Charter Communications has filed a petition for a writ of certiorari (PDF) in a racial-discrimination-in-contracting suit with a black-owned/oriented/audience-optimized set of cable channels. Here's a summary of its argument from a normally reliable source. Presuming that Mr Gardner's summary is somewhere close to what's in the brief, it demonstrates all too well that Justice Holmes was right in Bleistein: One cannot trust lawyers with the arts. added 21 Mar Gardner's description is accurate, on the issue discussed in this post. The petition is trying desperately to make an entirely different point, but missed egregiously on this one. The petition also misses by essentially claiming that summary judgment standards provability must be applied to a motion to dismiss, a common means of attacking civil rights-related complaints in more contexts than I can conveniently count.
In this particular instance, that means "Don't equate creative decisions and their First Amendment implications with commercial-distribution decisions and their First Amendment implications." Choosing to cast George Washington in Hamilton only with black actors, see Petition at 26, is nowhere near an oligopolist choosing to exclude already-completed expressive works from participating in a regulated marketplace. (Besides — it's not like there are no other opportunities to be cast as George Washington if you're white…) These aren't even the same parts of "freedom of expression."
Shame on the lawyers who filed this petition for even trying to compare the two issues. Perhaps they should try reading The Lathe of Heaven, in particular the section about George's Gordian Knot solution to racism. Perhaps they should just try reading. <SARCASM> And I'm not going to try to guess the racial demographics of the law firms involved… or of Charter Communications' management and Board of Directors. </SARCASM> More to the point, perhaps this says something rather unfavorable about the rest of the brief.
A more-accurate analogy — although imperfect, as all analogies are — would be if Overdrive refused to negotiate in good faith to carry any e-books published by a mid-sized, black-owned/oriented publisher. This would be especially problematic because Overdrive is an oligopolist in the library e-book marketplace. And that's what Charter is doing: It is an oligopolist regarding those markets for which it has regulatory monopolies or limited-competition agreements to provide cable service. Now, if Charter wants to argue that on the merits the particular deal that Entertainment Studios Network demanded was economically unattractive, that's a different thing… and it's a proper defense on the merits of the case. But Charter has gone overboard, seeking dismissal precisely to keep such a defense out of the record, and to claim that its business decisions can never be examined for inappropriate racial animus. Hmm, let me think back nearly thirty years to the basic course in Constitutional Law; I don't think there's any room at that inn.
And, of course, trying to scream "reverse discrimination in casting Hamilton means potential discrimination in a common carrier's carrying decisions can never be questioned" rather misses the shot on both "common carrier" and Hamilton itself, doesn't it?