Robbing Beyoncé Blind
A slightly condensed version of this article first appeared in City Journal on January 10, 2019 (here). Thank you, Instapundit (here) and The Science Advice Goddess (here). And Overlawyered.com (here). and Real Clear Policy.
The ADA litigation monster continues to run amok
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 poor-conceived—and horribly-drafted—law that continues to generate unintended consequences decades following its passage in 1990. (“The ADA Litigation Monster,” Spring 2017) Computer users afflicted with various disabilities—blind consumers seem especially litigious—regularly sue companies hosting websites that allegedly aren’t sufficiently “accommodating” toward their condition. Beyoncé, through her management company, is the latest target of this scam.
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 of course there is no shortage of contingent fee lawyers eager to file suit. The principal requirement is a defendant with a deep pocket, and with 22 Grammy Awards the phenomenally-successful Beyoncé qualifies. She and her husband, rapper Jay-Z, reportedly have a net worth over $1 billion. Her website, Beyonce.com, was an obvious candidate for the ADA litigation shakedown.
Readers may recall that City Journal warned of the growing menace of such lawsuits, which plague merchants engaged in e-commerce even though the ADA was enacted before the advent of the Internet and doesn’t even refer to websites. Wheelchair ramps and restroom grab rails are among the “accommodations” businesses with physical premises are required to 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 the filing of extortionate lawsuits by disabled consumers under the ADA, which most businesses choose to settle to avoid exorbitant (and unrecoverable) defense costs.
As pointed out in CJ two years ago, applying the ADA to websites exposes millions of businesses to “the worst of both worlds: mandates without directions.” The Beyoncé lawsuit is typical. She is not a “brick and mortar” establishment. Beyoncé is an entertainer—singer, songwriter, actress, and dancer—with a huge social media presence. She reportedly has 122.2 million followers on Instagram. Her website, Beyonce.com, is primarily a marketing platform to update fans and promote her music and upcoming live shows. The site, brimming with photos of Beyoncé and archived media coverage, also advertises her line of fragrances (available at retailers such as Wal-Mart and Walgreens) and peddles some themed swag and inexpensive apparel such as t-shirts and sweats. The website is basically a cyber fan club.
For plaintiff Mary Connor, a visually-impaired New York resident who requires screen-reading software to read website content using 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 seeks the recovery of “compensatory damages” and attorneys’ fees. Alternatively, Beyoncé could simply shut down her website or discontinue selling themed merchandise on Beyonce.com, inconveniencing millions of her sighted fans—an outcome that apparently does not concern Connor.
The Complaint poignantly 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. Seeing facial expressions, action shots, set décor, and costumes are just a sample of the significant images that sighted people experience at the movies and live theater.” 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. Helen Keller is, quite properly, an American icon. However unfortunate the situation of 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. Attempting to “level” all disparities among individuals in this fashion is fraught with potential for unfairness and coercion, as illustrated in Kurt Vonnegut’s prescient short story, “Harrison Bergeron.” Vonnegut, a sardonic novelist and science-fiction writer who rose to fame in the late 1960s with his breakout best-seller Slaughterhouse-Five, is best-known for his anti-war, anti-military, and anti-corporate themes, which resonated with disillusioned readers in that tumultuous era.
Ironically, however, “Harrison Bergeron,” first published in 1961 and later included in the author’s Welcome to the Monkey House collection in 1968, is one of Vonnegut’s more enduring works. Applying his signature dark satire to a liberal totem, egalitarianism, decades before the ADA was passed in 1990, Vonnegut predicted the mania for eliminating “unfair” differences among individuals bestowed by nature. The story, set in the year 2081, is a dystopian peek into a future in which the zeal for end-result equality has resulted in amendments to the Constitution banning genetic advantages. No one is allowed to be smarter, better-looking, stronger, or more athletic than others.
A government bureau, the Handicapper General, enforces this mandate through a variety of techniques, all of them involving artificially hindering individuals with superior attributes and abilities in order to equalize society. Fairness is achieved only when all are reduced to the lowest common denominator in terms of physical and mental endowment. It is a deeply disturbing vision of equality. Increasingly, piratical litigation under the ADA resembles Vonnegut’s nightmarish scenario. Web accessibility lawsuits seek more than the cessation of “discrimination”; they seek to neutralize the negative effect of the disability itself.
The absurd extension of the ADA to areas it was never intended to reach puts the legal system in the position of Vonnegut’s Handicapper General. 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 stop this senseless litigation. Beyoncé and other website hosts do not deserve to be blindsided in this manner.