9th Circuit Advances Carriage Discrimination Claims Against Comcast, Charter
Though cable distributors are engaging in First Amendment-protected expressive conduct in choosing what networks to carry, Section 1981 of federal law covering racial discrimination doesn't seek to regulate content, but only the way those MVPDs reach editorial decisions, the 9th U.S. Circuit Court of Appeals ruled. Monday's decisions were in related appeals about alleged racial discrimination by Comcast and Charter Communications in programming choices.
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Prohibiting Charter from discriminating against networks on a racial basis isn't connected to the viewpoint or content of channels Charter chooses to carry, the court said in its docket 17-55723 opinion (in Pacer). The three judges upheld a lower court's 2016 denial of Charter motion to dismiss litigation brought by Entertainment Studios Networks and the National Association of African American Owned Media (ESN/NAAAOM) (see 1710260006). In a docket 16-56479 memorandum (in Pacer), the 9th Circuit reversed and remanded a decision by U.S. District Judge Terry Hatter of Los Angeles throwing out similar ESN/NAAAOM claims against Comcast (see 1610060002).
Courts too often turn the First Amendment "into a tool for deregulation" by arguing free-speech interests of business outweigh citizens' rights, said Public Knowledge, which filed an amicus brief in the Charter litigation (see 1712260007). It said Charter's arguments would ultimately mean the Constitution doesn't allow most regulation of cable ISPs since their services are a speech conduit. "Whether or not regulations are appropriate and in the public interest should be determined by the people and their representatives, not by courts inventing constitutional principles, nullifying civil rights legislation, and turning the First Amendment on its head," PK said.
The 9th Circuit cited its Charter decision in ruling ESN/NAAAOM made sufficient allegations to plausibly infer ESN faced disparate treatment from Comcast due to the race of its ownership and thus didn't get the same right to a contract as a white-owned company. Those allegations included a number of lesser-known white-owned networks like Outdoor Channel and BabyFirst Americas getting carriage when Comcast was telling ESN it was turned down because of a lack of bandwidth or carriage capacity, the court said.
The 9th Circuit said in the Charter opinion some past Supreme Court decisions run contrary to its use of Civil Rights Act Title VII standards to the Section 1981 federal law on racial discrimination, but it found a plaintiff in a 1981 action only has to prove discriminatory intent was a factor in a defendant's refusal to contract and not necessarily the cause of it. It said Charter's conduct plausibly could be due to "legitimate, race-neutral considerations," but those Charter arguments can't be read as so compelling as to make ESN/NAAAOM claims of discriminatory intent implausible.
“This lawsuit is a desperate tactic that this programmer has used before with other distributors," Charter said. "We are disappointed with today’s decision and will vigorously defend ourselves against these claims.” Comcast said it "respectfully disagree[s] with the Court’s decision ... and considering our options.”
Deciding both cases were 9th Circuit Judges Mary Schroeder, Milan Smith and Jacqueline Nguyen, with Smith writing the Charter opinion.