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The Blind Leading the Blind

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First it was the deaf; now it is the blind.

Back in 2010, Netflix was sued by the National Association of the Deaf (NAD) for “discriminating against deaf and hard-of-hearing viewers because not all their streaming video had closed captions.” The NAD, with the support of the U.S. Justice Department, maintained that Netflix was a “place of public accommodation” and therefore subject to the Americans with Disabilities Act (ADA), despite lacking a physical location. After two years, Netflix agreed to settle with a legally binding consent decree instead of going to court. As part of the settlement, Netflix agreed to caption all of its video content, and to do so indefinitely.

But in an unpublished ruling (which is not intended to be considered legal precedent) by the U.S. Ninth Circuit Court of Appeals in 2015, three judges supported a federal district court judge who threw out a similar 2011 lawsuit against Netflix. They reasoned that “because Netflix is ‘not connected to any actual, physical place,’ it cannot be considered a place of public accommodation and therefore is not subject to the ADA.”

Fast forward to 2016. Dash, the clothing boutique founded by Kourtney, Kim, and Khloe Kardashian was sued for being inaccessible to the visually impaired. A man who is legally blind sued the company because “the Dash website wasn’t compatible with the software he was using nor were there any other options available on the site.” The plaintiff, who argued that the website’s lack of access violated the ADA, sought “for the company to pay for damages, attorney’s fees and any additional payments deemed necessary.” He had previously made the same claim against other retailers.

In 2017, the cosmetics website of the Kardashian trio’s half-sister, Kylie Jenner, was sued by a blind woman who argued that the Kylie Cosmetics website wasn’t compatible with her screen-reader software. The plaintiff, who did not seek any cash, claimed that the website needed to get up to standards required by the ADA.

And now, believe it or not, Playboy is being sued because its website is said to be inaccessible to the blind. Donald Nixon, who is legally blind, recently filed a class-action lawsuit in which he argues that “Playboy.com and Playboyshop.com aren’t compatible with screen-reading software that translates text into braille or recites it using a speech synthesizer.” Although I didn’t think that anyone visited the Playboy website for anything but the pictures, Nixon’s lawsuit claims that the visually impaired “cannot fully and equally use or enjoy the facilities, products, and services” offered, thereby making Playboy in violation of the ADA. Nixon not only wants to force Playboy to become accessible to the blind, he is also seeking unspecified damages.

There is one thing that all of these lawsuits have in common: they allege that some private business is violating the ADA.

The ADA (PL 101-336), was signed into law by the recently deceased president, George H.W. Bush, on July 26, 1990. Said President Bush,

This act is powerful in its simplicity. It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.

The ADA was amended by Congress in 2008 and signed into law by President George W. Bush on September 8, 2008.

The ADA’s purpose is fourfold:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against persons with disabilities;

(3) to ensure that the federal government plays a central role in enforcing the standards established on behalf of persons with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the Fourteenth Amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities.

The disabilities protected by the ADA include both mental and physical medical conditions. The ADA’s first four titles outlaw discrimination of the disabled in employment; public entities, including transportation; public accommodations, including commercial facilities; and telecommunications. Title V protects from retaliation persons who exercise their rights under the ADA.

The employment provisions of the ADA apply to employers with fifteen or more employees. State and local governments are covered regardless of size. The public accommodations provisions, which apply to businesses of all sizes, include virtually every type of business. The ADA specifically mentions hotels, motels, restaurants, bars, theaters, halls, stadiums, auditoriums, convention centers, bakeries, grocery stores, clothing stores, hardware stores, laundromats, dry cleaners, banks, barber shops, beauty shops, funeral parlors, gas stations, terminals, depots, hospitals, professional offices, museums, libraries, art galleries, parks, zoos, amusement parks, schools, day-care centers, homeless shelters, food banks, adoption agencies, gyms, spas, bowling alleys, and golf courses.

Several federal departments and agencies have a part in enforcing or investigating claims involving the ADA: the departments of Labor, Transportation, Education, Justice, and Health and Human Services; the U.S Equal Employment Opportunity Commission (EEOC); and the Federal Communications Commission (FCC). The Architectural and Transportation Barriers Compliance Board (ATBCB) issues guidelines to ensure that buildings, facilities, and transit vehicles are accessible to the disabled.

When it comes to the subject of making accommodations for the disabled and not discriminating against them, the blind are leading the blind.

It is understandable that the disabled don’t want to be discriminated against because of their disabilities. Just as it is understandable that no one wants to be discriminated against because of his race, color, religion, national origin, political ideology, age, sex, sexual orientation, or appearance.

But what is the real issue here?

The real issue is that the disabled and their advocates are using the heavy hand of government to force private businesses to hire the disabled, make accommodations for them, and modify buildings, restrooms, and websites for them.

Now, there is certainly nothing wrong with businesses’ hiring the disabled, making accommodations for them, and modifying buildings, restrooms, and websites for them. Like most Americans, I applaud them for doing it.

But in a free society, no business would be forced to do those things. Just as in a free society no employer would be forced to employ someone if he objected to his race, color, religion, national origin, political ideology, age, sex, sexual orientation, or appearance — regardless of how irrational, illogical, or unreasonable his objections might be.

It doesn’t matter whether most Americans support the ADA and are blind to the nature of a truly free society. Since acts of discrimination do not involve force, violence, threats, coercion, or aggression, they should never be prevented or punished by the government.

Advocates of a free society don’t lack empathy and compassion for the disabled. Far from it. They just have no sympathy for government force, violence, threats, coercion, or aggression — or the fines and imprisonment that go along with it.

It is terrible to have to live with a disability. But it is likewise terrible to have to live in a society that is not free. To outlaw discrimination is to outlaw freedom of thought. To restrict discrimination is to restrict freedom of assembly. To limit discrimination is to limit property rights. To regulate discrimination is to regulate freedom of association. Discrimination is not essential for a free society, but the right to discriminate is.

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