the morning good morning your honor thank you may please the court patrick filled in for target communications and i'd like to reserve three minutes of my time for if you're out i'll try to help you thank you your honor i like to cover three points this morning first the standard for causation under section one thousand and eighty one is but for causation second why the allegations in this complaint don't meet the standard even for a motivating factor causation and third i'd like to be sure to get through the first amendment because the first amendment is a constitutional part of this lawsuit but i'm on your first point let me we could spend a lot of time on this but obviously under miller v gammy we can address if if it's necessary i like it grows that look at nasser i think that's probably right but that but the supreme court made it clear that if the language of the governing statute calls for a different standard we don't even get to that other analysis the standard that i see is whether people who are contracting are treated differently than in quotes white people that may be said to be a motivating factor but we won't call it that it just have to you have to show you know i'm african american i would try to deal with this company they wouldn't deal with me but my competitor over here does exactly what i do as a white person and he or she got the contract i didn't and it's because the race isn't that really what we're dealing with here in terms of causation well your honor the statute is phrased in terms of the same right as white citizens but what the supreme court pointed out in both gross and nasser is also that but for causation is the default rule again unless unless the statute has other language an indication to the contrary but it's the default rule in the way the core base that decision was on the time honored back through the one nine hundred century time hon so that background presumption that it is but for causation is exactly what the supreme court was describing and grows and that would apply to this statute as well so then some lesage language gives it as a dividend to the contrary and i think your honor that just saying that the standard is were you treated differently from a white person that indicates that if the black applicant for a contract did not get the contract but there is a reason the same reason that would have barred a white applicant determinative so i think that is even under that language of the statute bearing in mind that there's a default rule of the supreme court has said the basic principles of common law toward apply do you lose if we don't apply a b concept no your honor and let me turn to that because even if it were a motivating factor standard food the allegations in this complaint wouldn't meet that standard and there are really two buckets of allegations there are allegations asserting that the reasons false of the straw and if they were treated differently from white owned companies that were carried and then a separate bucket up allegations about two supposed incidents of racist comments let me deal with them separately on the first one and this goes to the point that you were getting at injured schroder you were asking about in terms of what the judge had or want in the comcast case because where he was applying there is a clear principle that you can't just come in and say someone else got the contract and i didn't and they were white in order to raise a plausible inference that race was a part of that decision you also have to allege facts showing that you were similarly situated so for example with the limited bandwidth point they say well you must not have  limited bandwidth because you expended bandwidth for white on networks that well but what that would judge hatter was recognizing is there are costs associated bandwidth costs any time you launch a network and you have to show to show that you were treated differently that you were an equally viable and equally useful expenditure of those limited resources and that means specifically what you have to show or some factual allegations showing me that you're comparable in terms of demand for your networks to these white paragraph thirty seven singers saying well we're not launching and during that same period they were in fact launching white own channels these are just allegations now at the top the six states and also a band with an operational demand to this is paragraphs thirty seven through forty eight band with an operation demands have increase and then they added certain channels like longhorn network focusing on rural and western lifestyle issues in major urban cities like los angeles and that land as we've got allegations kind of along the same lines as the the complaint in comcast and let me make two points on that you are the first is our direct accord to excerpts of record page two sixty one it's the email because in this case we actually have the e mail communications in the record and what mr singer said in that e mail is we're not launching general entertainment it's not in our business plan and he said other than sports channels that we have to carry rights so it's even basic launches for general entertainment other than sports that is the rationale was given that matches up exactly with what charter actually did there are no allegations that are contrary to that they point to five networks they say that allegedly were watched three of them are sports networks the longhorn network which is for three university of texas and it's a disney channel that's part of the package you have to take if you want disney and to our sports channels here in los angeles it's the english in the spanish versions of local sports channels for the lakers the dodgers the galaxy things like that so that fits with the rationale in that email from mr singer the only other two networks that they point to for not general entertainment launches they channel lineups and those are only basic those are carried on a premium tier that's a significant economic difference where you're doing it on part of the basic here or premium tira changes that you cannot make return for what you're getting and launching that so they don't have any allegation even at the pleading stage you have to allege something something factual to suggest that you are similarly situated you are comparable to someone else who got the contract or got the job in a title seven case for example if the name you have to a blanket rule you have to name them but you have to allege you know this company has some other an applicant got the job and was comparable to me in that they had this parameter that was relevant and i had a better printer you have to have something that is actually comparing you to the person to got the contract and i change our focus for just a moment here you got rather doltish comments by messrs singer and treatment by rutledge there is a language in some of our cases about things that are not insulting terrible comment but that are not part of the negotiating process what is what accepting them for purposes of this procedural posturing or that is correct under ninth circuit precedent even comments that are racially based and they are made by a decision maker if they are unrelated to the decision process they are treated as free remarks and critically the district court in this case recognize that and said this is an excerpt of record page of levon that taken along these comments even these allegations would not be sufficient even under a motivating factor standard even a lower standard to make it plausible inference of discrimination in this case and that's correct under cases such as nesbitt vs pepsi co and merrick vs farmers insurance because these comments were months after the decision had been made eight months and ten months they were totally unrelated to the decision but now you let me just ask you this if when we listen to the insurance guy in the other case he indicated and i realize they're different but we're the same statute his comment in part was like you know you've got this whole attempt of activities all these things that are occurring here and you just have to look at the whole thing take that into context to see whether or not there is racial discrimination and even if you treat these the one comment in the one action as not being part of the negotiation if it reflects or arguably reflects the attitude of some senior executives of the company one bucket of allegations that supposedly direct evidence of racial bias these racist comments in just a court recognized that you know what they're unrelated to the decisions on their own they don't get you over the threshold to plausible plausibly inferring racial b mr rutledge is action unless basically you're sitting in a room negotiating the contract it doesn't make any difference is that your perspective we want it doesn't have to be that now but it has did meet with the program deletes according the allegation that he met with the allegations the c e o viacom and again we come to the critical legal principle you've got to show that you are similarly situated right and viacom has one of the biggest libraries of media in the industry a meeting with the c e o of viacom is not comparable to meeting with the c e o of its own it sounds to me and i can't disagree with you that the crux of this the other case is how closely you have to show that you're similarly do it is to say there were white people who were treated differently than judge had or was absolutely correct that the legal rule is you've got to allege how you're similarly situated and that's what it is that white black it's your white and black but you with that you are posting that decision this or this court made clear in century aluminum and an eclectic properties that this standard where you have two different explanations that are mutually exclusive it's the plaintiff's burden and i carry with you counsel that it isn't enough to say you know this isn't a white person versus a black person this is a company versus a company right or fair u s companies that were offered contracts versus a company that wasn't offered it so you have to show that you've got you're kind of in the same position and have the same market power for example there are some allegations now i'm going to maybe mix up the two complaints a bit but there are allegations along the lines of you know you you said that you weren't interested if you wanted me to pay sickly gathered this sort of evidence but then you told me that that evidence isn't good enough during that sat the same time period you dealt with some white companies that are lesser known some of which then you know went out of business they have smaller market shares so allegations along those lines would demonstrate that you're either similarly situated or in fact better situated as a partner then some of these other companies right w evidence setting aside whether those allegations are in fact present in the complaint that that is at issue in this case allegations along those lines would demonstrate similarly situated  judge had to reply correctly that's why he was demanding and he gave them in the comcast case the chance he said you've got to say something that shows me how it is that your demand is comparable to that and that's the only way that you're going to show me you were treated unfairly and if that seventy three fifty two that that deck nassar explicitly says that status discrimination claims like race discrimination claims are treated differently than retaliation claims and nasser says if title seven were written in broad they're not determinative here because we have a statute was specific language that we can interpret the doesn't use the word because doesn't necessarily flow from that language is the but for or motivational that's exactly right your honor it's favors defendants or it's in points to paragraphs in the complaint twenty one twenty two thirty to forty one forty five fifty five and eighty seven that would suggest that charter communication was treating white on stations differently black on the district court then says complaint stated with respect to nine hundred eighty one is that correct exactly you're not a ok so from your perspective you like judge was ruling right i encourage you to very carefully read as i know you will judge was thorough opinion i read ruth very race the plaintiff there would have been this country would have been together as terrible dilemma though that judge would graduate or the university of chicago law school judge had or graduated from university of chicago law school and so did i i don't know what to do considers this is a question of whether or not the media company has the right on the base the first amendment discriminate on the basis of race it's interesting that here the defendants want to invoke the supreme court's decision early but it really was very careful to distinguish turner broadcasting and the cable situation early was also very careful in saying that there are those who are running the parade were making a choice on the basis of content alternately you really come back to the same issue here was the discrimination on the basis of race or was it a business choice made by the defendants if it's the former then it violates section one hundred one in the first amendment can be no defense on the other hand if it is on the basis of legitimate business  statute it's a neutral statute there's no compelled speech so basically we be analyzing it under intermediate scrutiny a fair statement well i think that's right your honor but converses cause communication specifically s defense you don't even need to get to the issue of levels of scrutiny if you wanted to put this in the framework of levels of scrutiny stopping the race discrimination to not only be regarded as an important interest under immediate scrutiny but a compelling interest column and has to deal with those people on a contractual basis if it said i we're only going to deal with white collar us because this is we have freedom of the press and we're going to we're going to run the columns of white people what is that is that violate one nine hundred eighty one i think it would in the here you can go back to the pittsburgh press case where what was involved there was newspapers that wanted to run sex based  not only women only in the supreme court said that that's not permissible the first amendment doesn't provide a blanket excuse to discriminate if the newspaper said we like conservative and not liberal columnists it's about the content of the columns that's provides a blanket defense to media companies to discriminate in any way that they want what's your best case to that point it says that the first amendment cannot provide a company to choose to air their views of the box clan wishes yes of course any media company can choose the views that it wants to but that's not what this case is about this case is about can a media company say underlying factual issue the claim the plaintiff making is that this is about race discrimination by listening to anyone the defendants going to argue that this is about the choice in terms of the content of the program and that should be decided in summary judgment a trial  certainly say that by any objective measure the content of their program is adequate here to be covered these are channels that have one of the nominated for emmys all of the other major cable companies carry of the five hundred channels everything but these particular channels that i think is enough to get passed the motion to dismiss in then it could be decided is this about content or is this about race discrimination and if it's not of the questions i'll say thank you so thank you very much thank you so for the good graces of the insurance here we're going to give you his three minutes to make your first amendment argument because i know he wants to hear it as well  honor and i'd like to start by saying that ken charter categorically denies that race played any role in this decision here race based decision making is a poor and has nothing to do with the way charter does its business but the abstract legal question here we're required to take the allegations is true and the question is what does the first amendment say about cable companies that allegedly use race in deciding what they don't let me ask you before you get that the dean made an important point i'd like your response to he makes the point that media companies are not exempt from for example labor laws or and i trust you agree with that i do your honor and this case is very different in this case because this case is about the pure marketplace for speech it is only in very narrowly about the decisions made in buying and selling prepackaged speech it goes to judge schroeder's example of the newspaper that's deciding which op ed columnists it's going to run columns with that is a pure decision about speech well let's call it let's  say that that's all the what comes to be but you're at the pleading stage right now and if the pleading on the other side says you're refusing to treat with me because i'm african american how can that how can that be if you will defended by the first amendment just on its face i'm not talking about if you get on your knees and you find out that there really are market issues and so on that may be a different issue but on its face there are two reasons you are in the concept of and content based in the first amendment context is broad enough that it covers the identity of the speaker and the characteristics of the speaker and let me make two points on this the first is on the face of the complaint if you look at paragraph sixty four the plaintiffs say that the point of this lawsuit the point of all of these lawsuits against other people in this industry is to advance the quote voices of african american owned media companies in paragraph thirty six of the complaint in the comcast case they refer to the diverse viewpoints of african american owned media companies and their theory on the face of the complaint is that ownership those determine a distinct content and viewpoint they're inseparable that is what is on the face of the complaint in addition even putting that aside so this is a content based attempt to use section one thousand nine hundred one to dictate what speech someone else will decide to use even putting that to one side it say that you had a journal that wanted to advance african american authors and they said we don't care about what you write about we don't care for it's home short stories literary criticism scientific articles we want to promote african american offers we're going to decide what speech we want to promote based on the identity  speaker that's permissible the government could not come in past the statute saying you're not allowed to do that that that statute wouldn't be treated as content neutral that is dictating to a speaker what content and the criteria about content that speaker wants to further promote and seminary so this this attempt to try to distinguish oh well if it's racial discrimination is one issue if it's content it's different let me that i mean our government you're over time we've given you but let me ask my colleague to do either of you have any questions about the first amendment issue or give you one more minute and then we're we're done ok thank you don i appreciate that i think it's critical to understand in the first minute context hurley sets the principles that apply here because that was also a case about selecting units of speech and went to court said there is it doesn't matter what the parade organizers rationale is they didn't have to have a particularly content based articulable rationale the exact words from her use whatever the reason they decided not to want to promote someone else's speech that lies beyond the power of the government to control that's the principle that governs this case and i think that's shown by the hypothetical of the journal that wants to promote african american authors or you could go the other direction and say the k journal they get to decide what authors they want to promote based on the identity it could be or thank you counsel thanks to all counsel and frankly both cases are very helpful these are important cases we recognize that and we will make a decision