Charter Cable Does Not Have the Right to Discriminate the First Amendment, the Rules of the Court

A US court of appeal said today that cable companies do not have the right to vote on the first discriminatory amendment for minority-owned television channels.

Charter, the second-largest US cable television company after Comcast, was sued in January 2016 by Byron Allen's Entertainment Studios Networks (ESN), which alleged that Charter violated the Civil Rights Act of 1866 by refusing to broadcast managed TV channels. by the African-American group. ESN, owned by Allen, a comedian and producer, founded ESN in 1993 and is the CEO. the lawsuit seeks more than $ 10 billion in damages from the Charter.

Charter argued that the case should be dismissed, stating that the First Amendment excluded such applications, as the cable companies had the "power of editorial discretion". But Charter's motion in court was dismissed by the US District Court for the Central District of California, and the denial of the district court was unanimously upheld today by a panel of three judges of the US Supreme Court. United States call for the 9th circuit.

The charter must not discriminate

Charter argued that "the ESN claim is outlawed by the first amendment because laws of general application can not be used" to force cable companies to accept channels that they do not not wish to broadcast ", said the court of appeal.

But while cable companies have speech protections under the First Amendment, they are not free to discriminate on the basis of race, the panel said. Section 1981 of the US Act, which guarantees equal rights in the conclusion and execution of contracts, "is not intended to regulate contents Charter, but only in the way it makes its editorial decisions – that is, without discriminatory intent, "wrote the judges.

"Article 1981 prohibits the Charter from discriminating against networks on the basis of race," the judges also wrote. "This prohibition has no connection with the view or content of the channels that Charter chooses or refuses to broadcast."

That the Charter violates civil rights law with its treatment of ESN remains to be determined. Today's court order authorizes ESN to continue its action against the Charter in a US District Court.

In addition to rejecting the First Amendment Charter defense, the Court of Appeal also found that "the complainants' allegations concerning the treatment of the African-American-owned operator and the its differential treatment of wholly-owned companies was sufficient to state a viable demand under the [Section] 1981. "The judges" held that a plaintiff did not have to plead that racism was the reason for being the defendant's behavior, but only that racism was a factor in the decision to not to contract in such a way that the plaintiff was denied the same right as a white man. citizen."

Charter promised to continue his defense. "This trial is a desperate tactic that this programmer has already used with other distributors," Charter said in a statement delivered to Ars. "We are disappointed with today's decision and will vigorously defend these claims."

The decision of the Court of Appeal summarized some of the claims against the Charter:

In addition to recounting the failure of Entertainment Studios 'negotiations with the Charter, the plaintiffs' amended claim also included direct evidence of racial bias. In one case, [Charter VP of programming Allan] Singer reportedly contacted a group of African-American protesters outside the headquarters of the Charter to ask them to "get out of welfare" and accused them of looking for a "document". The plaintiffs claimed that after informing the Charter of these allegations, they announced that Singer was leaving the company. In another presumed case, the Entertainment Studios owner, Allen, tried to speak with the CEO of Charter, [Tom] Rutledge, at an industry event; Rutledge refused to hire, calling Allen "Boy" and telling him that he had to change his behavior. The complainants suggested that these incidents illustrated the institutional racism of the Charter, also noting that the cable operator had always refused to broadcast African-American owned channels and that, prior to its merger with Time Warner Cable, its cable board Administration was composed only of white men. . The amended complaint further alleged that the recent diversity commitments of the Charter were only illusory attempts to placate the Federal Communications Commission (FCC).

The eight ESN networks are Cars.TV, Comedy.TV, ES.TV, JusticeCentral TV, MyDestination.TV, Pets.TV, Recipe.TV and The Weather Channel.

1st Amendment is not a "deregulation tool"

The consumer advocacy group, Public Knowledge, applauded the decision against the First Amendment to the Charter, which had already filed a brief argument challenging the Charter.

"The Charter has advanced arguments that, if they lead to their logical conclusion, would mean that the Constitution prohibits virtually all of the regulation of cable companies and broadband providers because their services are a means of say, "said today the Senior Public Knowledge Advocate, John Bergmayer.

Bergmayer noted that broadband providers have also claimed that the First Amendment should cancel the rules of internet neutrality that prohibit them from discriminating against websites.

"The First Amendment is a tool for promoting freedom of expression," wrote Bergmayer. "Too often, however, the courts have turned it into a tool of deregulation, claiming that the so-called $ 1 billion business interests in freedom of speech outweighed the rights of citizens in Canada. to be informed, to communicate and to participate in the public sphere Even now, broadband providers argue that they have the right of first amendment to block websites or interfere with the right of users to use legal online services. "

Disclosure: The Advance / Newhouse partnership, which owns 13% of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, who owns Ars Technica.