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

from the no-luck,-try-again dept

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn’t gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.

Charter Spectrum, the nation’s second biggest cable operator, has been trying to embrace this argument a lot lately as it fights off state lawsuits for terrible 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.

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 (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn’t agree. 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.”

Consumer groups like Public Knowledge were quick to applaud the ruling, happy to see another effort to “weaponize” the First Amendment shot down. The district court will now proceed to determining whether Charter did engage in racially discriminatory conduct.

“Holding us accountable for absolutely anything violates our free speech” rights was historically something telecom lobbyists often just throw at a wall in a bid to see if it sticks. But these efforts have escalated in the last few years. For example FCC staffers under Ajit Pai, at this point nearly indistinguishable from big telecom lobbying efforts, have even tried to claim that community-run broadband (an organic, voter-approved response to terrible service) is a threat to free speech, a charge there’s absolutely zero supporting evidence for.

It’s a legal argument giant ISPs have also embraced more recently in large part because they hope that new Justice Brett Kavanaugh, who bought into some of these arguments during previous net neutrality battles, will ultimately be a deciding vote should many of these battles wind their way to the Supreme Court. So far, however, these efforts haven’t worked out all that well, and while that’s not likely to change when the net neutrality court fight kicks off next February, it could be an important issue should that fight make its way to the highest court in the land.

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Companies: charter spectrum, esn

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Comments on “Court Again Rules That Cable Giants Can't Weaponize The First Amendment”

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26 Comments
Mason Wheeler (profile) says:

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn’t gone so well.

Can you blame them for trying, though? It worked for the financial folks who gave us the 2008 crisis…

Gary (profile) says:

Re: These are the execs of one of the biggest cablecos in the US?!

On the other hand, shouting at protesters outside your office is not exactly relevant in regards to what channels they do or don’t carry.
And the protesters were protesting specifically because the cable co had already decided not to carry the channel in question, right?
So – yes, he is a POS for making derogatory comments to protestors. But how should that color the decision not to carry? I’m sure they will lay out a very clear financial case for their decision.

Anonymous Coward says:

Re: Re: These are the execs of one of the biggest cablecos in the US?!

I think the mention of shouting at protestors is simply another example of the bigoted type of behavior alleged to have affected the decision not to carry.

Of course, the decision could have been solidly financial, even if the personal …uh, preferences… of some executives added some weight to the decision, or simply came out when dealing with ESN, protestors, or whomever else.

Ehud Gavron (profile) says:

Cable companies... are ... cable companies

I love it when cable companies are called ISPs…

except…

ISPs don’t air cable TV and don’t include or exclude ESN or any other network… because… um… they’re ISPs, not cable TV companies.

(Hint: there’s nothing in this article about their provision of Internet Services)

E

Ehud Gavron (profile) says:

Re: Re: Cable companies... are ... cable companies

Yeah, Charter is not “an ISP that also offers cable TV services.” They’re a cable TV company that also offers Internet services.

This article isn’t about Internet, Internet Service, nor Internet Service Providers (ISPs).

It’s 100% about a CABLE TV company refusing to carry a TV NETWORK on their CABLE TV network.

Nothing to do with any other products they may or may not offer.

If they also had a nice lobby with flowers you could buy you wouldn’t call them a florist, would you?

Is there any point to asking me if there’s any point? Precision in language is key to meaning transfer… which is the point of communication.

Have a swell day, and thanks for posting anonymously. Did you feel your words were so unwelcome you couldn’t stand behind them… or do you work for Charter?

E

E

Thad (profile) says:

Re: Re: Re: Cable companies... are ... cable companies

Precision in language is key to meaning transfer… which is the point of communication.

You know what isn’t helpful to effective communication? Constantly starting tangents where you nitpick somebody’s word choice instead of engaging with the subject they’re actually talking about.

You’re an insightful guy and you add a lot to the discussion when you want to. It’s a pity you so often prefer to complain about people using words in a way you don’t like.

Jess Passin says:

Re: Re: Re:2 Cable companies... are ... cable companies

You know what isn’t helpful to effective communication? Constantly starting tangents where you nitpick somebody’s word choice instead of engaging with the subject they’re actually talking about.

You’re up there for lack of self-awareness combined with self-important. You and Ehud have half the comments on NOTHING about topic. Sheesh.

That’s why you put this epic online:

http://www.corporate-sellout.com/2015/10/15/pests/

Anonymous Coward says:

Re: Re: Re: Cable companies... are ... cable companies

Charter is a cable TV company that provides Internet services. They are also an ISP that provides Cable TV services. They are an ISP. As long an aspect of the company provides Internet connections, they are an ISP. It is accurate to refer to them as an ISP, and to lambast them for their anti-consumer actions in whatever realm they happen to be operating in.

Does your nitpicking on the terms used have a point?

Thad (profile) says:

Re: Re: Re: Cable companies... are ... cable companies

I see one incorrect use of "ISP":

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 (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn’t agree.

You are correct that that shouldn’t have said "ISP". It’s not terribly relevant to the discussion, but sure, it’s a fair cop, like most of your frequent typo corrections.

The other times "ISP" is used in the article, it’s as part of a broader comparison to the arguments cable and wireless companies have used in the net neutrality debate. This is relevant, because the arguments these companies have made in their capacity as ISPs are similar to the one that Charter made in its capacity as a cable TV provider in this story.

Jess Passin says:

As I've been saying: Section 230 does NOT make corps censors!

But Masnick is for corporations CONTROLLING the speech and outlets of "natural" persons. He repeats it often, can’t be mistaken. From last year:

"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content-free-speech.shtml

Masnick is not hedging "lawyers say and I don’t entirely agree", or "that isn’t what I call serving The Public", but as VERY RARE for him STATES FLATLY. By deeming it a fundamental "Right", Masnick STATES that he wants a few corporations to have absolute and arbitrary control of ALL MAJOR outlets for The Public! He claims that YOUR Constitutional First Amendment Right in Public Forums are over-arched by what MERE STATUTE lays out!

Masnick flips the First Amendment from protection for "natural" persons into a POWER for use by corporations!

John Smith says:

Re: As I've been saying: Section 230 does NOT make corps censors!

As I’ve posted before, Section 230 is only a problem because it harms individuals who have no recourse to protect their reputations. A notice-and-takedown system consistent with distributor liability in the offline world would fix this and leave 230 intact. A “distributor” of defamation is NOT the publisher.

Big Internet has been censoring the public since AOL did it in the 1990s, and they were the only game in town at one point, far more powerful than the oligopoly we have now. That problem fixed itself in part through USENET, which no internet company can control, and through the marketplace, where what used to be SPAM is now welcome company “branding” on social media. Using Twitter to promote your business is fine, while using AOL to do it in 1996 would have gotten you unplugged from the internet equivalent of Studio 54. Common-carrier status on internet companies should be an absolute last resort, one we have never needed, and likely never will need. Gab stepped in where Twitter refused to stay when it began censoring people. Twitter itself built an audience with free-speech policies and only raised that drawbridge once their audience was large. A hungry tech startup will always be there to grab a silenced audience. This ahs been the case for twenty-five years.

What I don’t like about Section 230 is that it leaves people defenseless against anonymous defamation. Making a company prove it was not the author of content by naming the author would prevent this problem, and applying distributor liability would as well. Some 4Chan person posting to an obscure forum should not be able to destroy someone’s reputation by relying on search engines to amplify the defamation, take it out of context, and make it searchable to a global audience of people like employers. This is sheer madness, and AUS and UK do not go along with this, nor should the US.

Recent court decisions have found court-ordered internet bans of criminals to be questionable, so law-abiding citizens should have similar rights. It is possible to censor users without unplugging them, if one wants middle ground.

Anonymous Coward says:

Re: Re: As I've been saying: Section 230 does NOT make corps censors!

Too bad for you, it turns out that your accuracy with notice-and-takedown systems is pretty shit too.

What are you still doing on a distraction site instead of writing self-help books or injecting more influence into Hollywood? Or did the mention of Masnick put another twist in your panties?

Bergman (profile) says:

Shooting yourself in the foot, with an anti-tank weapon

“quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.”

If ISPs actually did engage in the sort of content creation or editorial control necessary to validate their first amendment claims, that would cause CDA 230 to not apply to them, since Section 230 only applies to hosting the content of others.

But if they really want to make that argument, it will be expensive for them — remember, statutory damages for copyright violations can be up to $150,000 per violation!

That One Guy (profile) says:

Re: Shooting yourself in the foot, with an anti-tank weapon

Oh never mind copyright, if they want to play that game they’d open themselves up for a whole slew of charges that would make copyright fines look trivial, charges which carry prison terms rather than just monetary fines.

Distribution of child porn, defamation, slander, drug deals and other criminal activity… They really, really have not thought that argument through, as if they are in active editorial control then they become responsible for what they ‘chose’ to post/allow through, and at that point the potential jail time could easily reach record breaking amounts.

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