, the court says that while many district courts within the Second Circuit have held that websites qualify as a place of public accommodation under the ADA, the reasoning goes too far. Absent some limiting principle, their reasoning means that every operator of the website-every blogger, vlogger, and the like-must provide closed captioning and any other accommodation required by the ADA. The argument that such a rule would only apply to websites offering goods and services also does not wash because the textual basis for such a limitation in the ADA is unclear.

 

III

Thoughts/Takeaways

 

1. The two strongest arguments in favor of the never line of cases are that Congress did not add phrasing that would include the Internet in 2008, and the term “place,” presumptively refers to physical places.
2. The counterargument is that the United States Supreme Court has recognized technological evolution in other contexts, such as free speech, which we discussed here, and taxation, which we discussed here (As we know, South Dakota v. Wayfair is very recent. So by the logic of the court in this opinion, the term place would not presumptively refer to physical locations).
3. Very curious why South Dakota v. Wayfair was not raised in this decision. For lawyers advocating that the Internet is a place of public accommodation, failure to raise South Dakota v. Wayfair may border on malpractice (see this blog entry discussing legal malpractice). Perhaps, on appeal plaintiff will raise S.D. v. Wayfair then.
4. DOJ in the Trump administration, as we discussed here, strongly suggested that they were going to take the approach of Internet sites having to be accessible if it was of the type of business operating in 42 U.S.C. §12181(7). I would suspect that under a Biden administration that approach would continue.
5. There clearly is a circuit court split already (9^th-Gateway v. 11^th never but that isn’t the question) and more to undoubtedly come. When it goes to the Supreme Court, all bets are off with respect to the never line of cases succeeding, particularly in light of South Dakota v. Wayfair. To my mind, the Supreme Court would be more likely to go with the gateway theory or, relying on South Dakota v. Wayfair, with the of the type of business theory.
6. That plaintiff is a serial plaintiff should not affect the analysis. However, it isn’t unusual for a court’s analysis to be affected by that fact in subtle ways, sometimes significantly so.

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