Paying homage to the adorable fish-feeding story from “Mr. Rogers Neighborhood” is a fun detour before exploring Egbert v. Boule’s inserted images. The true story shows how “accessibility” work includes producing information that is perceivable to different audiences (or, perhaps, users).
Five-year-old Katie’s fan letter had a simple request of Mr. Rogers:
“Dear Mister Rogers, Please say when you are feeding your fish, because I worry about them. I can’t see if you are feeding them, so please say you are feeding them out loud.”
The note concluded with a contextual message from Katie’s father:
“(Father’s note: Katie is blind, and she does cry if you don’t say that you have fed the fish.)”
You see: At some point, Katie learned that Mr. Rogers Neighborhood included a fish tank. Because she never heard Mr. Rogers say that he was feeding the fish (even though the “viewing” TV audience could watch him do that), Katie worried that the fish were hungry.
An honest perception, right? Katie relied on “hearing” to understand her surroundings.
Mr. Rogers—of course—was happy to oblige. He began to narrate himself feeding the fish each episode with, “I’m feeding the fish.”
Upworthy has a separate post with the video clip of Mr. Rogers mentioning that “I need to feed the fish right away. I have some friends who get very concerned when I forget the fish during our visits.”
Fast forward to this week, I wonder what Katie would think about how the uncaptioned images were recently inserted in Justice Thomas’s Egbert v. Boule written opinion. Here is one example (you’ll soon appreciate why the first page is text only).
Consider two perspectives.
First, imagine being unsighted and having to rely on screen-reader technology to read digital information—like a SCOTUS opinion. Does the existing text, without a descriptive caption for the image (on the next page), allow the reader to understand what the image is supposed to represent?
Second, imagine reading the SCOTUS opinion online as published by other digital services. Many of them only publish the text—no images or emojis. Consider this excerpt from Justia’s version that leaves out the image.
Agent Egbert grew suspicious, as he could think of “no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine.” Id., at 104. The photograph below displays the amenities for which Boule’s Turkish guest would have traveled more than 7,500 miles. See id., at 102.
Later that afternoon, Agent Egbert observed one of Boule’s vehicles—a black SUV with the license plate “SMUGLER”—returning to the Inn.
See the problem? We really don’t know what the photo displays or the author’s intent for inclusion.
Chicago-Kent College of Law professor Nancy Marder recently shared with Tony Mauro, “I’m not sure why [Thomas] thought the photos were necessary. The first does show the stones that lead to the Inn, and the second does show that the Inn is not very upscale. At least he refers to the second photo in the text of his opinion and mentions why he included the photo to show the Inn is not very upscale. But of course, he could have just said that in the text, as he did!”
The solution is fortunately easy: image captions.
Below the image, the Court could list: Figure [insert number]. And then add a text description of the image. This text will re-appear in text-based online versions of the opinion and it can be read by screen-reading technology.
And we know this works!
This is what appears in the Google Scholar version for the text caption added to the image in Appendix A of Justice Breyer’s opinion in Shurtleff v. Boston:
“The flagpoles outside Boston City Hall fly the American flag, the Commonwealth of Massachusetts flag, and the city flag, side by side, on an ordinary day.”
What does the original Appendix A look like?
That simple practice of adding a text label now makes the informative image “accessible” to (1) those who rely on screen-reading technology, and (2) those who will retrieve the opinion using other electronic means and will not see any images. Like Katie, these public users will also now know what is in the court’s opinion (or order).
If the image is important enough to include, it is also important enough to add a text label so that other consumers can appreciate the image’s value just as much.