000622	05.wma
000000	Clifford R. Michel:  In the last segment, Mark, you indicated the split in the Circuits about whether the Internet was a place of public accommodation
000008	and would likely lead to this issue being taken up by the Supreme Court.
000012	If it does go to the Court, how do you think it'll be decided?
000015	Mark Howitson:  Well, a lot of people make a lot of money trying to predict the Supreme Court, but the only thing I know for sure is that no one can.
000021	But let me say this, I do think it's an issue that the Supreme Court is likely to take up sooner or later.
000027	Whether it's with the Target case or others, I don't know.
000029	But the first thing the Court's going to do, I think, is look to the legislative intent.
000034	And clearly, with that, they're not going to draw much, because, obviously, the ADA,
000039	as we mentioned before, was established at a time when the Internet really wasn't anything like what it is today.
000045	And so the legislative intent of the American Disabilities Act is not going to give a great deal of guidance on this issue.
000050	It is clear, however, from the legislative intent that the legislature intended the ADA to be broad in its interpretation to give remedial effect to its purpose.
000100	That the purpose is to remediate, to give people the opportunity to gain access to these places of public accommodation, and is intended to be read broadly.
000109	Now, even with that in mind, if you look at the history of the US Supreme Court's case log dealing with the ADA, they've done nothing like that.
000116	The ADA, at least the US Supreme Court in particular with respect to ADA rulings in other arenas, has been particularly narrow.
000125	In fact, some one criticized the Supreme Court as almost reading the American Disabilities Act out of practical existent for most employers.
000130	But that's not what we're talking about.
000132	We're talking about just simply whether or not the Internet is a place of public accommodation
000136	and legislative intent isn't going to be of terrific support one way or the other on this issue except to the extent that the idea was that the ADA
000145	was to be broad and to give people access.
000147	The ADA has been interpreted in this context before in the PGA Tour versus Martin case.
000154	In that case in general what happened was there was a professional golfer named Casey Martin who had, I believe from birth,
000202	a disability that affected the circulation in one of his legs and he asked that he would be given the opportunity
000208	or ability to use a golf cart to drive the course instead of being required to walk,
000215	which are PGA rules that you're required to walk the last at least in certain tour events.
000222	And the US Supreme Court got involved in the case and relatively quickly determined that PGA was, in fact, operating in a place of public accommodation
000232	and determined that he was entitled to a reasonably accommodation in the form of a golf cart.
000237	So what you can say from that is they could have gone the road in that case of deciding that well,
000244	the PGA is nothing other than a company that operates tournaments and all they do is lease golf courses and encourage people to pay entry fees
000252	and then they have golf tournaments which are televised by CBS or something.
000256	And they could have taken a position well, therefore, the PGA Tour is nothing more than just that.
000303	It is not a place of public accommodation.
000305	But they sort of jumped right over that and had no problem concluding that well, what they're doing here is operating on a golf course.
000311	That's certainly a place of public accommodation.
000313	So, therefore, we're going to require the PGA Tour, which is simply operating a tournament at a golf course that it leased, and say well,
000322	you're a place of public accommodation now, so you need to comply and Martin needs to get his golf cart
000327	so he can drive the golf cart rather than walk the course during his tour.
000331	But in that case, the ADA was interpreted rather broadly.
000335	And so, we can look at that and say, they didn't have any problem in that case determining that a place of public accommodation
000341	included the golf course operated by the PGA.
000344	And then finally, there is some guidance given to us by the Department of Justice that's charge with overseeing the American Disabilities Act.
000353	Senator Harkin, back in 1996, I think it was 1996, he wrote a letter to the Department of Labor asking for an opinion
000401	or some assistance for one of his constituents to determine whether or not in the Department of Labor's view the Americans with Disabilities Act
000408	would cover Internet websites.
000411	And in that opinion letter, the Department of Justice concluded that covered entities that use the Internet for communications regarding their programs would be
000423	and must be prepared to offer those communications through accessible means, as well.
000427	So if you look at the opinion letters, if you look at some of the ADA history and you can come to the conclusion that a bricks a mortar retailer with an
000445	Internet website should be prepared that it's going to have a ruling that says that its website needs to be
000451	such that a person who's visually impaired can make access as well as people who are hearing impaired as well.
000458	So the bottom line here is I think that the Supreme Court's probably going to have no trouble coming to the same conclusion,
000503	perhaps maybe for different reasons than Patel, but I think that's probably where we're headed.
000507	Certainly, that's what I'm telling clients now is you need to be thinking about the possibility that that's ultimately going to be the law of the land here
000514	and let's start to make plans that way.
000517	Now, I may be wrong and the Supreme Court has shifted, frankly, to one direction in the last couple of years with President Bush's appointments.
000526	And it could be that that shift means that the ADA will not be read as broadly as it has been historically.
000533	And it could be that they take some strict construction view of it.
000537	In fact, in the PGA Tour case versus Martin, two of the Justices that are currently on the Supreme Court dissented and disagreed with that.
000547	And it doesn't take that much more in order to get a ruling in your favor on the Supreme Court
000553	and that walking in I think you have to conclude that those two are not going to rule with Patel.
000557	The question is whether the two most recent appointments would rule with Patel.
000600	They probably won't, but who knows, and so you're looking at potentially four votes against.
000607	Who knows whether or not they're going to get the five votes for that they need.
000609	But in any case, that's where we are.
000611	I think my view is that they're probably going to come down in the favor of saying that the ADA is broad enough to call the Internet a place.
000617	Clifford R. Michel:  That's very interesting, Mark.
000620	Thank you.
000621