FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION OF AFRICAN 

AMERICAN-OWNED MEDIA, a 

California Limited Liability 

Company; ENTERTAINMENT STUDIOS 

NETWORKS, INC., a California 

corporation,

Plaintiffs-Appellees,

v.

CHARTER COMMUNICATIONS, INC., 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. CHARTER COMMUNICATIONS

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 

citizen. 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 mixedmotive claims are cognizable 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. CHARTER COMMUNICATIONS 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 in preventing racial 

discrimination.

COUNSEL

Patrick Francis Philbin (argued), Galen B. Bascom, Devin S. 

Anderson, 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 PlaintiffsAppellees.

John Bergmayer, Public Knowledge, Washington, D.C., for 

Amicus Curiae Public Knowledge.
4 NAAAOM V. CHARTER COMMUNICATIONS

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 Charter’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 action, 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 AfricanAmerican actor, comedian, and entrepreneur. It serves as 

both a producer of television series and an operator of 

television networks, and currently operates seven channels 

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 and programming to their 
NAAAOM V. CHARTER COMMUNICATIONS 5

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 representatives 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 

Entertainment 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 Rutledge 

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 support 
6 NAAAOM V. CHARTER COMMUNICATIONS

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 headquarters 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 

wanted 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 included 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 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, 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 
NAAAOM V. CHARTER COMMUNICATIONS 7

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 for 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 cable 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 factorin 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. CHARTER COMMUNICATIONS

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 the 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-final 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 termination 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 order for interlocutory appeal, 

‘we have an independent duty to confirm that 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 under 

§ 1292(b) was appropriate.
NAAAOM V. CHARTER COMMUNICATIONS 9

§ 1981(a). It further defines “make and enforce contracts” 

as including “the making, performance, modification, and 

termination 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.” Runyon 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 purposeful 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; Plaintiffs’ 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 decisions 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 § 1981 claim, 

even though it is a corporation and not an individual.
10 NAAAOM V. CHARTER COMMUNICATIONS

precedents necessitate reconsideration of our § 1981 

approach, we disagree that the but-for causation standard 

should be applied.

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 mixedmotive defense, i.e., he would have made the same decision 

regarding a particular person without taking race 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 

motivating 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 Supreme 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. CHARTER COMMUNICATIONS 11

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 rules 

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 not 

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 amended 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 “that 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 to 
12 NAAAOM V. CHARTER COMMUNICATIONS

have incorporated, 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 construed—

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 discrimination 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 the 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 is 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 statute 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. CHARTER COMMUNICATIONS 13

on a determination that “an ‘[a]nalysis of an employment 

discrimination 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 Title 

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 of an employment 

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.” (citation 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 dispute 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 the 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 goals 

and methods of two laws, [Gross] explains that we should not apply the 

substantive causation standards of one anti-discrimination statute to 

other anti-discrimination 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. CHARTER COMMUNICATIONS

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 circuit 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 and 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 authorizes 

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 provision, 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. CHARTER COMMUNICATIONS 15

context, Gross alone 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 from 

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 provision, both of which 

use the word “because” and therefore explicitly suggest butfor 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 statutory 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-00079-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 discriminatory 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. CHARTER COMMUNICATIONS

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.” Nassar, 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 factor 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 necessarily 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 Studios, 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 behavior 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 with 
NAAAOM V. CHARTER COMMUNICATIONS 17

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 supplemented 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 ‘similarly 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 these 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 time that Charter refused to carry 

Entertainment Studios’ offerings.
18 NAAAOM V. CHARTER COMMUNICATIONS

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 conclude 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 concerns, 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 there 

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 animus. 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 

combined with the allegations of disparate treatment contained 

elsewhere in the FAC.
NAAAOM V. CHARTER COMMUNICATIONS 19

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 defendant’s plausible alternative explanation is so 

convincing that plaintiff’s explanation is implausible.” 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 implausible. This is especially true 

given that Plaintiffs’ allegations of disparate treatment and 

disingenuous statements suggest that Charter’s race-neutral 

explanations 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 

Entertainment Studios, thus denying the latter the same right 

to contract as a white-owned company. Charter’s raceneutral 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 that
20 NAAAOM V. CHARTER COMMUNICATIONS

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 Plaintiffs’ 

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, 512 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 be 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. CHARTER COMMUNICATIONS 21

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. Normally, 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 employers 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 of 
22 NAAAOM V. CHARTER COMMUNICATIONS

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 directly 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 when 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 governmental 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 (quoting 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 in 
NAAAOM V. CHARTER COMMUNICATIONS 23

§ 1981 punishes a defendant for the content of its 

programming. Section 1981 prohibits Charter from 

discriminating 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]ntidiscrimination 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 prohibitions 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 unique 
24 NAAAOM V. CHARTER COMMUNICATIONS

evils that government 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 freed 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 interest,” 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. Ward 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 be 
NAAAOM V. CHARTER COMMUNICATIONS 25

narrowly tailored, but only if each activity within the 

proscription’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 narrowly 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. Therefore, 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.