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Charter, Comcast don't have 1st Amendment right to discriminate, court rules
A US appeals court ruling today said that cable companies do not have a First Amendment right to discriminate against minority-run TV channels.
Charter, the second-largest US cable company after Comcast, was sued in January 2016 by Byron Allen's Entertainment Studios Networks (ESN), which alleged that Charter violated the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN. Allen, a comedian and producer, founded ESN in 1993 and is its CEO; the lawsuit seeks more than $10 billion in damages from Charter.
Charter argued that the case should be dismissed, claiming that the First Amendment bars such claims because cable companies are allowed "editorial discretion." But Charter's motion to dismiss the case was denied by the US District Court for the Central District of California, and the District Court's denial was upheld unanimously today by a three-judge panel at the US Court of Appeals for the 9th Circuit.
UPDATE: The appeals court also ruled against Comcast in a similar civil rights case in which ESN seeks more than $20 billion. Comcast had argued in a brief that "the First Amendment prohibits plaintiffs from suing to alter Comcast's selection of a programming lineup." But today's ruling allows ESN's lawsuit against Comcast to proceed as well.
[...] The ruling against Charter's First Amendment claim was applauded by consumer advocacy group Public Knowledge, which previously filed a brief disputing Charter's argument.
"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," Public Knowledge Senior Counsel John Bergmayer wrote today.
Bergmayer noted that broadband providers have also claimed that the First Amendment should nullify net neutrality rules that prohibit them from discriminating against websites.
"The First Amendment is a tool for promoting free expression," Bergmayer wrote. "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."
Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.
(Score: 4, Insightful) by c0lo on Thursday November 22 2018, @07:37AM (1 child)
The ruling says that the 1st amendment does not grant Charter/Comcast the right to refuse to carry ESN.
But the ruling does not imply anything on the merit of ESN suit or whether or not the 'Civil Rights Act of 1866' is a good base for that suit.
It only means that the ESN suit(s) can go ahead and other courts will have their say in the matter.
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 2, Insightful) by Anonymous Coward on Thursday November 22 2018, @02:12PM
Yes, a motion to dismiss is a very early procedural motion in a civil suit, is filed for basically everything, and the court has not made any ruling other than on the validity of the motion. As far as these sort of articles go this one is surprisingly not terrible. Headline is pretty bad though.
A motion to dismiss by the defendent basically means "so what if I did?". The defendent argues "even if everything the plaintiff alleges were true, then there is no statute that entitles them to any damages so there is no point in a trial". The court has said, in essence, that the plaintiff in this case could potentially be entitled to damages if they can prove something, so there is a purpose to continuing with the trial. They have not made any decision on whether the plaintiff can prove anything.
Likely the next part of the process will be a motion of summary judgement by the defendent, where the defendent will argue "you have no proof!". At this point the plaintiff will be asked to show they have any evidence for their allegations. The court will take any evidence presented as truth and will consider whether such evidence could potentially prove the plaintiff's case. The court will not decide at this point whether the evidence does prove anything, but media will certainly report it that way. The headline will be something like "Court rules that Charter discriminated against ESN!"