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In an important decision today, the 9th U.S. Circuit Court of Appeals held that cable operators do not have a First Amendment right to engage in discriminatory business practices. 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. Public Knowledge filed a brief in this case, arguing for this outcome.
The Civil Rights Act of 1866 was enacted after the Civil War to ensure that all American citizens enjoyed equal rights. Section 1 of the Act is still in force today. Specifically, it states that “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, […] 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[.]”
Plaintiffs, National Association of African-American Owned Media and Entertainment Studios Networks, argued that Charter's refusal to carry certain channels was racially discriminatory in violation of the 1866 Act. Charter responded that it has an absolute First Amendment right to carry whichever channels it wants, meaning that the 1866 Act could not apply to this kind of case. In response, the court held, “We disagree and conclude that the First Amendment does not bar Plaintiffs’ claim.”
The court also noted that in cases like this that regulate business conduct, and not the content of expression, “there is some ambiguity as to whether rational basis review or a heightened form of scrutiny ought to be applied.” But it found that, even applying a heightened form of review, the First Amendment did not bar Plaintiff's argument.
Whether or not Charter did engage in racially discriminatory conduct is now a question for the district court to determine.
The following can be attributed to John Bergmayer, Senior Counsel at Public Knowledge:
“The First Amendment is a tool for promoting free expression. Too often, though, courts have turned it into a tool for deregulation, arguing that the purported free speech interests of billion-dollar companies outweigh the rights of citizens to be informed, to communicate, and to participate in the public sphere. Even now, broadband providers are arguing that they have a First Amendment right to block websites or interfere with users’ rights to use lawful online services.
“Here, Charter put forth arguments that, if taken to their logical conclusion, would mean that the Constitution barred nearly all regulation of cable companies and broadband providers, as their services are a conduit for speech. But whether or not regulations are appropriate and in the public interest should be determined by the people and their representatives, not by courts inventing constitutional principles, nullifying civil rights legislation, and turning the First Amendment on its head.
“We are extremely pleased that the court agreed with our brief and rejected these arguments.”
You can view the court’s decision here.