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"In addition to recounting Entertainment Studios' failed negotiations with Charter, Plaintiffs' amended complaint also included direct evidence of racial bias.

"In addition to recounting Entertainment Studios' failed negotiations with Charter, Plaintiffs' amended complaint also included direct evidence of racial bias. In one instance, [Charter VP of programming Allan] Singer allegedly approached an African-American protest group outside Charter's headquarters, told them "to get off of welfare," and accused them of looking for a "handout." Plaintiffs asserted that, after informing Charter of these allegations, it announced that Singer was leaving the company. In another alleged instance, Entertainment Studios' owner, Allen, attempted to talk with Charter's CEO, [Tom] Rutledge, at an industry event; Rutledge refused to engage, referring to Allen as "Boy" and telling Allen that he needed to change his behavior. Plaintiffs suggested that these incidents were illustrative of Charter's institutional racism, noting also that the cable operator had historically refused to carry African-American-owned channels and, prior to its merger with Time Warner Cable, had a board of directors composed only of white men. The amended complaint further alleged that Charter's recently pronounced commitments to diversity were merely illusory efforts to placate the Federal Communications Commission (FCC)." - The evidence of discrimination is extremely weak. None the things mentioned ("get off of welfare", "handout", "boy", "change his behavior") is necessarily racism. But the result is not surprising, since the ruling is from the 9th Circuit. A side note. This kind of law suit properly will increase implicit racial bias, because it is trying to reenforce the idea that welfare and bad behavior only or strongly links to African Americans. See: Even completing a Race Implicit Association Test increases implicit racial bias: https://psyarxiv.com/vxsj7/ https://psyarxiv.com/vxsj7/

ggggtez 8y ago
Comcast/Charter was trying to say 1st amendment allows them to discriminate based on race (in essence, similar to the Cake-shop ruling). The ruling just says that the companies do not have that right. The plaintiff still needs to prove it happened, but that's what the trial is for.
- 0x8BADF00D 8y ago
  Not sure about this one tbh. On the one hand this seems an awful lot like compelled speech, OTOH it doesn’t seem like the cable companies have a valid reason to bar broadcasting ESN’s offerings. I’m not really sure what race has to do with it. The CEO happens to be black, sure, but I feel like some details are missing from this story.
  - dvtrn 8y ago
    They're literally in the article, quoted by the grandparent comment you're replying to. The trial will be to determine if these claims have any merit to them, details are in the article, I suspect more will come with the trial itself.
    - 0x8BADF00D 8y ago
      Again, I am not sure what race has to do with this at all. The CEO happens to be black and had a negative interaction with someone on Charter’s board. Oh well. There are many other cable companies and networks out there. That’s why there is something missing from this story. Why would this guy care so much that he was being barred? It’s like the gay wedding cake thing. The plaintiffs specifically found a baker who had strong religious beliefs.
      - dragonwriter 8y ago
        > Again, I am not sure what race has to do with this at all That's literally the entire point of a trial and presentation of evidence. The Charter/Comcast argument was “it doesn't matter if we were actually discriminating on the basis of race, because the First Amendment allows us to do so, so there's no need for a trial to determine if that's what we were doing (which we weren't.)” This decision simply says: “The First Amendment doesn't allow you to discriminate by race in the way alleged, so the question of whether you did or did not actually will need to be resolved in court.”
throwaway199611 8y ago
White man fails to find racism, news at all 11!
NougatRillettes 8y ago
I am neither a lawyer nor a US citizen, but I think the ruling was not on "whether or not discrimination took place", but rather on "if such discrimination had taken place, would the 1st Amendment of the constitution have allowed it as 'editorial freedom'".
- Gibbon1 8y ago
  I didn't read the article, but that's usually how things work. Also a lawyer I know that does patent stuff says law firms will file motions they know have no hope of success because it's free money.
  - dvtrn 8y ago
    Also a lawyer I know that does patent stuff says law firms will file motions they know have no hope of success because it's free money IANAL but I'd imagine bar associations would have a lot of issues with this, wouldn't they?
    - Gibbon1 8y ago
      You have to up and up hard bilk your clients or do something illegal to get the bar pissed at you. Sometimes it's not the lawyers but the clients with deep pockets. My friend spent ten years litigating one case over MOSFET patents for an unhinged client. And they lost 95% of the time against another well funded company.
  - projektfu 8y ago
    More like it's a lot easier to argue at the beginning that the plaintiff has no standing to sue than it is to go through a whole discovery process and trial to hope for a judgement in your favor. Let alone the risks of the discovery process itself.
daveFNbuck 8y ago
The evidence is weak because this is a motion to dismiss. My understanding (IANAL) is that the bar for dismissal would be that there isn't even a valid allegation. It would be very difficult to have strong evidence that a company discriminated against you at this point. Once there's an actual trial, both parties get to gather evidence via discovery and they'll get to review internal documents about why these decisions were made.
- jhall1468 8y ago
  So much this. It's actually kind of mind-boggling how many people think you need a mountain of evidence to make any legal claim when the reverse is largely true (you made a decision, we think it was done in violation of the Constitution and through discovery want to see if that's the case).
mdasen 8y ago
It sounds like the ruling is quite narrow. First, Charter was looking to dismiss the case. The lower court denied the dismissal and the 9th circuit upheld the denial of the dismissal. That doesn't mean ESN wins the case, it means Comcast doesn't have first amendment grounds to dismiss an anti-discrimination case. It should also be noted that Charter didn't ask to dismiss the case due to weak evidence. They argued that their first amendment rights bar any claim of discrimination against their editorial decision. The judges wrote that the case "does not seek to regulate the content of Charter's conduct, but only the manner in which it reaches its editorial decisions—which is to say, free of discriminatory intent". Charter's case for dismissal was weak because they were arguing that their first amendment editorial right meant that no discrimination case could be brought against them. The court rebutted that saying that the case isn't about what they put on their system, but how they decide on it. If they deny all African American owned companies from their system because they don't want African American owned businesses succeeding, that doesn't fall under free speech because it's unrelated to the content - the decision isn't an editorial one, but a discriminatory one. Whether the evidence of discrimination is weak or not isn't part of this ruling. This ruling is just about whether the first amendment's protection of editorial decisions mean that one can't bring a racial discrimination case even if Charter said, "we won't put any African American owned stations on our system". The ruling seems to be hit the nail on the head: you have editorial rights, but those rights about the content; you're not allowed to deny access because of the race of the person who owns the content. This wasn't a ruling on the merits of the evidence.
alphabettsy 8y ago
Is the solution to ignore bias then? Taken separately those incidents may not scream racism, but most incidents don’t. Taken together they give reason to ask the question at least. Being openly racist in public is no longer acceptable in most of America, but these types of subtle racism are very common and it’s easy to dismiss them because they’re not explicit.
- educationdata 8y ago
  Yes. It is better to ignore implicit bias. Every time you talk about it, you are reenforcing it. Because every time you talk about it, you are more likely make more people to have this idea, instead of making less people to have this idea.
  - icebraining 8y ago
    What makes you think that?
- DanBC 8y ago
  Calling a black man "boy" is not subtly racist. It's blatantly racist.
  - dlivingston 8y ago
    FWIW I can easily imagine an angry, old white man calling a 30 year old white man 'boy'. It's typically a condescending way of implying dominance and is not necessarily a racist expression in and of itself. Coupled with his other comments, though, you might start to view these as 'dog whistles'...
    - dvtrn 8y ago
      FWIW I can easily imagine an angry, old white man calling a 30 year old white man 'boy' Have you ever actually seen this? Or, failing that, have you ever read the Alex Haley book "Roots"? or seen the television series based upon? There's an entire scene of protagonist Kunta Kente being whipped savagely as the slave master repeatedly asks "what's your name boy" to dehumanize him and strip him of his birthright and birth-given identity, changing his African name to a white, Anglo-Christian name. I can't think of a better example than that of how that word came to be weaponized against an entire group of people to the point we have come to now. "Boy" to black people (hi there, black person here) has a LOT of history of being blatant, unambiguous and pretty darn direct. Although... I suppose it's easier if one hasn't lived that life though to rest their laurels on what they "imagine" versus what people like me continually have to point out actually happens because we're the ones living through it.
erikpukinskis 8y ago
You don’t need proof to start a trail. You just need weak evidence. How could I, a random person outside Comcast, collect information about Comcast’s internal processes? A trial can be opened on suspicion with evidence, then you use the subpoena power of the court to try to prove it. > This kind of law suit properly will increase implicit racial bias That’s a pretty big quantitative claim. How high is your confidence in it? Are you an example of someone whose bias has gone up from reading about this? Or are you basing this off your expertise in what causes shifts in biased people?
rhcom2 8y ago
Seems like a pretty big stretch to apply that paper to lawsuits.
zrail 8y ago
Leaving everything else aside, > None the things mentioned ("get off of welfare", "handout", "boy", "change his behavior") is necessarily racism. All of those are explicitly racist when addressing people of color.
- educationdata 8y ago
  I think you are the racist to make this kind of comment. Those words can be used on anybody. When you say racism is the only explanation to tell a Black person to "get off of welfare", you are the racist. Only a racist can think this way.
  - zrail 8y ago
    You are wrong. Calling out racism is not being racist. "Reverse racism" is not a thing.
    - creaghpatr 8y ago
      >“Reverse racism” is not a thing. You overplayed your hand here.
    - cabaalis 8y ago
      I think you are almost correct. A victim of racism or an advocate for a victim of racism is not being racist for calling out the racism. However, a person blaming racism without evidence and where it does not exist is indeed engaging in racism themselves, because it exposes their own notions of the group they are attacking. Calling out "racism" is not automatically a sainted argument above reproach. This is a general statement, not directed at the case in the article.
- orthecreedence 8y ago
  > > None the things mentioned ("get off of welfare", "handout", "boy", "change his behavior") is necessarily racism. > All of those are explicitly racist when addressing people of color. Agreed. I read that and cringed pretty hard. For someone to say calling a black man "boy" is not racist is either willfully ignorant to an alarming degree or just plain insincere. I'm all for differing viewpoints, but let's at least call things what they are. If you're going to be racist, at least own up to it.
dragonwriter 8y ago
> The evidence of discrimination is extremely weak. That's immaterial; this ruling isn't weighing evidence and drawing conclusions of fact from it, it's about whether there is a proper justiciable legal complaint with any evidence on the necessary elements. If there is, which this decisions says there is, it is for the trier of fact in the trial court (presumably a jury) to weigh the evidence and draw conclusions of fact. This is a front-door-of-the-court decision, not a final judgement.

ggggtez 8y ago

Comcast/Charter was trying to say 1st amendment allows them to discriminate based on race (in essence, similar to the Cake-shop ruling). The ruling just says that the companies do not have that right. The plaintiff still needs to prove it happened, but that's what the trial is for.

0x8BADF00D 8y ago
Not sure about this one tbh. On the one hand this seems an awful lot like compelled speech, OTOH it doesn’t seem like the cable companies have a valid reason to bar broadcasting ESN’s offerings. I’m not really sure what race has to do with it. The CEO happens to be black, sure, but I feel like some details are missing from this story.
- dvtrn 8y ago
  They're literally in the article, quoted by the grandparent comment you're replying to. The trial will be to determine if these claims have any merit to them, details are in the article, I suspect more will come with the trial itself.
  - 0x8BADF00D 8y ago
    Again, I am not sure what race has to do with this at all. The CEO happens to be black and had a negative interaction with someone on Charter’s board. Oh well. There are many other cable companies and networks out there. That’s why there is something missing from this story. Why would this guy care so much that he was being barred? It’s like the gay wedding cake thing. The plaintiffs specifically found a baker who had strong religious beliefs.
    - dragonwriter 8y ago
      > Again, I am not sure what race has to do with this at all That's literally the entire point of a trial and presentation of evidence. The Charter/Comcast argument was “it doesn't matter if we were actually discriminating on the basis of race, because the First Amendment allows us to do so, so there's no need for a trial to determine if that's what we were doing (which we weren't.)” This decision simply says: “The First Amendment doesn't allow you to discriminate by race in the way alleged, so the question of whether you did or did not actually will need to be resolved in court.”

throwaway199611 8y ago

White man fails to find racism, news at all 11!

NougatRillettes 8y ago

I am neither a lawyer nor a US citizen, but I think the ruling was not on "whether or not discrimination took place", but rather on "if such discrimination had taken place, would the 1st Amendment of the constitution have allowed it as 'editorial freedom'".

Gibbon1 8y ago
I didn't read the article, but that's usually how things work. Also a lawyer I know that does patent stuff says law firms will file motions they know have no hope of success because it's free money.
- dvtrn 8y ago
  Also a lawyer I know that does patent stuff says law firms will file motions they know have no hope of success because it's free money IANAL but I'd imagine bar associations would have a lot of issues with this, wouldn't they?
  - Gibbon1 8y ago
    You have to up and up hard bilk your clients or do something illegal to get the bar pissed at you. Sometimes it's not the lawyers but the clients with deep pockets. My friend spent ten years litigating one case over MOSFET patents for an unhinged client. And they lost 95% of the time against another well funded company.
- projektfu 8y ago
  More like it's a lot easier to argue at the beginning that the plaintiff has no standing to sue than it is to go through a whole discovery process and trial to hope for a judgement in your favor. Let alone the risks of the discovery process itself.

daveFNbuck 8y ago

The evidence is weak because this is a motion to dismiss. My understanding (IANAL) is that the bar for dismissal would be that there isn't even a valid allegation. It would be very difficult to have strong evidence that a company discriminated against you at this point. Once there's an actual trial, both parties get to gather evidence via discovery and they'll get to review internal documents about why these decisions were made.

jhall1468 8y ago
So much this. It's actually kind of mind-boggling how many people think you need a mountain of evidence to make any legal claim when the reverse is largely true (you made a decision, we think it was done in violation of the Constitution and through discovery want to see if that's the case).

mdasen 8y ago

It sounds like the ruling is quite narrow. First, Charter was looking to dismiss the case. The lower court denied the dismissal and the 9th circuit upheld the denial of the dismissal. That doesn't mean ESN wins the case, it means Comcast doesn't have first amendment grounds to dismiss an anti-discrimination case. It should also be noted that Charter didn't ask to dismiss the case due to weak evidence. They argued that their first amendment rights bar any claim of discrimination against their editorial decision. The judges wrote that the case "does not seek to regulate the content of Charter's conduct, but only the manner in which it reaches its editorial decisions—which is to say, free of discriminatory intent". Charter's case for dismissal was weak because they were arguing that their first amendment editorial right meant that no discrimination case could be brought against them. The court rebutted that saying that the case isn't about what they put on their system, but how they decide on it. If they deny all African American owned companies from their system because they don't want African American owned businesses succeeding, that doesn't fall under free speech because it's unrelated to the content - the decision isn't an editorial one, but a discriminatory one. Whether the evidence of discrimination is weak or not isn't part of this ruling. This ruling is just about whether the first amendment's protection of editorial decisions mean that one can't bring a racial discrimination case even if Charter said, "we won't put any African American owned stations on our system". The ruling seems to be hit the nail on the head: you have editorial rights, but those rights about the content; you're not allowed to deny access because of the race of the person who owns the content. This wasn't a ruling on the merits of the evidence.

alphabettsy 8y ago

Is the solution to ignore bias then? Taken separately those incidents may not scream racism, but most incidents don’t. Taken together they give reason to ask the question at least. Being openly racist in public is no longer acceptable in most of America, but these types of subtle racism are very common and it’s easy to dismiss them because they’re not explicit.

educationdata 8y ago
Yes. It is better to ignore implicit bias. Every time you talk about it, you are reenforcing it. Because every time you talk about it, you are more likely make more people to have this idea, instead of making less people to have this idea.
- icebraining 8y ago
  What makes you think that?
DanBC 8y ago
Calling a black man "boy" is not subtly racist. It's blatantly racist.
- dlivingston 8y ago
  FWIW I can easily imagine an angry, old white man calling a 30 year old white man 'boy'. It's typically a condescending way of implying dominance and is not necessarily a racist expression in and of itself. Coupled with his other comments, though, you might start to view these as 'dog whistles'...
  - dvtrn 8y ago
    FWIW I can easily imagine an angry, old white man calling a 30 year old white man 'boy' Have you ever actually seen this? Or, failing that, have you ever read the Alex Haley book "Roots"? or seen the television series based upon? There's an entire scene of protagonist Kunta Kente being whipped savagely as the slave master repeatedly asks "what's your name boy" to dehumanize him and strip him of his birthright and birth-given identity, changing his African name to a white, Anglo-Christian name. I can't think of a better example than that of how that word came to be weaponized against an entire group of people to the point we have come to now. "Boy" to black people (hi there, black person here) has a LOT of history of being blatant, unambiguous and pretty darn direct. Although... I suppose it's easier if one hasn't lived that life though to rest their laurels on what they "imagine" versus what people like me continually have to point out actually happens because we're the ones living through it.

erikpukinskis 8y ago

You don’t need proof to start a trail. You just need weak evidence. How could I, a random person outside Comcast, collect information about Comcast’s internal processes? A trial can be opened on suspicion with evidence, then you use the subpoena power of the court to try to prove it. > This kind of law suit properly will increase implicit racial bias That’s a pretty big quantitative claim. How high is your confidence in it? Are you an example of someone whose bias has gone up from reading about this? Or are you basing this off your expertise in what causes shifts in biased people?

rhcom2 8y ago

Seems like a pretty big stretch to apply that paper to lawsuits.

zrail 8y ago

Leaving everything else aside, > None the things mentioned ("get off of welfare", "handout", "boy", "change his behavior") is necessarily racism. All of those are explicitly racist when addressing people of color.

educationdata 8y ago
I think you are the racist to make this kind of comment. Those words can be used on anybody. When you say racism is the only explanation to tell a Black person to "get off of welfare", you are the racist. Only a racist can think this way.
- zrail 8y ago
  You are wrong. Calling out racism is not being racist. "Reverse racism" is not a thing.
  - creaghpatr 8y ago
    >“Reverse racism” is not a thing. You overplayed your hand here.
  - cabaalis 8y ago
    I think you are almost correct. A victim of racism or an advocate for a victim of racism is not being racist for calling out the racism. However, a person blaming racism without evidence and where it does not exist is indeed engaging in racism themselves, because it exposes their own notions of the group they are attacking. Calling out "racism" is not automatically a sainted argument above reproach. This is a general statement, not directed at the case in the article.
orthecreedence 8y ago
> > None the things mentioned ("get off of welfare", "handout", "boy", "change his behavior") is necessarily racism. > All of those are explicitly racist when addressing people of color. Agreed. I read that and cringed pretty hard. For someone to say calling a black man "boy" is not racist is either willfully ignorant to an alarming degree or just plain insincere. I'm all for differing viewpoints, but let's at least call things what they are. If you're going to be racist, at least own up to it.

dragonwriter 8y ago

> The evidence of discrimination is extremely weak. That's immaterial; this ruling isn't weighing evidence and drawing conclusions of fact from it, it's about whether there is a proper justiciable legal complaint with any evidence on the necessary elements. If there is, which this decisions says there is, it is for the trier of fact in the trial court (presumably a jury) to weigh the evidence and draw conclusions of fact. This is a front-door-of-the-court decision, not a final judgement.