Metropolitan News-Enterprise


Tuesday, November 20, 2018


Page 3


Ninth Circuit:

Mixed-Motives Can Support Discrimination Claim Under §1941


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeal yesterday affirmed the denial of a motion to dismiss a civil rights action by an African American-owned company that operates of television networks against Charter Communications, the third-largest cable television-distribution company in the nation, for declining to carry its programing.

The opinion, by Circuit Judge Milan Smith, upholds a decision by U.S. District Court Judge George Wu of the Central District of California.

Charter Communications argued that plaintiff Entertainment Studios Networks, Inc., owned by comedian/producer Byron Allen, has not shown that that “but for” racial animus, its programming would be carried.

Entertainment Studios brought the action under 42 U.S.C. §1941 which provides:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens….”

Interpretation Rejected

Smith wrote:

“Charter contends that the most natural understanding of the ‘same right’ language is… but-for causation. We disagree….

“If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen. This, we conclude, is the most natural reading of § 1981.”

The jurist said that the plaintiff’s allegations “regarding Charter’s treatment of Entertainment Studios, and its differing treatment of white-owned companies, are sufficient to state a viable claim pursuant to § 1981.”

First Amendment Argument

Charter argued that in choosing what programming to carry, it engages in expressive conduct which is protected by the First Amendment, which cannot be statutorily abridged. Smith said the contention does not spark strict scrutiny, as Charter insisted, explaining:

“If § 1981 is a content-neutral statute, then, at most, it would be subject to intermediate scrutiny.”

It is,  he declared, such a statute, explaining:

“Section 1981 does not seek to regulate the content of Charter’s conduct, but only the manner in which it reaches its editorial decisions—which is to say, free of discriminatory intent.”

To pass intermediate scrutiny, Smith noted, the statute must be narrowly tailored to achieve a legitimate governmental objective.

“Here, the only activity within § 1981’s ambit is discriminatory contracting, which is, indisputably, an appropriately targeted evil,” Smith wrote. “Therefore, § 1981 is narrowly tailored and would survive intermediate scrutiny.”

Also opposing the appeal was co-plaintiff National Association of African American-Owned Media (“NAAAOM”).

The case is NAAAOM v. Charter Communications, Inc., No. 17-55723.

Memorandum Opinion

Also filed yesterday was a memorandum opinion in NAAAOM v. Comcast Corporation, No. 16-56479. There, the same panel—comprised of Smith and Circuit Judges Mary M. Schroeder and Jacqueline H. Nguyen—cited its published decision in NAAAOM v. Charter Communications, Inc. in reversing the dismissal with prejudice, by District Court Judge Terry Hatter of the Central District of California, of an action based on Comcast’s decision not to carry Entertainment Studios’s programming.

Comcast, the opinion notes, is the largest cable company in the United States.

The pleading “includes sufficient allegations from which we can plausibly infer that Entertainment Studios experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company, which violates § 1981, the opinion says, elaborating:

“These allegations include: Comcast’s expressions of interest followed by repeated refusals to contract; Comcast’s practice of suggesting various methods of securing support for carriage only to reverse its position once Entertainment Studios had taken those steps; the fact that Comcast carried every network of the approximately 500 that were also carried by its main competitors (Verizon FIOS, AT&T U-verse, and DirecTV), except Entertainment Studios’ channels; and, most importantly, Comcast’s decisions to offer carriage contracts to ‘lesser-known, white-owned’ networks (including Inspirational Network, Fit TV, Outdoor Channel, Current TV, and Baby First Americas) at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity.”

Entertainment Studios’s eight networks are Automotive.TV, Cars.TV, Comedy.TV, ES.TV, Justice Central, MyDestination.TV, Pets.TV and Recipe.TV.


Copyright 2018, Metropolitan News Company