FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

N ATIONAL A SSOCIATION O F A FRICAN A MERICAN

- O WNED M EDIA , a California Limited Liability Company; E NTERTAINMENT S TUDIOS N ETWORKS , I NC

. , a California corporation, Plaintiffs

- Appellees

,

v.

C HARTER C OMMUNICATIONS , I NC

. , a Delaware corporation, Defendant

- Appellant. No. 17

- 55723

D.C. No. 2:16

- cv

- 00609

- GW

- FFM

OPINION

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted October 9, 2018 Pasadena, California

Filed November 19, 2018

Before: MARY M. SCHROEDER, MILAN D. SMITH,

JR., and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.2 NAAAOM V

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SUMMARY *

Civil Rights

The panel affirmed the district court’s denial of a cable television

- distribution company’s motion to dismiss a claim that its refusal to enter into a carriage contract with an African American

- owned operator of television networks was racially motivated, and in violation of 42 U.S.C. § 1981.

Reconsidering the court’ s approach to the causation standard for § 1981 claims under Metoyer v. Chassman , 504 F.3d 919 (9th Cir. 2007), following the Supreme Court’s decisions in Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167 (2009), and Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U .S. 338 (2013), the panel held that a plaintiff need not plead that racism was the but

- for cause of a defendant’s conduct, but only that racism was a factor in the decision not to contract such that the plaintiff was denied the same right as a white citize n . The panel concluded that Gross and Nassar undercut Metoyer ’s approach of borrowing the causation standard of Title VII’s discrimination provision. The panel instead looked to the text of § 1981, and it held that mixed

motive claims are c ognizable under § 1981.

The panel held that the plaintiffs’ allegations regarding the defendant’s treatment of the African American

- owned operator, and its differing treatment of white

- owned companies, were sufficient to state a viable claim pursuant to § 1981.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.NAAAOM V

. C HARTER C OMMUNICATIONS 3

The panel also held that plaintiffs’ § 1981 claim was not barred by the First Amendment. The panel concluded that the fact that cable operators engage in expressive conduct when they select which networks to carry did not automatically require the application of strict scrutiny. The panel concluded that at most intermediate scrutiny applied, and § 1981 would satisfy intermediate scrutiny because it
was a content

- neutral statute and was narrowly tailored to serve a significant government interest i n preventing racial discrimination.

COUNSEL

Patrick Francis Philbin (argued), Galen B. Bascom, Devin S. Ander son, and Jeffrey S. Powell, Kirkland & Ellis LLP, Washington, D.C. ; Mark C. Holscher, Kirkland & Ellis LLP, Los Angeles, California; for Defendant

- Appellant.

Erwin Chemerinsky (argued), Boalt Hall, University of California

, Berkeley, California ; David W. Schecter, J. Mira Hashmall, Brian A. Procel, and Louis R. Miller, Miller Barondess LLP, Los Angeles, California; for Plaintiffs

Appellees.

John Bergmayer, Public Knowledge, Washington, D.C., for Amicus Curiae Public Knowledge.4 NAAAOM V

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OPINION

M. SMITH, Circuit Judge:

Plaintiff

- Appellee Entertainment Studios Networks, Inc. (Entertainment Studios), an African American

- owned operator of television networks, sought to secure a carriage contract from Defendant

- Appellant Charter Communications, Inc. (Charter). These efforts were unsuccessful, and Entertainment Studios, along with Plaintiff

- Appellee National Association of African American

- Owned Media (NAAAOM, and together with Entertainment Studios, Plaintiffs), claimed that Char ter’s refusal to enter into a carriage contract was racially motivated, and in violation of 42 U.S.C. § 1981. The district court, concluding that Plaintiffs’ complaint sufficiently pleaded a § 1981 claim and that the First Amendment did not bar such an ac tion, denied Charter’s motion to dismiss. The court then certified that order for interlocutory appeal. We have jurisdiction pursuant to 28 U.S.C. § 1292(b), and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Entertainment Studios is a full

- service television and motion picture company owned by Byron Allen, an African

American actor, comedian, and entrepreneur. It serves as both a producer of television series and an operator of television networks, and currently operates seven channe ls and distributes thousands of hours of programming.

Entertainment Studios relies on cable operators like Charter for “carriage contracts”; these operators, which range from local cable companies to nationwide enterprises, carry and distribute channels an d programming to theirNAAAOM V

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television subscribers. Although Entertainment Studios managed to secure carriage contracts with more than 50 operators

— including prominent distributors like Verizon, AT&T, and DirecTV

— it was unable to reach a similar agreement with Charter, the third

- largest cable television

- distribution company in the United States, despite efforts that began in 2011.

From 2011 to 2016, Charter’s senior vice president of programming, Allan Singer, declined to meet with Entertainment Studios represe ntatives or consider its channels for carriage. Plaintiffs alleged that, instead of engaging in a meaningful discussion regarding a potential carriage contract, Singer and Charter repeatedly refused, rescheduled, and postponed meetings, encouraging Entert ainment Studios to exercise patience and proffering disingenuous explanations for its refusal to contract. Although Singer stated that Charter was not launching any new channels and that bandwidth and operational demands precluded carriage opportunities, Plaintiffs claimed that Charter nonetheless negotiated with other, white

- owned networks during the same period, and also secured carriage agreements with The Walt Disney Company and Time Warner Cable Sports. Charter allegedly communicated that it did not have faith in Entertainment Studios’ “tracking model,” despite contracting with other white

- owned media companies that used the same tracking model. Plaintiffs also asserted that Singer blocked a meeting between Entertainment Studios and Charter CEO Tom R utledge because the latter “does not meet with programmers,” despite the fact that Rutledge regularly met with the CEOs of white

- owned programmers, such as Viacom’s Philippe Dauman. Singer was allegedly steadfast in his opposition to Entertainment Studios , saying, “Even if you get support6 NAAAOM V

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from management in the field, I will not approve the launch of your network.”

Plaintiffs claimed that they finally managed to secure a meeting with Singer in July 2015. However, during the meeting at Charter’s headquarte rs in Stamford, Connecticut, Singer once again made clear that Entertainment Studios would not receive a carriage contract, citing a series of allegedly insincere explanations for this decision. For example, Singer informed Entertainment Studios that he

w anted to wait and “see what AT&T does,” despite the fact that AT&T already carried one of Entertainment Studios’ networks. Charter also mentioned its purported lack of bandwidth, even though at that time, it expanded the distribution of two lesser

- known, white

- owned channels into major media markets: RFD

- TV, a network focused on rural and Western lifestyles, and CHILLER, a horror channel.

In addition to recounting Entertainment Studios’ failed negotiations with Charter, Plaintiffs’ amended complaint also i ncluded direct evidence of racial bias. In one instance, 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 tha t, 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, 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 car ry African American

- owned channels and, prior to its merger with Time Warner Cable, had a board ofNAAAOM V

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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).

II. Procedural Background

Plaintiffs initiated this action on January 27, 2016, asserting both a claim against Charter under § 1981 and a claim against the FCC under the due process clause of the Fifth Amendment. 1 After learning of the derogatory racial comments allegedly made by Singer and Rutledge, Plaintiffs sought leave to file a first amended complaint (FAC), which the district court granted. The FAC alleged one claim against Charter fo r racial discrimination in contracting in violation of § 1981.

Charter moved to dismiss the FAC, arguing that it failed to plead that racial animus was the but

- for cause of Charter’s conduct and that the First Amendment barred a § 1981 claim based on a cab le operator’s editorial discretion. The district court denied the motion. It determined that, under Metoyer v. Chassman , 504 F.3d 919 (9th Cir. 2007), Plaintiffs needed only to plead that racism was a motivating factor in Charter’s decision, not the but

- for cause

— a requirement, the court concluded, that Plaintiffs satisfied. Addressing Charter’s contention that Metoyer was no longer good law following two subsequent Supreme Court decisions, the district court concluded that “if Metoyer is no longer good law on this point, [then] the Ninth Circuit [] should announce that conclusion.” As for Charter’s First Amendment challenge, the district court allowed that the cable operator’s “ultimate

1 Plaintiffs voluntarily dismissed their claim against the FCC before filing their first amended complaint.8 NAAAOM V

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carriage/programming activity is entitled to some measure of First Amendment protection,” but declined to apply strict scrutiny and bar the § 1981 claim.

Subsequently, Charter moved for certification of the district court’s order under 28 U.S.C. § 1292(b), which the district court granted. This appeal followed.

STANDARD OF REVIEW AND JURISDICTION

“We review de novo a district court order denying a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).” Fortyune v. City of Lomita , 766 F.3d 1098, 1101 (9th Cir. 2014). We have jurisdiction pursuant to 28 U .S.C. § 1292(b). 2

ANALYSIS

“Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship.” Domino’s Pizza, Inc. v. McDonald , 546 U.S. 470, 476 (2006). The statute provides that “[a]ll persons .

. . shall have th e same right in every State and Territory to make and enforce
contracts .

. . as is enjoyed by white citizens .

. . .” 42 U.S.C.

2 “ A non

- fina l order may be certified for interlocutory appeal where it ‘ involves a controlling question of law as to which there is substantial ground for difference of opinion’ and where ‘ an immediate appeal from the order may materially advance the ultimate terminat ion of the litigation.’” Reese v. BP Expl. (Alaska) Inc. , 643 F.3d 681, 687

– 88 (9th Cir. 2011) (quoting 28 U.S.C. § 1292(b) ). “ Although we defer to the ruling of the motions panel granting an o rder for interlocutory appeal,

‘ we have an independent duty t o confirm t hat our jurisdiction is proper.’” Id. at 688 (quoting Kuehner v. Dickinson & Co. , 84 F.3d 316, 318

– 19 (9th Cir. 1996)). Here, we are satisfied that the district court and the motions panel of this court correctly concluded that certification u nder § 1292(b) was appropriate.NAAAOM V

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§ 1981(a). It further defines “make and enforce contracts” as including “the making, performance, modification, and terminati on of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). The Supreme Court has emphasized that § 1981 reaches both public and “purely private acts of racial discrimination.” R unyon v. McCrary

, 427 U.S. 160, 170 (1976); see also 42 U.S.C. § 1981(c) (“The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”). However, it “reaches only purpos eful discrimination.” Gen. Bldg. Contractors Ass’n v. Pennsylvania , 458 U.S. 375, 389 (1982) (emphasis added). 3

Charter advances three primary arguments on appeal: the district court applied the wrong causation standard to Plaintiffs’ § 1981 claim; Plaint iffs’ FAC failed to plead a plausible claim; and the First Amendment bars a § 1981 claim premised on a cable operator’s editorial decisions. We will consider each of these arguments in turn.

I. Causation Standard

Charter argues that the Supreme Court’s de cisions in two discrimination cases require us to apply a but

- for causation standard to § 1981 claims. Although we agree that these

3 Although the Supreme Court has not squarely decided whether a corporation may bring suit under § 1981, see Domino’s Pizza , 546 U.S. at 473 n.1, we have held that a corporation may do so when it “ has acquired an imputed racial identity .” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc. , 368 F.3d 1053, 1058

– 59 (9th Cir. 2004). Thus, as a “100% African American

- owned” company that is a “bona fide Minority Business Enterprise,” Entertainment Studios can bring a § 198 1 claim, even though it is a corporation and not an individual.10 NAAAOM V

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precedents necessitate reconsideration of our § 1981 approach, we disagree that the but

- for causation standard should be ap plied.

A. Metoyer and the Motivating Factor Standard

In the past, we have held that “the same legal principles as those applicable in a Title VII disparate treatment case”
govern a § 1981 claim. Metoyer , 504 F.3d at 930 (quoting Fonseca v. Sysco Food Servs. of Ariz., Inc. , 374 F.3d 840, 850 (9th Cir. 2004)). “In a Title VII discrimination case, even an employer who can successfully prove a mixed

motive defense, i.e., he would have made the same decision regarding a particular person without taking rac e or gender into account, does not escape liability.” Id. at 931; see also 42 U.S.C. § 2000e

- 2(m) (providing that a plaintiff can prevail in a Title VII disparate treatment case by showing “that race, color, religion, sex, or national origin was a motivat ing factor for any employment practice, even though other factors also motivated the practice”). Accordingly, we previously ruled that a § 1981 defendant may be held liable even if it had a legitimate reason for its refusal to contract, so long as racial discrimination was a motivating factor in that decision.

B. Gross and Nassar

Charter correctly notes that two Supreme Court decisions cast doubt on the propriety of our application of the Title VII standard to § 1981 claims. In these two cases, the Suprem e Court departed from application of the Title VII motivating factor standard, and instead endorsed a but

- for causation requirement as applied to two federal statutes: the Age Discrimination in Employment Act (ADEA), Gross v. FBL Fin. Servs., Inc. , 557 U.S . 167, 177

– 78 (2009), and retaliation claims brought under Title VII, Univ. of Tex. Sw.NAAAOM V

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Med. Ctr. v. Nassar , 570 U.S. 338, 362

– 63 (2013). In Gross

, the Court admonished that “[w]hen conducting statutory interpretation, we ‘must be careful not to apply rul es applicable under one statute to a different statute without careful and critical examination.’” Gross , 557 U.S. at 174 (quoting Fed. Express Corp. v. Holowecki , 552 U.S. 389, 393 (2008)). That examination did not center on the shared objectives of the statute at issue there and Title VII’s antidiscrimination provision

— the approach that this court employed in Metoyer and its antecedents with regard to § 1981

— but instead focused on the statute’s text and history :

Unlike Title VII, the ADEA’s text does no t provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it a mended Title VII .

. . . Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed

- motives age discrimination claim.

Id. at 174

– 75. In Nassar , the Court expanded upon this textual analysis, explaining that

[i]n the usual course, [the causation] standard requires the plaintiff to show “tha t the harm would not have occurred” in the absence of

— that is, but for

— the defendant’s conduct

. . . . This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to12 NAAAOM V

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have incorporate d, absent an indication to the contrary in the statute itself.

570 U.S. at 346

– 47.

In both cases, after analyzing the relevant statutory texts, the Court endorsed the use of a default, but

- for causation standard in the application of the statutes being con strued

— a standard from which courts may depart only when the text of a statute permits. See Gross , 557 U.S. at 175 n.2 (“[T]he textual differences between Title VII and the ADEA [] prevent us from applying [the motivating factor standard] to federal age d iscrimination claims.”); Nassar , 570 U.S. at 352 (“Given the lack of any meaningful textual difference between the text in this statute and the one in Gross , the proper conclusion here, as in Gross , is that Title VII retaliation claims require proof that t he desire to retaliate was the but

- for cause of the challenged employment action.”). 4

We conclude that Metoyer does not emerge from Gross and Nassar unscathed. We premised our opinion in Metoyer

4 Plaintiffs argue that Gross and Nassar have no bearing here because of the textual differences between the ADEA, the Title VII retaliation provision, and § 1981. We disagree. Although it i s true that the use of the word “because”

— which does not appear in § 1981

— drove the Court’s results in those cases, see Gross , 557 U.S. at 176

– 78; Nassar

, 570 U.S. at 352, the decisions do not hold that the preceding inquiry only occurs in cases where a st atute features the word “because” or other similar language. Indeed, in Nassar , the Court cautioned against reading Gross in too narrow a manner. Nassar , 570 U.S. at 351 (“ In Gross , the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force .”).NAAAOM V

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on a determination that “an ‘[a]nalysis of an employment dis crimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case.’” Metoyer , 504 F.3d at 934 (alteration in original) (quoting Fonseca , 374 F.3d at 850). That opinion followed a line of cases in which this court applied Title VII’s causation standard to § 1981 cases because both statutes sought to combat intentional discrimination. 5 This approach is incompatible with Gross , which suggests that, rather than borrowing the causation standard from T itle VII’s disparate treatment provision and applying it to § 1981 because both are antidiscrimination statutes, we must instead focus on the text of § 1981 to see if it permits a mixed

- motive claim. See Gross , 557 U.S. at 174

– 75. 6

5 See, e.g.

, Fonseca , 374 F.3d at 850 (“ Analysis o f an employme nt discrimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case. Both require proof of discriminatory treatment and the same set of facts can give rise to both claims. ” (citat ion omitted) ); Manatt v. Bank of Am., NA , 339 F.3d 792, 797

– 98 (9th Cir. 2003) (“ We also recognize that those legal principles guiding a court in a Title VII disput e apply with equal force in

a § 1981 action. ”); EEOC v. Inland Marine Indus. , 729 F.2d 1229, 1233 n.7 (9th Cir. 1984) (“ A plaintiff must meet th e same standards in proving

a § 1981 claim that he must meet in establishing a disparate treatment claim under Title VII; that is, he must show discriminatory intent .” (citing Gen. Bldg. Contractors Ass’n , 458 U.S. at 391) ).

6 As another circuit court has concluded, “ No matter the shared g oals and methods of two laws, [ Gross ] explains that we should not apply the substantive causation standards of one anti

- discrimination statute to other anti

- discriminatio n statutes when Congress uses distinct language to describe the two standards .” Lewis v. Humboldt Acquisition Corp.

, 681 F.3d 312, 318

– 19 (6th Cir. 2012) (en banc).14 NAAAOM V

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C. Departing from Metoyer

Although not addressed by the parties, a departure from Metoyer is permissible here under our opinion in Miller v. Gammie , which held that a higher court ruling is controlling when it has “undercut the theory or reasoning underlying the prior circu it precedent in such a way that the cases are clearly irreconcilable.” 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Gross and Nassar are fairly clear that our approach in Metoyer

— borrowing the causation standard of Title VII’s discrimination provision an d applying it to § 1981 due to the statutes’ shared objectives, without considering § 1981’s
text

— is not permitted. See Nassar , 570 U.S. at 350

– 51; Gross , 557 U.S. at 175

– 75 (“Our inquiry therefore must focus on the text of the ADEA to decide whether it a uthorizes a mixed

- motives age discrimination claim.” (emphasis added)).

Furthermore, in Gross , the Supreme Court determined that borrowing the Title VII causation standard was inappropriate in ADEA cases because 1) unlike Title VII’s disparate treatment pr ovision, the text of the ADEA did not explicitly provide that “a plaintiff may establish discrimination by showing that [the protected characteristic] was simply a motivating factor,” and 2) the ADEA was not amended to include a motivating factor standard even though it was amended contemporaneously with Title VII. 557 U.S. at 174

– 75. Because § 1981 shares these two characteristics with the ADEA, 7 and because the Court determined that Title VII’s standard could not be adopted in the ADEA

7 Like Title VII and the ADEA, § 1981 was amended as part of the Civil Rights Act of 1991. See Pub. L. No. 102

- 166, 105 Stat. 1071, 1071

– 72 (1991).NAAAOM V

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context, Gross al one undermines Metoyer to the point of irreconcilability.

D. Section 1981’s Text

Accordingly, rather than adopting Title VII’s motivating factor standard in this case, we must instead look to the text of § 1981 to determine whether it permits a departure f rom the but

- for causation standard.

Section 1981 guarantees “the same right” to contract “as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This is distinctive language, quite different from the language of the ADEA and Title VII’s retaliation provi sion, both of which use the word “because” and therefore explicitly suggest but

for causation. Charter contends that the most natural understanding of the “same right” language is also but

- for causation. We disagree and are persuaded by the reasoning of the Third Circuit in Brown v. J. Kaz, Inc. , 581 F.3d 175 (3d Cir. 2009). There, albeit in dicta and without formally resolving the issue, the court reasoned that “[i]f race plays any role in a challenged decision by a defendant, the plain terms of the sta tutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed ‘the same right’ as other similarly situated persons.” Id. at 182 n.5; see also St. Ange v. ASML, Inc. , No. 3:10

- cv

- 0007 9

- WWE, 2015 WL 7069649, at *2 (D. Conn. Nov. 13, 2015) (“Where race discrimination is a motivating factor in an adverse employment decision, the subject of the discrimination has not enjoyed the same right to the full and equal benefit of the law.”).

If di scriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen.16 NAAAOM V

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This, we conclude , is the most natural reading of § 1981. Therefore, unlike the ADEA or Title VII’s retaliation provision, § 1981’s text permits an exception to the default but

- for causation standard by virtue of “an indication to the contrary in the statute itself.” Nas sar , 570 U.S. at 347.

Accordingly, mixed

- motive claims are cognizable under § 1981. Even if racial animus was not the but

- for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a fa ctor in that decision such that she was denied the same right as a white citizen.

II. Plausibility of Plaintiffs’ § 1981 Claim

Having determined that a plaintiff in a § 1981 action need only prove that discriminatory intent was a factor in

— and not necessar ily the but

- for cause of

— a defendant’s refusal to contract, we must now determine whether Plaintiffs pleaded a plausible claim for relief in their FAC. We conclude that they did. Plaintiffs’ allegations regarding Charter’s treatment of Entertainment Stud ios, and its differing treatment of white

- owned companies, are sufficient to state a viable claim pursuant to § 1981.

A. Allegations of Disparate Treatment

Plaintiffs’ FAC alleged various instances of contradictory, disingenuous, and disrespectful behavio r on the part of Charter and its executives. These allegations include: a pattern of declining and delaying meetings with Entertainment Studios, combined with a refusal to contract despite presenting intimations to the contrary; the offering of “provably false” explanations for its reluctance to carry Entertainment Studios’ channels; and Singer’s repeated misleading and insulting communications withNAAAOM V

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Entertainment Studios. We acknowledge that, even when considered in the light most favorable to Plaintiffs, these claims alone would not constitute a plausible § 1981 claim. Corporate red tape, inconsistent decision

- making among network leadership, and even boorish executives are not themselves necessarily indicative of discrimination

. However, Plaintiffs supp lemented these claims by pleading that white

- owned companies were not treated similarly. For example, the FAC stated that, although Charter informed Entertainment Studios that bandwidth and operational demands prevented carriage of the latter’s channels, Charter secured contracts with “white

- owned, lesser

- known” networks during the same period. 8 Charter

8 Charter argues that we cannot infer disparate treatment from these allegations because “[t]he complaint fails to allege any facts whatsoever showing that [Entertainment Studios’] channels are ‘si milarly situated’ to the channels Charter added (or expanded) in respects such as content, quality, popularity, viewer demand, or any objective metric relevant to a carriage decision.” It is true that, in order for us to infer discriminatory intent from t hese allegations of disparate treatment, we would need to conclude that the white

- owned channels were similarly situated to Entertainment Studios’. See, e.g.

, Lindsey v. SLT L.A., LLC , 447 F.3d 1138, 1147 (9th Cir. 2006). It is also true that television networks can vary widely in terms of content, quality, and appeal. See Herring Broad., Inc. v. FCC , 515 F. App’x 655, 656

– 57 (9th Cir. 2013) (exploring various ways in which television networks can differ). However, such a thorough comparison of channels would require a factual inquiry that is inappropriate in reviewing a 12(b)(6) motion. See Earl v. Nielsen Media Research, Inc. , 658 F.3d 1108, 1114

– 15 (9th Cir. 2011) (describing the fact

- intensive, context

- dependent analysis needed to determine whether individuals are similarly situated in the related context of employment discrimination). At this stage of the litigation, we must accept as true Plaintiffs’ assertions that other, lesser

- known, white

- owned networks were selected for carriage at the same t ime that Charter refused to carry Entertainment Studios’ offerings.18 NAAAOM V

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also allegedly pointed to Entertainment Studios’ tracking model as a ground for refusing to contract, while simultaneously accepting white

- owned channels that used the same model. Plaintiffs further alleged that Charter’s CEO, Rutledge, refused to meet with Entertainment Studios’ African

- American owner, Allen, despite meeting with the heads of white

- owned programmers during the same time period. We conclu de that these allegations, when accepted as true and viewed in the light most favorable to Plaintiffs, are sufficient under § 1981 to plausibly claim that Charter denied Entertainment Studios the same right to contract as white

- owned companies. 9

B. Charter’s Race

- Neutral Explanations

Charter contends that we cannot ignore the legitimate,

race

- neutral explanations for its conduct that are, admittedly, present on the face of the FAC. These business justifications include limited bandwidth, timing conc erns, and other operational considerations. However, at this stage, we are not permitted to weigh evidence and determine whether the explanations proffered by Plaintiffs or Charter are ultimately more persuasive. Instead, we have explained that “[i]f the re are two alternative explanations, one advanced by defendant

9 Furthermore, Plaintiffs’ FAC also included direct allegations of racial animus: specifically, the racially charged comments allegedly made by Singer and Rutledge, both of whom were high

- ranking Charter decision

- makers. Notably, neither of these incidents occurred in the context of Entertainment Studios’ attempts to secure a carriage contract with Charter, and they can therefore serve only as circumstantial evidence of discriminatory anim us. See, e.g.

, Godwin v. Hunt Wesson, Inc. , 150 F.3d 1217, 1221 (9th Cir. 1998); Nesbit v. Pepsico, Inc.

, 994 F.2d 703, 705 (9th Cir. 1993). However, circumstantial evidence of discrimination is still evidence, and is particularly compelling here when

co mbined with the allegations of disparate treatment contained elsewhere in the FAC.NAAAOM V

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and the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6). Plaintiff’s complaint may be dismissed only when defen dant’s plausible alternative explanation is so convincing that plaintiff’s explanation is im plausible.” Starr v. Baca , 652 F. 3d 1202, 1216 (9th Cir. 2011).

Here, it is plausible that Charter’s conduct was attributable wholly to legitimate, race

- neutral considerations. But we cannot conclude, based only on the allegations in the FAC, construed in the light most favorable to Plaintiffs, that those alternative explanations are so compelling as to render Plaintiffs’ allegations of discriminatory intent im plausible. This is especially true given that Plaintiffs’ allegations of disparate treatment and disingenuous statements suggest that Charter’s race

- neutral
exp lanations lack credibility. See Desert Palace, Inc. v. Costa , 539 U.S. 90, 100 (2003) (“[E]vidence that a defendant’s explanation for an employment practice is ‘unworthy of credence’ is ‘one form of circumstantial evidence that is probative of intentional discrimination.’” (quoting Reeves v. Sanderson Plumbing Prods., Inc.

, 530 U.S. 133, 147 (2000))). In short, we can infer from the allegations in the FAC that discriminatory intent played at least some role in Charter’s refusal to contract with Entertainm ent Studios, thus denying the latter the same right to contract as a white

- owned company. Charter’s race

neutral explanations for its conduct are not so convincing as to render Plaintiffs’ theory implausible. 10

10 Charter also relies in part on In re Century Aluminum Co. Securities Litigation , in which we held that20 NAAAOM V

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III. First Amendment

Finally, Charter argues that Plaintiffs’ § 1981 claim is barred by the First Amendment because laws of general applicability cannot be used “to force cable companies to accept channels they do not wish to carry.” We disagree and conclude that the First Amendment does not bar Pla intiffs’ claim.

The Supreme Court has held that “[c]able programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broad. Sys., Inc. v. FCC , 51 2 U.S. 622, 636 (1994); see also Hurley v. Irish

- Am. Gay, Lesbian & Bisexual Grp. of Boston , 515 U.S.

[w] hen faced with two possible explanations, only one of which can b e true and only one of which results in liability, plaintiffs cannot offer allegations that are “merely consistent with” their favored explanation but are also consistent with the alternative explanation. Something more is needed, such as facts tending to exclude the possibility that the alternative explanation is true, in order to render plaintiffs’ allegations plausible within the meaning of Iqbal and Twombly

.
729 F.3d 1104, 1108 (9th Cir. 2013) (citations omitted) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). However, Century Aluminum is not particularly persuasive here because we are not confronted with two mutually exclusive possibilities. It is entirely possible that Charter was motivated by both race

- neutral business concerns and discriminatory intent

— a scenario that, given the applicable causation standard, would still give rise to a viable claim under § 1981. Because both parties’ explanations can logically coexist, we conclude that Starr , not Century Aluminum , provides the proper framework for our analysis. Plaintiffs therefore do not need to provide facts “tending to exclude” Charter’s theory of the case; it is sufficient under Starr that Plaintiffs’ explanation is not implausible.NAAAOM V

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557, 570 (1995) (“Cable operators .

. . are engaged in protected speech activities even when they only select programming originally produced by others.”) . Because Plaintiffs’ claim implicates the First Amendment, we must determine the appropriate standard of review for our analysis.

Here, there is some ambiguity as to whether rational basis review or a heightened form of scrutiny ought to be applied. Nor mally, laws of general applicability that regulate conduct and not speech

— such as § 1981

— trigger only rational basis review. See, e.g.

, Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 47, 62 (2006) (“Congress .

. . can prohibit employer s from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. ”); Cohen v. Cowles Media Co. , 501 U.S. 663, 670

– 71 (1991) (permitting application of a generally applicable law that had an incidental effect on speech and contrasting it with laws that “define[] the content of publications that would trigger liability ”).

In Hurley , however, the Supreme Court explained that even generally applicable laws directed at conduct rather than speech might implicate the First Amendment “[w]hen the law is applied to expressive activity” in a way that “require[s] speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.” 515 U.S. at 578; see also Turner Broad. , 512 U.S. at 640

– 41 (noting that “the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment” and contrasting Cohen , where enforcement of22 NAAAOM V

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a law did not directly impact expressive conduct, with Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 566

– 67 (1991), where expressive conduct was dire ctly implicated). Here, we conclude that resolution of this issue is not required, since Plaintiffs’ § 1981 claim survives even a heightened standard of review.

Contrary to Charter’s position, the fact that cable operators engage in expressive conduct whe n they select which networks to carry does not automatically require the application of strict scrutiny in this case. If § 1981 is a
content

- neutral statute, then, at most, it would be subject to intermediate scrutiny. See Turner Broad. , 512 U.S. at 642 (“[R]egulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny.”). Accordingly, § 1981 would pass muster under the First Amendment if it is content

- neutral and if “it furthers an important or substantial gover nmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 662 (quot ing United States v. O’Brien , 391 U.S. 367, 377 (1968)).

A. Content Neutrality

Section 1981 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. It is therefore “justified without reference to the content of the regulated speech.” Clark v. Cmty. for Creative Non

- Violence , 468 U.S. 288, 293 (1984). Just as “[n]othing in the [statute]” at issue in Turner Broadcasting “imposes a restriction , penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select,” 512 U.S. at 644, nothing inNAAAOM V

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§ 1981 punishes a defendant for the content of its programming. Section 1981 prohibits Charter from discriminat ing against networks on the basis of race. This prohibition has no connection to the viewpoint or content of any channel that Charter chooses or declines to carry. See Alpha Delta Chi

- Delta Chapter v. Reed , 648 F.3d 790, 801 (9th Cir. 2011) (“[A]ntidiscr imination laws intended to ensure equal access to the benefits of society serve goals ‘unrelated to the suppression of expression’ and are neutral as to both content and viewpoint.” (quoting Roberts v. U.S. Jaycees , 468 U.S. 609, 624 (1984))). Because it does not rely upon the content of Charter’s expressive conduct, § 1981 is content

- neutral.

B. Narrow Tailoring and Government Interest

Next, to satisfy intermediate scrutiny, a content

- neutral statute must be “narrowly tailored to serve a significant governmental interest.” Clark , 468 U.S. at 293. The Supreme Court has regularly emphasized that the prevention of racial discrimination is a compelling government interest. See, e.g.

, Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751, 2783 (2014) (“The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohib itions on racial discrimination are precisely tailored to achieve that critical goal.”); Bob Jones Univ. v. United States , 461 U.S. 574, 604 (1983) (“[T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education. ”). The Court has emphasized that this significant interest applies even when expressive activities are impacted:

[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique24 NAAAOM V

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evils that go vernment has a compelling interest to prevent

— wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact , such practices are entitled to no constitutional protection.

Roberts , 468 U.S. at 628. Thus, there can be little doubt that § 1981, which is part of a “longstanding civil rights law, first enacted just after the Civil War” to “guarantee the then newly f reed slaves the same legal rights that other citizens enjoy,” CBOCS W., Inc. v. Humphries , 553 U.S. 442, 445, 448 (2008), serves a significant government interest, and one that is “unrelated to the suppression of free expression.” Turner Broad. , 512 U.S. at 662 (quoting O’Brien , 391 U.S. at 377).

As for whether § 1981 is narrowly tailored to that interest

— in other words, whether “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that intere st,” id. at 662 (quoting O’Brien , 391 U.S. at 377)

— there can be no dispute that the statute “promotes a substantial government interest that would be achieved less effectively absent the regulation,” which satisfies the requirement of narrow tailoring. Wa rd v. Rock Against Racism , 491 U.S. 781, 799 (1989) (quoting United States v. Albertini , 472 U.S. 675, 689 (1985)). Such regulations are not “invalid simply because there is some imaginable alternative that might be less burdensome on speech.” Albertini

, 472 U.S. at 689. Section 1981 does not restrict more speech than necessary; it prohibits all racial discrimination in contracting, and the Supreme Court has noted that “[a] complete ban can beNAAAOM V

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narrowly tailored, but only if each activity within the
prosc ription’s scope is an appropriately targeted evil.” Frisby v. Schultz , 487 U.S. 474, 485 (1988). Here, the only activity within § 1981’s ambit is discriminatory contracting, which is, indisputably, an appropriately targeted evil. Therefore, § 1981 is na rrowly tailored and would survive intermediate scrutiny.

In summation, as with the statute analyzed in Turner Broadcasting

, § 1981 is a content

- neutral regulation that would satisfy even intermediate scrutiny as set forth in O’Brien and its progeny. There fore, the First Amendment does not bar Plaintiffs’ § 1981 claim.

CONCLUSION

We AFFIRM the district court’s order denying Charter’s motion to dismiss, and REMAND for further proceedings. We also DENY Plaintiffs’ motion to take judicial notice.