National Association of African American-Owned Media v. Charter Communications, Inc., No. 17-55723 (9th Cir. 2019)
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The Ninth Circuit granted a petition for panel rehearing, withdrew its prior opinion, and filed a superseding opinion with its order.
Entertainment Studios, along with NAAAOM, filed suit alleging that Charter's refusal to enter into a carriage contract was racially motivated and in violation of 42 U.S.C. 1981. The panel held that, although the Supreme Court's decisions in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), necessitated reconsideration of its section 1981 approach, the panel explained that a plaintiff in a section 1981 action need only prove that discriminatory intent was a factor in, and not necessarily the but-for cause of, a defendant's refusal to contract. In this case, the panel held that plaintiffs' allegations regarding Charter's treatment of Entertainment Studios, and its differing treatment of white-owned companies, were sufficient to state a viable claim pursuant to section 1981.
Finally, the panel held that the First Amendment did not bar plaintiffs' section 1981 claim. The fact that cable operators engage in expressive conduct when they select which networks to carry does not automatically require the application of strict scrutiny in this case. The panel held that section 1981 would satisfy intermediate scrutiny because it was a content-neutral statute and was narrowly tailored to serve a significant government interest in preventing racial discrimination.
Court Description: Civil Rights. The panel filed (1) an order withdrawing its prior opinion and denying, on behalf of the court, a petition for rehearing en banc, and (2) a superseding opinion affirming the district court’s denial of a cable television-distribution company’s motion to dismiss a claim that its refusal to enter into a carriage contract with an African American-owned operator of television networks was racially motivated, and in violation of 42 U.S.C. § 1981. In the superseding opinion, reconsidering the court’s approach to the causation standard for § 1981 claims under Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007), following the Supreme Court’s decisions in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), the panel held that a plaintiff need not plead that racial discrimination was the but-for cause of a defendant’s conduct, but only that racial discrimination was a factor in the decision not to contract such that the plaintiff was denied the same right as a white citizen. The panel concluded that Gross and Nassar undercut Metoyer’s approach of borrowing the causation standard of Title VII’s discrimination provision. The panel instead looked to the text of § 1981, and it held that mixed- motive claims are cognizable under § 1981.
This opinion or order relates to an opinion or order originally issued on November 19, 2018.
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