Court Again Rules That Cable Giants Can't Weaponize the First Amendment

Charter has been using the argument that their First Amendment rights are being violated as it fights off state lawsuits for its poor service. 'It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN,' reports Techdirt. 'While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys 'editorial discretion,' the ruling by the U.S. Court of Appeals for the Ninth Circuit didn't agree.' From the report: The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight: 'As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios' claim of a legal violation -- a standard that might result in the claim being rejected. The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not 'automatically' require the court to use the tougher standard.'

As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup: 'The opinion on Charter's motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, 'boy' at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter's senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter's offices to tell them to 'get off of welfare.''

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