The Washington Examiner, a local paper published in Washington DC and nearby areas, published an editorial on February 20th suggesting that legal enforcement of accessibility requirements for web sites may not be constitutional under the first amendment.
The editorial quotes an unnamed Supreme Court decision:
The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.
Although the editorial does not name the decision, it is a particular citation which has appeared frequently in the news lately in relation to the prophet Muhammad cartoon riots. The case, Miami Publishing Company v. Tornillo (1974), is concerned with a Florida law "which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges."
The law was ruled unconstitutional on the grounds that no law may either require the publication of material or deny the right to publish it, as either action is an infringement on the editorial right of the publication to choose what it will say.
The majority opinion of the court discusses changes in publication media extensively. The statement is too lengthy to quote here, but I will attempt to summarize. Justice Burger discusses the culture of ideas as a free-market which had existed through the variety of news publishing which existed at the compilation of the Bill of Rights. He noticed that the consolidation of media which had occurred by 1974 has had a singular effect on this culture, creating a homogeneity which has created a culture prone to bias and manipulation by those few individuals at the controls.
From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market….
The opinion continues to condemn any governmental action which would control the media since press responsibility is not a part of the constitution and can not be legislated.
Does this opinion exhibit evidence that it stands as a barrier to any potential accessibility law? Yes, absolutely. It is quite clear that this opinion has considered relevant issues. The opinion explicitly states that the government has no right to legislate access to information.
Nonetheless, the world has changed, and continues to change. It all comes down to constitutional interpretation. This 1974 decision does not address issues of accessibility as it regards the disabled. This issue may be of significance. Can the disabled be denied equal rights to physically abled people? No, of course not. But the failure to grant them legislated rights is not equivalent to a denial of equal rights. Under the Ninth Amendment, the enumeration of rights may not be construed to represent the denial of other rights.
As it stands, there are valid arguments that the First Amendment could abrogate any obligation of web site owners to provide accessibility. The US constitution could be interpreted to allow owners to make the decision that their information will not be accessible to disabled users.
It’ll be interesting to see what happens.