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Cable Companies Don't Have a Free Speech Right to Discriminate in Programming

By William Vogeler, Esq. on November 23, 2018 | Last updated on March 21, 2019

Byron Allen, a comedian-turned-producer, hasn't worried too much about racial censors in his career.

He once called President Barack Obama a white president in black face. In a later meeting with Obama, he used the "N-word" to complain about a business issue.

Now Allen is suing a major cable company for racial discrimination. So far, free speech is on his side.

Free Speech -- Not

Allen sued on behalf of his company, Entertainment Studios Network, and other media businesses owned by African-Americans. They said Charter Communications refused to carry certain channels for racial reasons.

The cable company asked a judge to dismiss, saying it had a First Amendment right to editorial choices in programming. The judge denied the motion, and the U.S. Ninth Circuit Court of Appeals affirmed.

The appeals court said the plaintiffs had a viable claim that Charter treated companies differently. And it wasn't necessary to prove discrimination was the primary reason, the judges said.

Right to Contract

In a unanimous decision in National Association of African American-Owned Media v. Charter Communications, the panel said cable companies cannot discriminate based on race.

The decision was based on the Civil Rights Act of 1866, enacted after the Civil War to ensure American citizens were treated equally. It says "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts."

"Section 1981 guarantees 'the same right' to contract 'as is enjoyed by white citizens,'" Judge Milan D. Smith, Jr. wrote for the court.

Allen wants $10 billion in damages in the case. He's not joking, but that's another story.

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