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Ninth Circuit Not Convinced by First Amendment Right to Racial Discrimination Argument

By Christopher Coble, Esq. on November 21, 2018 | Last updated on March 21, 2019

Ten billion dollars sounds like an awful lot of money. But when you consider that the second largest cable operator in the country was allegedly systematically discriminating against black-owned media companies when choosing channels to carry, it's not hard to imagine that amount of financial cost.

That's what Byron Allen, founder and CEO of Entertainment Studios is claiming in a $10 billion lawsuit against Charter Communications. Charter tried to have the suit dismissed, arguing it has a First Amendment right to editorial discretion. But a district court and now the Ninth Circuit Court of Appeals have denied that request, pointing to "arguably-racist statements" by Charter executives and "continued stonewalling and provision of excuses that do not match up with Defendant's practices with non-African-American-owned companies."

Discretion or Discrimination

It wasn't just that Charter declined to pick up any of Entertainment Studios content. The lawsuit also pointed to direct evidence of racial bias. "In one instance," the suit claims, "[Charter's senior vice president of programming, Allan] Singer allegedly approached an African-American protest group outside Charter's headquarters, told them 'to get off of welfare,' and accused them of looking for a 'handout.'" In another alleged instance, Allen attempted to talk with Charter CEO Tom Rutledge at an industry event. Rutledge allegedly refused to engage with Allen, referred to him as "Boy," and told him he needed to change his behavior.

"Plaintiffs suggested that these incidents were illustrative of Charter's institutional racism," the Ninth Circuit panel wrote, "noting also that the cable operator had historically refused to carry African American-owned channels and, prior to its merger with Time Warner Cable, had a board of directors composed only of white men." That evidence was enough to call Charter's claims of race-neutral editorial discretion into question.

Channels, Content, Civil Rights, and the First Amendment

Additionally, Section 1981 of the Civil Rights Act of 1866 declares: "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."

Charter, in its request for dismissal of the suit, claims the statute amounted to content restriction, and therefore Allen's claims under the statute should be barred by the First Amendment. The Ninth Circuit was equally unimpressed by this argument:

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 ... Section 1981 prohibits Charter from discriminating against networks on the basis of race. This prohibition has no connection to the viewpoint or content of any channel that Charter chooses or declines to carry.

"Therefore," the court ruled, "the First Amendment does not bar Plaintiffs' § 1981 claim." Allen's $10 billion claims (also filed on behalf of other black-owned media companies) will go forward.

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