Press Release

Public Knowledge Rejects Charter’s Claim of First Amendment Protection from Discrimination Lawsuits

December 24, 2017

Today, Public Knowledge filed an amicus brief in National Association of African American-Owned Media, and Entertainment Studios Networks v. Charter, in the Ninth Circuit Court of Appeals.

In this case, Charter has claimed the the First Amendment protects it from a claim under the Civil Rights Act of 1866 (codified, as amended, at 42 U.S. Code § 1981), a Reconstruction-era law that forbids racial discrimination in contracting.  Public Knowledge filed to reject a reading of the First Amendment that would permit companies to avoid discrimination claims, and believes that the Plaintiffs deserve the opportunity to make their case.

The following statement can be attributed to John Bergmayer, Senior Counsel at Public Knowledge:

“Increasingly, corporate litigants invoke the First Amendment, not to protect genuine expressive activity, but to avoid regulation and evade oversight.  As here, this can even extend to arguments that the First Amendment provides a shield against claims of racial discrimination.

“Many of a cable company's routine business operations relate to the selection and transmission of programming. But while expressive activity and programming itself are protected by the First Amendment, the non-expressive business activities of a cable company are not.

“If courts accept Charter's argument, then the ability of Congress, the FCC, and the American people to regulate cable, telephone, wireless, and broadband companies in the public interest could be severely limited. As explained in our brief, however, both the law and sound policy reject Charter's claim.”

You may view the brief here.