Court Again Rules That Cable Giants Can't Weaponize the First Amendment (techdirt.com)

Charter has been using the argument that their First Amendment rights are being violated as it fights off state lawsuits for its poor service. "It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN," reports Techdirt. "While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys 'editorial discretion,' the ruling by the U.S. Court of Appeals for the Ninth Circuit didn't agree." From the report: The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight: "As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios' claim of a legal violation -- a standard that might result in the claim being rejected. The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not 'automatically' require the court to use the tougher standard."

As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup: "The opinion on Charter's motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, 'boy' at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter's senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter's offices to tell them to 'get off of welfare.'"

Comments

"Weaponize"

[JOstrow]

I wish the court would rule that journalists and pundits must stop weaponizing the word "weaponize."

Re:"Weaponize"

[Shotgun]

The problem is that a cable provider can't run EVERY available producer due to bandwidth limitations. At some point, a decision has to be made. Are we seeing the 9th district interceding into a private financial negotiation?

sounds like a joke

[arbiter1]

This lawsuit sounds like a bad joke. No channel has right to force a provide to carry their channel. Don't even see how this even got past hearing stage. Why would a tv provider carry a channel if it isn't a channel people want? Its like forcing you to buy a car with features you don't want but they make you pay for them anyway.

Re:sounds like a joke

[Anonymous Coward]

I agree that providers aren't obliged to carry any channel, and there are good reasons for them to not do so. It's reasonable that a provider might not carry a channel because of disputes over which service tier a channel should be placed in, the subscriber fees and cost of carrying the channel, and low viewership. However, Charter's argument of "editorial discretion" is dubious. Charter carries a wide variety of channels ranging from religious content to channels dedicated to adult content. There's no evidence that any sort of "editorial discretion" in Charter's decisions.

Although there are a variety of over-the-top TV providers, the channel selection seems to be limited compared to large cable companies like Charter. Many consumers don't have good alternatives if they don't like Charter's choice of channels. Charter has a near-monopoly in many areas due to local franchise agreements. Should a company that is protected through regulatory barriers to entry be exercising "editorial discretion" and first amendment rights?

Note that Charter may win the lawsuit, and there may be legitimate reasons for them to refuse to carry many of the channels owned by this group. The court is just rejecting Charter's argument that the choice of what channels to carry amounts to exercising free speech.

Re:sounds like a joke

[gman003]

We have a law that says you can't use race as a discriminating factor in business decisions. All the court has ruled so far is that the law isn't invalid under First Amendment grounds, and the case will proceed to trial. There, it will be resolved by one side presenting evidence that race was the primary reason the channel wasn't carried, and the other side presenting evidence that they based their decision on some other factor.

If the litigants can prove that their channel was in high demand from consumers, that would be pretty strong evidence that some other concern played into the decision not to carry it. And on the other hand, if Charter and Comcast can show that few people wanted the channel, that pretty much clears them.

Re:sounds like a joke

[gman003]

That's not how taking cases to the Supreme Court works. Nobody, least of all the plaintiffs, can force them to take a case, they generally do so only when there's either a break between jurisdictions (Nth Circuit ruled one way, N+1th Circuit the other) or an actual dispute as to whether a law is constitutional. I would expect the long-term average for cases accepted by the Supreme Court to be around 50%, because they only take ones that are close.

Re:sounds like a joke

[goose-incarnated]

What is the standard of evidence here? If it's balance of probabilities then it seems like Charter is fucked.

While it's easy to point at people and call them racist, once you're in a court the balance of probabilities means you better have some fucking evidence.

In this case, all Charter has to do is literally point to a fuckton of non-black channels that they refuse to carry, and then the burden of crossing the 50% (BoP) hurdle lies with the claimants.

I'm guessing that they have next to no evidence that their channel is declined due to racism. Charter doesn't need to provide reasons for declining, while the claimant does.

Your particular usual standards on this forum is to simply make subjective claims, or claims based on subjective "evidence" (such as your "evidence" of sexism/misogyny in CS by pointing to declining female participation since the 80s).

Evidence that Charter refused to carry the channel is not evidence that it refused to do so on racist grounds. If the claimant cannot produce actual documentation that Charter refused on racist grounds, then this claim is going nowhere fast.

Re:sounds like a joke

[goose-incarnated]

If it's balance of probabilities then witness statements confirming racism, especially independent witnesses or multiple similar accounts, will carry a lot of weight.

Not if Charter already carries black channels, which they do.

Will they have access to Charter emails? I think they can ask the judge for access. Seems like some insight into their decision making process would be relevant. The judge might question why Charter was't providing those emails in its defence too, should they choose not to.

Just refusing to carry some non-black-owned channels is meaningless and doesn't help them, because they may have legitimate non-racist reasons for doing so.

Not if they already carry black channels, which they do.

All that matters is if racism was a factor with this channel.

And the claimant in this case appears to be fucked because Charter already carries black channels.

For all intensive purposes the 9th is normal

[tepples]

For all intensive purposes, the Ninth Circuit is no different from other circuits. While an extensive property, such as mass or number of rulings reversed per year, varies with an entity's size, an "intensive" property, such as density or fraction of rulings reversed, can be compared between smaller and larger entities.

Last I checked, the percentage of the Ninth Circuit's rulings that the Supreme Court reviews and ultimately reverses isn't that far out of line with other circuits. It's just that you hear about the Ninth so often because of its larger population.

Companies are not people

[ccady]

The first amendment does not apply to corporations. Peuple have rights. Corporations are fictions we make up, so we can apply whatever rules we want to them.