Naaaom v. Charter Communications, Inc.
908 F.3d 1190
9th Cir.2018Background
- Entertainment Studios (African American–owned) sought carriage from Charter (third-largest cable operator) from 2011–2016 but Charter repeatedly declined, delayed, or gave shifting explanations.
- Plaintiffs alleged disparate treatment: Charter carried or expanded carriage for several white‑owned networks using similar models while refusing Entertainment Studios, and Charter executives made racially derogatory remarks to African American individuals.
- Plaintiffs sued under 42 U.S.C. § 1981 (refusal to contract because of race); district court denied Charter’s motion to dismiss and certified the order for interlocutory appeal under 28 U.S.C. § 1292(b).
- On appeal Charter argued (1) § 1981 requires but‑for causation (not motivating‑factor), (2) the FAC failed to plausibly plead discriminatory intent, and (3) the First Amendment bars the § 1981 claim as applied to editorial carriage decisions.
- The Ninth Circuit affirmed: it held mixed‑motive claims are cognizable under § 1981 (race need only be a factor), the FAC plausibly alleged § 1981 violations (disparate treatment plus racial remarks), and the First Amendment did not bar the claim because § 1981 is content‑neutral and survives intermediate scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation standard for § 1981 | Metoyer standard: motivating‑factor suffices; race need not be but‑for cause | Gross/Nassar require but‑for causation; § 1981 should follow | Mixed‑motive claims cognizable under § 1981; race as a factor suffices |
| Sufficiency of the FAC (plausibility) | Alleged disparate treatment (white channels carried), shifting/excuse explanations, and racial statements make discriminatory intent plausible | Charter’s race‑neutral business reasons (bandwidth, timing) defeat plausibility | FAC survives 12(b)(6): plaintiffs’ theory is plausible and not rendered implausible by Charter’s alternative explanations |
| First Amendment defense | § 1981 regulates discriminatory intent, not content; content‑neutral and narrowly tailored to prevent racial discrimination | Carriage decisions are expressive; enforcement would trigger strict scrutiny and bar § 1981 claim | § 1981 is content‑neutral; at most intermediate scrutiny applies and § 1981 survives it |
| Interlocutory jurisdiction / appealability | Plaintiffs sought immediate review of denial of dismissal | Charter sought interlocutory review | Court had proper § 1292(b) certification and exercised jurisdiction; affirmed denial of dismissal |
Key Cases Cited
- Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007) (previous Ninth Circuit adopting Title VII motivating‑factor approach for § 1981 claims)
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (textual analysis requires but‑for causation for ADEA claims)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation claims require but‑for causation; courts must look to statute text)
- Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (§ 1981 protects the right to make and enforce contracts against purposeful racial discrimination)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (cable operators engage in protected speech; content‑neutral regulations receive intermediate scrutiny)
- Runyon v. McCrary, 427 U.S. 160 (1976) (§ 1981 reaches purely private racial discrimination in contracting)
- Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (circumstantial evidence can suffice to show discriminatory intent)