Naaaom v. Charter Communications, Inc.
915 F.3d 617
9th Cir.2019Background
- Entertainment Studios (African American–owned) sought carriage from Charter (large cable operator) from 2011–2016 but Charter repeatedly declined or delayed meetings and refused to contract.
- Plaintiffs alleged Charter gave pretextual, inconsistent reasons (bandwidth, timing, distrust of tracking model) while contemporaneously contracting with or expanding carriage for white-owned networks.
- Plaintiffs pleaded direct evidence of racial animus: alleged racially derogatory comments by Charter executives (Singer and Rutledge).
- Plaintiffs sued under 42 U.S.C. § 1981 for racially discriminatory refusal to contract; district court denied Charter’s Rule 12(b)(6) motion and certified the order for interlocutory appeal under 28 U.S.C. § 1292(b).
- Charter argued (1) § 1981 requires but-for causation (post-Gross/Nassar), (2) the complaint failed to plausibly plead discrimination, and (3) the First Amendment bars enforcement of § 1981 against editorial carriage decisions.
- The Ninth Circuit affirmed denial of dismissal: it held mixed-motive § 1981 claims are cognizable, Plaintiffs’ FAC plausibly alleged § 1981 liability, and the First Amendment did not bar the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation standard for § 1981 | § 1981 allows mixed-motive claims; need only show race was a factor denying the same right as white citizens | Post-Gross and Nassar require but-for causation, so mixed-motive recovery is not available under § 1981 | Court: § 1981 permits mixed-motive claims; plaintiffs need only plead discriminatory intent was a factor (not necessarily but-for cause) |
| Sufficiency of pleadings (Rule 12(b)(6)) | FAC alleges disparate treatment, contemporaneous favoring of white networks, and direct racial comments — plausibly shows race was a factor | Allegations consistent with neutral business reasons; channels may not be similarly situated, so pleadings are insufficient | Court: viewing allegations in plaintiff’s favor, FAC plausibly pleads § 1981; defendant’s neutral explanations not implausible enough to warrant dismissal |
| Applicability of Metoyer precedent after Gross/Nassar | Rely on Metoyer: borrow Title VII motivating-factor standard for § 1981 | Gross/Nassar undermine Metoyer; courts must focus on statutory text of § 1981 | Court: Gross/Nassar undercut Metoyer’s methodology; but § 1981’s text allows mixed-motive claims, so outcome remains mixed-motive rule but grounded in § 1981 text |
| First Amendment defense | § 1981 enforcement against carriage decisions is barred because carriage is expressive/editorial conduct | § 1981 is content-neutral and targets discriminatory intent, not program content; it survives intermediate scrutiny | Court: § 1981 is content-neutral, advances a significant government interest (preventing racial discrimination), is narrowly tailored, and therefore is not barred by the First Amendment |
Key Cases Cited
- Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (§ 1981 protects the right to make and enforce contracts against private racial discrimination)
- Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007) (prior Ninth Circuit application of Title VII mixed-motive principles to § 1981)
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (statutory text controls causation standard; ADEA requires but-for causation)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation requires but-for causation; courts must look to text for causation standard)
- Runyon v. McCrary, 427 U.S. 160 (1976) (§ 1981 reaches purely private racial discrimination)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (First Amendment principles for cable operators and intermediate scrutiny for content-neutral regulations)
- Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (evidentiary standards and circumstantial evidence may sustain discrimination claims)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. en banc 2003) (doctrine allowing departure from prior circuit precedent when later decisions clearly undercut earlier reasoning)