The ADA Doesn’t Apply to Online Newspaper Website (Again)–Winegard v. Newsday

The plaintiff is deaf. He is a serial litigant (“By this Court’s count, Mr. Winegard had filed at least forty-four ADA lawsuits in this district alone as of August 16, 2021”). He says that he can’t watch video on the Newsday website because the videos lack closed captioning.

The court says the ADA’s intent for the phrase “public accommodation” is unmistakable–it only applies to physical spaces. In response to the common argument that Congress couldn’t have contemplated the Internet when the ADA was passed in 1990, the court says “there were countless other types of businesses operating outside of brick-and-mortar premises in 1990, including some that had been in operation for decades,” specifically citing virtual commerce vendors in the 1980s like Sears, LL Bean, J. Crew, Columbia House, Book-of-the-Month Club, and QVC. Thus, “If Congress had intended, it could easily have required catalogs to be printed in Braille and TV shows to include closed captioning by including such media within the scope of ‘public accommodations.'” Add in the qualifier “place of,” which the Supreme Court has held to apply only to physical settings in an analogous statutory context, and the bright-line requirement of physicality is clear.

Evaluating a Second Circuit precedent, the court says:

At most, therefore, Pallozzi supports the conclusion that websites are swept up in Title III when they offer the same “goods and services” as the business’s brick-and-mortar operation. Other courts have reached similar conclusions in applying the ADA to the websites of businesses that do maintain public-facing, physical storefronts (unlike Newsday).

Thus, even though “several district courts in this Circuit have concluded that a website is a place of public accommodation in its own right, whether or not it is attached to a brick-and-mortar business,” the court says those cases relied on misinterpretations of Pallozzi. In a footnote, the court adds that this misinterpretation contains no limiting principle on the ADA’s applicability, so it would mean “every operator of a website — every blogger, vlogger, and the like — must provide closed captioning and any other accommodation required by the ADA.”

The court concludes:

the ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations from the definition of “public accommodations.”

This opinion reaches an identical result to the uncited Suris v. Gannett decision from July, also involving a deaf user who couldn’t watch videos on a newspaper website. Odd that the judge didn’t cite an exactly-on-point precedent from the same federal district.

Case citation: Winegard v. Newsday LLC, 2021 WL 3617522 (E.D.N.Y. Aug. 16, 2021)

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