Section 230 Applies to ADA Closed Captioning Claims–National Federation of the Deaf v. Harvard

Harvard publishes a lot of video online, both on servers it operates and through third-party services like YouTube. Only some of that video has “timely, accurate closed captioning.” The National Federation of the Deaf sued Harvard for ADA violations and related claims.

As an educational institution, Harvard admits that it is a place of public accommodation, but it says that the plaintiffs must still show “a sufficient nexus to goods or services offered to the public in a physical location.” The court responds that the First Circuit’s binding Carparts decision indicates the ADA law should be read broadly; and some of the videos replicate content from Harvard’s physical space offerings. Harvard also claimed that it merely “hosts” some videos, but the court says that’s irrelevant for ADA purposes. Thus, the ADA nominally applies to Harvard’s video publications.

Harvard also defended on Section 230 grounds. This sets up a dangerous issue: how does Section 230 interact with federal anti-discrimination claims? You may recall the Ninth Circuit’s meltdown on this issue in the case; and Congress is extra-concerned that Section 230 might enable discrimination (whether it’s against conservatives or Facebook’s alleged steering of employments ads on a discriminatory basis).

Nevertheless, Harvard has a couple of things going for it. First, the complaint generically refers to “Harvard’s Online Content,” without distinguishing between videos that might be third-party content to Harvard and videos Harvard “creates” or “develops.” Second, this case is governed by the First Circuit’s defense-favorable Doe v. Backpage ruling, which I ranked as the third most important Section 230 case of all time because it has really changed the tenor of many subsequent opinions.

As for the interaction between Section 230 and federal anti-discrimination laws, the court’s position (citing the Seventh Circuit’s Craigslist case) is clear and emphatic:

The CDA exempts certain laws from its reach. Federal and state antidiscrimination statutes are not exempted.

The court adds:

Plaintiffs’ plea for access to aural content available on the Internet is compelling. So were the claims made by the victims of sex trafficking in [sic], as the First Circuit recognized.

The court doesn’t definitively resolve how much of NAD’s lawsuit is preempted by Section 230. It looks like some of it will be. The court says:

To the extent Harvard provides platforms on which third parties post content that Harvard does not create, produce, or substantively alter, Harvard is hosting information provided by another ICP….holding Harvard liable for the inaccessibility of online content created or developed by a third party when Harvard does not alter that content would impermissibly “involve treating [Harvard] ‘as the publisher’ of ‘information provided by another information content provider.’”” [cite to Lycos]

Yet, on a judgment on the pleadings, the court says the plaintiff’s claims for “Harvard’s Online Content” are too general to resolve now. For example, the court isn’t sure if content produced by students, faculty, or other scholars will qualify as third-party content. Nevertheless, Section 230 definitely applies to videos embedded on its service. “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part – in other words, is publishing a third party’s content – Harvard is entitled to CDA immunity.”

That final holding–that Section 230 immunizes embedded third-party video–is pretty straightforward and fairly limited in scope. In contrast, the court’s broader conclusion that Section 230 immunizes federal anti-discrimination claims–while not unprecedented–has potentially sweeping reach that could impact the entire online video industry and their legal exposure to content that isn’t closed captioned. Though that conclusion is harmonious with the Doe v. Backpage ruling, I wonder if it will survive intact on appeal if the case gets there. It may depend on exactly how broadly or narrowly the court decides what constitutes third-party video to Harvard.

Case citation: National Association of the Deaf v. Harvard University, 2019 WL 1409302 (D. Mass. March 28, 2019)

BONUS COVERAGE: The Harvard case concludes that Harvard’s online video operations are subject to the ADA, even if online video might be considered a virtual space. This is consistent with a Ninth Circuit ruling from January that got stuck in my blog queue. Here’s my delayed and truncated blog post on that ruling:

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In a 2012 post, I asked “Will the Floodgates Open Up for Americans with Disabilities Act (ADA) Claims Against Websites?” The answer is yes. According to one report: “Plaintiffs filed more website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017.  There were at least 1053 of such lawsuits in the first six months of 2018, compared to 814 in all of 2017.”

This trend won’t abate any time soon after the Ninth Circuit’s ruling in Robles v. Domino Pizza. The case reinforces that every offline retailer must comply with the ADA for complementary online services. This creates many opportunities for low-merit enforcements.

The Ruling

This case involves a website and app that act like a virtual storefront, allowing customers to purchase physical items from a physical retailer (in this case, pizza from Domino’s). The visually impaired plaintiff said his screen reader failed. The court addressed three legal arguments:

1) The ADA Applies to Domino’s Website/App. Domino’s physical storefronts must comply with the ADA. The court says “the ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. This requirement applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant.”

2) Imposing ADA Liability Doesn’t Create Due Process Concerns. The court says the ADA has “comprehensible standards” and provides fair notice. As discussed below, the court seems unperturbed about the absence of clear technical rules that ensure compliance. “Our Constitution does not require that Congress or DOJ spell out exactly how Domino’s should fulfill this obligation.”

3) It’s OK to Impose Liability Even Though the DOJ Hasn’t Completed Its Rulemaking. The court can interpret the statute without guidance from the DOJ, assisted by expert testimony if necessary.


The court sidesteps some obvious problems to advance its anti-discrimination goal, including:

1) Must all “places of public accommodations” offer websites/apps and make those ADA-compliant? The court says that places of public accommodations must offer auxiliary aids, and defines websites/apps as auxiliary aids. Read literally, this ruling imposes the affirmative obligation on all places of public accommodation—a wide range of physical services—to have websites/apps and make those compliant with the ADA.

2) When has an online service complied with the ADA? No single universally accepted standard defines what it means for websites or apps to comply with the ADA. There are many different types of “disabilities,” and many vendors have software to assist with Internet usage (such as a multitude of different screen readers for visually impaired online users). Must an ADA-compliant website or app accommodate all of those software programs? An appreciable number? The market leaders? Something else?

There have been ongoing efforts to define universal online accessibility standards. The court refers to Web Content Accessibility Guidelines (WCAG) 2.0, because the plaintiff requested that Domino’s be required to comply with it as equitable relief. However, compliance with the WCAG 2.0 isn’t a safe harbor. Instead, the court says that Domino’s must comply with the ADA without specifying how Domino’s could do so, leaving it to the industry to guess what will be sufficient. A future court could turn around and say WCAG 2.0 compliance is sufficient, or it could reject WCAG 2.0 and require something more or different. Who knows?

Case citation: Robles v. Domino’s Pizza, LLC913 F.3d 898 (9th Cir. Jan. 15, 2019)