Clearly, it has no brick-and-mortar store that we can shop in so the answer should be “no ADA coverage for its website.” That is exactly what happened in its California district court case (Cullen). But, in Massachusetts, the district court case (National Association of the Deaf) went the other way. Law school professors call such cases “outliers,” but in the courtroom today’s outlier sometimes becomes tomorrow’s conventional wisdom.
Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that.
Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re YouTube); Noah v. AOL Time Warner, 261 F. Supp. 2d 532 (E.D. Va. 2003) (same re: chat room); Earll v. eBay, Inc., No. 5:11-cv-00262-JF (HRL), 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011) (same: no ADA claim re eBay); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012) (same: no ADA claim re Netflix); Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) (same: no ADA claim re redboxinstant.com).
Virtualist courts say there are places in the heart and in the mind too. Those courts proclaim that the core meaning of the ADA is that “the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Website, or other facility (whether in physical space or in electronic space …) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.”
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