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Court Gives Go-Ahead to Racial Bias Case Against Cable Giant

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

Byron Allen started his career as a comedian, but he wasn't afraid to talk about serious subjects.

In his first television appearance, he stood in front of an audience and joked about his parents beating him as a child. When he grew up to be a television producer, however, he got tired of getting knocked around.

In National Association of African American-Owned Media v. Charter Communications, Allen sued a cable giant for discriminating against African American media companies. Free speech advocates applauded.

First Amendment "Weaponized"

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 panel said.

"In a time when the First Amendment is often 'weaponized' to serve the business interests of large corporations instead of furthering free expression, this is a welcome decision," said Public Knowledge, which filed a brief in the case.

Civil Rights Act of 1866

The decision hails back to 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. "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."

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