The lawsuit, brought by Access Now, an ADA advocacy group, claimed
that Southwest violated the Act because its Web site was
insufficiently accessible to blind persons. Specifically, the
plaintiffs faulted Southwest for not providing text in a format that
could be read by synthesized speech technology.

What about the fact that the relevant section of the Act applies only
to "places of public accommodation"? No problem, said the plaintiff's
lawyers: Certainly "place" can't be limited to the narrow confines of
the physical world. Cyberspace, too, is a place.


Unfortunately for the plaintiffs, although the ADA is famous for its
ambiguity, its text is pretty darn specific on this point. It
actually lists what it considers a "public accommodation." It
includes inns, hotels, motels "or other place[s] of lodging." Also
restaurants, bars, movie theaters, concert halls, auditoriums,
bakeries, grocery stores, laundromats, dry cleaners, banks, and so
on. The drafters practically gave specific addresses. And not a Web
site among them.

But the lawyers maintained -- presumably with a straight face -- that
Southwest's Web site was covered under the Act as a place
of "exhibition, display and a sales establishment." Yet the judge,
Patricia Seitz of the U.S. Southern District of Florida, didn't buy
it.






Apparently an old-fashioned judge, Seitz even used Latin, citing the
doctrine of ejusdem generis: "where general words follow a specific
enumeration of persons or things, the general words should be limited
to persons or things similar to those specifically enumerated." Or,
as they say in pre-school, "one of these things is not like the
other."






Is this a quirk in the law? A loophole in the ADA that policymakers
should patch? No. There are good reasons not to drag cyberspace under
the ADA. Such regulation is likely to impose considerable burdens on
Web site owners -- exactly the wrong prescription for the ailing
Internet economy, as well as for consumers.






ADA advocates say the costs of making sites accessible are minimal.
But where that's so, companies tend to act voluntarily. After all,
they make money by helping, not hindering, potential customers.






But with requirements ranging from providing transcripts for audio
files to checking color contrasts, the burden can be substantial, and
the costs can add up quickly. That could be why the list of sites not
meeting accessibility standards includes not just many airline sites,
but even some government sites, such as that of the Commission on
Civil Rights.






Still, ADA advocates argue that if physical establishments can learn
to live with the additional costs, cyberspace operations can too.
That's too complacent a view. Apart from lawsuit-happy trial lawyers,
few see the current ADA as a model of perfection. If applied to the
economically fragile digital world, the potential damage would be
considerable.






The Manhattan Institute's Walter Olson warns, for instance, that Web
design creativity and spontaneity could be stunted, as publishers
feel constrained to use only officially accepted tools. Amateur Web
sites would be winnowed as legal and technical rules limit the art to
professionals. So much for "blogs."






What about the First Amendment implications? The Internet is foremost
a tool of communication --- but ADA mandates could lead to regulation
of content unimaginable for newspapers or magazines. Current
guidelines, for instance, say that sites should "use the simplest and
most straightforward language that is possible," raising the prospect
of judges sitting in the editor's chair.






None of this is to say that making the Internet accessible to the
disabled isn't a worthy goal. It is, and efforts to do so where
practical are to be applauded. But such efforts must be voluntary; we
shouldn't be subjecting the Internet to regulators and trial
attorneys. Judge Seitz was correct: The ADA does not -- and should
not -- apply to cyberspace.


James L. Gattuso is a research fellow in regulatory policy at The
Heritage Foundation, a Washington-based public policy research
institute.

Distributed nationally on the Knight-Ridder Tribune wire