National Association of the Deaf v. Harvard Redux

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Harvard University. That particular blog entry talked about the magistrate judge denying Harvard’s motion to dismiss. Subsequently, Harvard filed a motion for judgment on the pleadings. On March 28, 2019, the magistrate judge, Katherine Robertson, denied and granted Harvard’s motion for judgment on the pleadings. Since the facts of the case have already been discussed in my previous blog entry, we don’t have to worry about that particular category. So, the blog entry is divided into three categories and they are: court’s reasoning ADA; court’s reasoning Communications Decency Act (CDA) Immunity; and takeaways. The reader, of course, free to focus on any or all of the categories.

I

Court’s Reasoning ADA

1. As a preliminary matter, the primary difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion for judgment on the pleadings implicates the pleadings as a whole. Such motions are treated similarly as to a motion to dismiss. Accordingly, the court views the facts contained in the pleading in the light most favorable to the nonmoving party and has to draw all reasonable inferences in favor of the nonmoving party. Judgment on the pleadings is only allowed where the facts conclusively establish that the movant is entitled to the relief sought.
2. The court goes into considerable detail over whether a place of public accommodation under title III of the ADA has to be a physical place. Ultimately, it concludes that the court has no choice but to follow the controlling law in its Circuit, which holds that a physical place is not necessary per Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1^st 1994).
3. Regardless of whether or not the Supreme Court ultimately makes the decision that a physical place is required for an entity to be subject to title III of the ADA, the magistrate found that a sufficient nexus between a physical place and the plaintiff existed in this case anyway. In particular: 1) Harvard operates a brick and mortar location; 2) the online content Harvard makes available to the general public but does not make accessible to the deaf and hard of hearing community includes Harvard@Home Presentations, which are designed to bring users inside the Harvard classroom to hear current, real-life lectures or provide them with a front row seat to University panels, alumni college forums, and other special events; 3) Harvard through its extension school offers free, noncredit courses; and 4) videos with spoken content appear in the archives of Harvard’s Peabody Museum of Art and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Junior forum, Harvard’s Lifesciences Outreach program, and Harvard’s Woodberry Poetry Room. Since it can be inferred that all of this online content is the same as a good or service that is, or was, also available at one or more of the physical locations at Harvard, plaintiffs have sufficiently pled the existence of inaccessible content on websites having a nexus with on-campus activities. So, when it comes to the applicability of title III, title III is applicable regardless of whether a nexus to a place of physical accommodation is required or not.
4. DOJ regulations do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. That said, Harvard possibly could be able to demonstrate that providing captioning, or any other available auxiliary aid or service, fundamentally alters the nature of its service or results in an undue burden.
5. 504 regulations prohibit a recipient of federal aid from discriminating in the providing any aid, benefit or service to a person with a disability directly or through contractual, licensing, or other arrangements. 34 C.F.R. §104.4(b)(1)(i)-(vii). Also, there is no persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to persons with disabilities under §504.
6. With respect to Harvard’s internet site containing content posted on third-party websites, that becomes a matter of Harvard showing whether the fundamental alteration or undue burden affirmative defense applies. That requires a factual record to be developed.

II

Court’s Reasoning Communication Decency Act of 1996 Immunity (47 U.S.C. §230)

1. 47 U.S.C. §230(c)(1) (§230 of the Communication Decency Act) provides protections for a “Good Samaritan,” that blocks and screens offensive materials. In particular, it says that, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
2. The effect of 47 U.S.C. §230(c)(1) is that lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content- are prohibited.
3. The CDA defines an interactive computer service as, “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including… systems operated or services offered by libraries or educational institution.” 47 U.S.C. §230(f)(2).
4. The CDA defines an information content provider as, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. §230(f)(3).
5. The immunity under this section only applies when the information forming the basis of the claim has been provided by another information content provider. That is, an interactive computer service provider is liable for its own speech.
6. Near universal agreement exists that §230 must be construed liberally. Therefore, the section operates to prohibit many causes of action premised on the publication or speaking of information content.
7. No authority exists holding the title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded by the CDA.
8. In order to be covered by the immunity provision of the CDA, three things have to be shown: 1) Harvard must be a provider or user of an interactive computer service; 2) the claim of the plaintiffs have to be based upon information provided by another information content provider; and 3) the claim must treat Harvard as the publisher or speaker of that information.
9. No support exists for plaintiff’s claims that the CDA does not apply when a plaintiff claims disability discrimination is based upon a lack of access rather than on the content of speech.
10. Federal and state antidiscrimination statutes, see 47 U.S.C. §230(e), are not exempted from the immunity provided by the CDA.
11. Citing to a case from the Seventh Circuit, the court noted that the Seventh Circuit held that §230 operated to preclude Fair Housing Act claims. Citing to a case from the First Circuit, the court noted that the CDA operated to preclude a claim under the Trafficking Victims Protection Reauthorization Act of 2008.
12. Since Harvard acknowledges that it hosts platforms to which online content may be uploaded, it isn’t absurd to treat Harvard as an interactive computer service.
13. Since Harvard, to some extent, provides platforms in which third parties post content that Harvard does not create, produce or substantively alter, Harvard is hosting information provided by another Internet content provider.
14. Since numerous cases include educational institutions in the CDA’s definition of Internet computer services providers, that means that Harvard gets a get out of jail free card with respect to the inaccessibility of online content created or developed by a third party that is not altered by Harvard.
15. The CDA relieves interactive computer service providers from liability whenever they exercise control, such as blocking and screening of third-party content.
16. Harvard’s choices about what third-party content can appear on its website and in what form, are editorial choices falling within traditional publisher function protected by §230.
17. While §230 immunity is an affirmative defense, a motion to dismiss still works if the dismissal is evident from the face of the complaint.
18. The court at this point is unable to determine as a matter of law whether Harvard is not in some matter a content provider at the information on its platforms originating with student, faculty members, or other scholars.
19. Harvard does get a get out of jail free card with respect to inaccessible content that is merely embedded online content (i.e. content hosted on a third-party server that is hyperlinked in its existing form content that is hosted on a harbor platform or website), produced or created by Harvard because Harvard remains a publisher under the communication decency act as to embedded content.
20. Would you like to be confused? Try understanding this paragraph: “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, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings.”

III

Takeaways

1. The court properly notes that when it comes to whether title III of the ADA only applies to places of public accommodation that are physical spaces, is something that is very much a debate. We have discussed the issue on our blog numerous times. As I discussed in this blog entry, it is very possible that when the Supreme Court ultimately get to this issue, they will hold that a physical place is not necessary.
2. It probably would not be all that hard to find a nexus to a physical place with respect to online content appearing on a university’s website since colleges and universities are places of education. As a place of education, disseminating information is a critical part of what they do on their brick-and-mortar campus.
3. This case is another example of how §504 and the ADA are not always identical. Sometimes, §504 goes further than the ADA. Sometimes, it works the other way around.
4. One of the reasons I enjoy practicing in the area of the rights of people with disabilities, is that it interacts with all kinds of laws. You would not think of the CDA and disability accessibility going together, but in this case, it does. It also means that practicing in this area can be a bit daunting because you never know where a related law is going to come from.
5. 47 U.S.C. §230 provides for broad immunity. After this decision, look for colleges and universities in particular that are being sued for inaccessibility of their web content to rely on this case as a matter of course. In fact, it will probably be legal malpractice for colleges and universities not to do so.
6. It is really unclear just how far the immunity goes. For example, I link to things all the time when I do my blog. However, ¶ 20 above, where the court stated: “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, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings,” is really unclear. The reason this paragraph is so confusing is that most certainly students and faculty will put things up with links. Those links are not college or university’s responsibility under this decision. Does the answer change with respect to anything the college or university posts as a result of a license that it has? Does the answer change with respect to anything it puts up through the fair use doctrine? What if there is content beyond the link posted on Harvard’s site? It seems from ¶ I 6 above that Harvard is on the hook for that inaccessibility absent a showing of fundamental alteration or undue burden. However, it also seems per ¶ II 14, it may or may not have immunity for such claims.