Court Again Rules That Cable Giants Can't Weaponize the First Amendment (techdirt.com) 152
Charter has been using the argument that their First Amendment rights are being violated as it fights off state lawsuits for its poor service. "It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN," reports Techdirt. "While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys 'editorial discretion,' the ruling by the U.S. Court of Appeals for the Ninth Circuit didn't agree." From the report: The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight: "As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios' claim of a legal violation -- a standard that might result in the claim being rejected. The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not 'automatically' require the court to use the tougher standard."
As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup: "The opinion on Charter's motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, 'boy' at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter's senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter's offices to tell them to 'get off of welfare.'"
As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup: "The opinion on Charter's motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, 'boy' at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter's senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter's offices to tell them to 'get off of welfare.'"
"Weaponize" (Score:5, Insightful)
I wish the court would rule that journalists and pundits must stop weaponizing the word "weaponize."
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I wish the court would rule that journalists and pundits must stop weaponizing the word "weaponize."
Weaponization has been weaponized.
Joking aside, this case has nothing to do with weaponized anything.
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Oh look, a moron.
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So if I come up with a channel of butts farting 24x7 I should be allowed to coerce Charter into including that in their channel line up? Wow you are first class stupid.
Only if you can prove that your channel was rejected because it shows mostly black butts farting, while Charter is fine with including channels of white butts farting.
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The problem is that a cable provider can't run EVERY available producer due to bandwidth limitations. At some point, a decision has to be made. Are we seeing the 9th district interceding into a private financial negotiation?
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The problem is that a cable provider can't run EVERY available producer due to bandwidth limitations. At some point, a decision has to be made.
You are correct, they can't carry everything.
And sometimes there might be "reasons". But Singer from Charter produced the evidence of exactly why Charter was shutting out ESN.
Skin pigmentation.
And trying to justify his obsession with blocking channels based on skin pigmentation is a bit silly at best.
But really - one does eventually wonder at the intelligence of these tools, and why it seems to tilt so far to one side. I'm reminded of John Schnatter's inane personal ongoing destruction of his compan
Cool. (Score:3)
Cool. One question though. What *is* the first amendment?
Re: Cool. (Score:1)
The one that mandates you have to carry TV channels nobody watches.
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DirectTV and OTA are not equivalent to cable.
Satellite broadcast are vulnerable to interruptions due to weather. Where I'm at satellite TV looses the signal every time it rains.
OTA has limited bandwidth. You get dozens of channels as opposed to hundreds.
This also ignores the piece of the cable business that is not relevant to this story, which is data broadband. In most places there is simply no competition in broadband. I have exactly one choice for real, actual broadband, and that's cable. That makes cabl
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The first amendment is the one that protects your right to hijack white house press conferences or disrupt and sabotage international nuclear deproliferation and peace talks [townhall.com], but not your right to express unapproved political opinions [quora.com].
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Were people thinking something else? Fucking yanks think they own the world.
Context (Score:2)
In the context of an article about a ruling by a Yank court, "First Amendment" means what the Yanks think it means.
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In the context of an article about a ruling by a Yank court, "First Amendment" means what the Yanks think it means.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Well, there it is. We are not allowed to declare an official religion, and we aren't allowed to make it illegal to practice a religion. note: it does not exempt religions from the law in other circumstances, as in Catholic priests are
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It's a sheet of paper. You can weaponize it by rolling it up and hitting your enemies over the head with it, or giving them paper cuts.
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That's the constitution. But considering you guys over in the UK decided to revoke nearly every section of the Magna Carta, and the Bill of Rights, and replace them with a system that's fast driving the UK into a neo-fudal state, it shouldn't be a surprise you messed that up.
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Wow, you really are a miserable git, aren't you Mashiki? Lighten up.
By the way it's not "you guys" any more.
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Wow, you really are a miserable git, aren't you Mashiki? Lighten up.
This is my bored reply unfortunately, if you wanted miserable you'd have to go look back half a year when the CPC decided to become "liberal lite" and Scheer decided to piss all over the party charter.
By the way it's not "you guys" any more.
Are you saying that the UK is no longer a collective union of various counties and townships under the control of a centralized government? If that's true, then you're simply fucked.
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Are you saying that the UK is no longer a collective union of various counties and townships under the control of a centralized government?
No, guess again.
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No, guess again.
So you *are* speeding towards neo-fudalism then.
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Getting colder. Keep trying.
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Getting colder. Keep trying.
Seems like what the politicians of the EU and UK are currently spewing, I'm spot on. Especially when they tell people and countries that you have to surrender your sovereignty to a "higher power" if you don't want to have the weight of bureaucracy to eat your face.
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Slightly warmer, but only slightly.
sounds like a joke (Score:3, Insightful)
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I agree that providers aren't obliged to carry any channel, and there are good reasons for them to not do so. It's reasonable that a provider might not carry a channel because of disputes over which service tier a channel should be placed in, the subscriber fees and cost of carrying the channel, and low viewership. However, Charter's argument of "editorial discretion" is dubious. Charter carries a wide variety of channels ranging from religious content to channels dedicated to adult content. There's no
just wait for disney to use this force disney onli (Score:1)
just wait for disney to use this force disney online fees on to all internet net subs as an must carry service.
Re: sounds like a joke (Score:2)
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The 9th circuit never saw an extension of the power of the courts it didn't like.
Re:sounds like a joke (Score:5, Insightful)
We have a law that says you can't use race as a discriminating factor in business decisions. All the court has ruled so far is that the law isn't invalid under First Amendment grounds, and the case will proceed to trial. There, it will be resolved by one side presenting evidence that race was the primary reason the channel wasn't carried, and the other side presenting evidence that they based their decision on some other factor.
If the litigants can prove that their channel was in high demand from consumers, that would be pretty strong evidence that some other concern played into the decision not to carry it. And on the other hand, if Charter and Comcast can show that few people wanted the channel, that pretty much clears them.
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From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79 percent of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.[8]
From the expected wikipedia citation.
Terrible that all circuit courts in aggregate are worse than a coin toss, but the 9th was 13% worse than that. Less than 0.2% of all decisions are reviewed, so there is no valid sample size for comparison beyond the subset of cases where parties have standing, money, and time to force a review in which the 9th is wrong in ~80% of cases.
This might be a case where nearly all of the courts chosen by people which have the means and the will to shop for judge favorability fal
Re:sounds like a joke (Score:5, Insightful)
That's not how taking cases to the Supreme Court works. Nobody, least of all the plaintiffs, can force them to take a case, they generally do so only when there's either a break between jurisdictions (Nth Circuit ruled one way, N+1th Circuit the other) or an actual dispute as to whether a law is constitutional. I would expect the long-term average for cases accepted by the Supreme Court to be around 50%, because they only take ones that are close.
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He wasn't talking about taking it to the SC. He was talking about the trial proper over the lawsuit.
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Or maybe it was because I didn't click All Comments first.
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I would expect the long-term average for cases accepted by the Supreme Court to be around 50%, because they only take ones that are close.
I very much agree with everything else you said, but you were off by an order of magnitude with your 50% guess. The actual number of cases that are granted writs of certiorari (i.e. are accepted to be tried before the Supreme Court) is generally around 2-3%.
https://supremecourtpress.com/... [supremecourtpress.com]
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That is not what my 50% figure was estimating.
My expectation is, of the cases that are granted certiorari, roughly equal numbers will be upheld vs overturned. This is specifically because the court selects the cases to try from a much larger pool. Cases where the lower court is obviously correct will not be accepted. Because cases must normally go through multiple lower levels, there are very few where the lower court is obviously wrong. With strong systems against cases with little dispute, we are left (or
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What is the standard of evidence here? If it's balance of probabilities then it seems like Charter is fucked.
Re:sounds like a joke (Score:4, Insightful)
What is the standard of evidence here? If it's balance of probabilities then it seems like Charter is fucked.
While it's easy to point at people and call them racist, once you're in a court the balance of probabilities means you better have some fucking evidence.
In this case, all Charter has to do is literally point to a fuckton of non-black channels that they refuse to carry, and then the burden of crossing the 50% (BoP) hurdle lies with the claimants.
I'm guessing that they have next to no evidence that their channel is declined due to racism. Charter doesn't need to provide reasons for declining, while the claimant does.
Your particular usual standards on this forum is to simply make subjective claims, or claims based on subjective "evidence" (such as your "evidence" of sexism/misogyny in CS by pointing to declining female participation since the 80s).
Evidence that Charter refused to carry the channel is not evidence that it refused to do so on racist grounds. If the claimant cannot produce actual documentation that Charter refused on racist grounds, then this claim is going nowhere fast.
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If it's balance of probabilities then witness statements confirming racism, especially independent witnesses or multiple similar accounts, will carry a lot of weight.
Will they have access to Charter emails? I think they can ask the judge for access. Seems like some insight into their decision making process would be relevant. The judge might question why Charter was't providing those emails in its defence too, should they choose not to.
Just refusing to carry some non-black-owned channels is meaningless and
Re:sounds like a joke (Score:4, Insightful)
If it's balance of probabilities then witness statements confirming racism, especially independent witnesses or multiple similar accounts, will carry a lot of weight.
Not if Charter already carries black channels, which they do.
Will they have access to Charter emails? I think they can ask the judge for access. Seems like some insight into their decision making process would be relevant. The judge might question why Charter was't providing those emails in its defence too, should they choose not to.
Just refusing to carry some non-black-owned channels is meaningless and doesn't help them, because they may have legitimate non-racist reasons for doing so.
Not if they already carry black channels, which they do.
All that matters is if racism was a factor with this channel.
And the claimant in this case appears to be fucked because Charter already carries black channels.
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Just carrying "black channels" doesn't help them. What matters is how they made the decision about this particular channel.
Maybe the other channels predated the current racist staff, or were evaluated by someone else. Maybe they are owned by other companies, or they had to take them as part of a larger deal/bundle. The fact that they have them doesn't prove anything about this decision.
Re: sounds like a joke (Score:3)
Hilarious. You just argued that carrying other black shows isn't evidence they're not being racist when it comes to this channel, and refusing to carry many white shows isn't evidence they're not racist when it comes to this channel ... but that "eyewitness accounts" of random incidents are somehow "heavy evidence" that they are racist when it comes to this channel.
Your standard of evidence seems to be "anything that makes them look guilty is evidence, everything else is not".
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I'm sorry c6gunner, if that's how you understood my comment then your reading comprehension is too poor to continue this conversation.
Re: sounds like a joke (Score:2)
Yeah, it's always someone else's fault.
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Only sometimes. Like this time.
I've noticed that you always try to interpret everything in the most ridiculous possible way. I don't know if it's deliberate or if you just have poor reading comprehension skills, but either way I'm not going to keep repeating myself in the hope that you get it one day.
Argue in good faith or forget it.
Re: sounds like a joke (Score:2)
There was zero interpretation; you literally argued exactly what I said:
"Just refusing to carry some non-black-owned channels is meaningless and doesn't help them"
"Just carrying 'black channels' doesn't help them"
"witness statements confirming racism, especially independent witnesses or multiple similar accounts, will carry a lot of weight"
If you find your own words ridiculous ... well, that makes two of us. Perhaps instead of playing the poor misunderstood victim you could try making a coherent and consis
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You seem to be admitting that you either didn't read the whole post, or just ignored the bit you found inconvenient.
"Maybe the other channels predated the current racist staff, or were evaluated by someone else. Maybe they are owned by other companies, or they had to take them as part of a larger deal/bundle. The fact that they have them doesn't prove anything about this decision."
Re: sounds like a joke (Score:2)
Re: sounds like a joke (Score:3)
Because "they carry other black channels" is the same reasoning as saying that someone can't be racist because "they have a black friend."
Which is actually very good evidence that someone isn't racist, despite the fact that idiots laugh it. These being the same idiots who accuse a guy like Milo Yannopolous of being a Nazi despite the fact that he's a Jewish homosexual married to a black man. If the fact that you willingly chose to spend your free time with black friends (or marry a black boyfriend) isn't evidence that you're not racist towards blacks, then literally nothing else is. At that point you may as well call every single human bei
Re: sounds like a joke (Score:2)
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These being the same idiots who accuse a guy like Milo Yannopolous of being a Nazi despite the fact that he's a Jewish homosexual married to a black man
You don't that's possible? Milo didn't choose to be gay or ethnically Jewish, those are things thrust upon him. He's not Jewish, he's Roman Catholic. He just had Jewish ancestory. He certainly has a history of anti-semitic and Nazi-sympathetic actions, like donating $14.88 to a Jewish journalist, using passwords like Kristall and longknives1920, hanging out with Richard Spencer at a karaoke bar where their crowd was kicked out for doing sieg heil salutes, and more.
And I don't know how familiar you are with
Re: sounds like a joke (Score:2)
It's true; if you have no sense of humour and are mildly retarded I can absolutely see why you would think that this particular Jewish homosexual married to a black man was secretly a closeted Nazi who wants to kill all homosexuals, Jews, and blacks.
If, on the other hand, you're a relatively intelligent human being with a healthy sense of humour who grew up hanging out on IRC or 4chan, you would see him for what he actually is: a hilarious troll who holds nothing sacred and will gladly trample over any bou
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The term "black channels" is itself vague. The point isn't that the content contains African-American actors or presenters, but that the production company is owned by African-Americans. So the contention is that Charter refused to do business with an African-American owned company, not whether the content contained black performers.
So the fact that Charter might carry a program produced by Disney or Warner Brothers that contains African-American performers is not a defense.
Contentions that executives at Ch
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Trolled by the law. Pathetic, but predictable.
Re: sounds like a joke (Score:1)
A broadcast station can exercise must carry if the cable operator is within city grade coverage. Most providers opt for retransmission agreements that get them a little more in exchange. Likewise, cable ops also have a number of public access requirements. I have not looked deeply to see if ESN falls under those coverage rights.
Re: sounds like a joke (Score:1)
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This lawsuit sounds like a bad joke. No channel has right to force a provide to carry their channel. Don't even see how this even got past hearing stage. Why would a tv provider carry a channel if it isn't a channel people want? Its like forcing you to buy a car with features you don't want but they make you pay for them anyway.
Yeah, sorta. The problem is that Singer of Charter made it very clear that their refusal to carry ESN was based on skin pigmentation. Some folks gotta come to the realization that it isn't 1860 any more.
And the airwaves are the property of the American people. That is what rules the matter. Yes, they auction portions off as a sort of rental, but there are rules that have to be obeyed. A cell phone provider is not allowed to refuse to provide service based on skin pigmentation either.
Even so, the con
For all intensive purposes the 9th is normal (Score:2, Insightful)
For all intensive purposes [wikipedia.org], the Ninth Circuit is no different from other circuits. While an extensive property, such as mass or number of rulings reversed per year, varies with an entity's size, an "intensive" property, such as density or fraction of rulings reversed, can be compared between smaller and larger entities.
Last I checked, the percentage of the Ninth Circuit's rulings that the Supreme Court reviews and ultimately reverses isn't that far out of line with other circuits. It's just that you hear ab
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But the cable companies do care and there's numerous previous examples of them blacklisting channels to manipulate the entertainment market, the economy, or the media itself directly. Just search online for information pertaining to the debacle about Dodgers TV.
And cable companies are often... (Score:1)
a monopoly. Any business with monopoly status loses certain rights in relation to its 'market discretion' since they now have the power to manipulate the market.
Doesn't anyone remember AT&T or the failed Microsoft anti-trust? Both are very similar to what is being accused here.
And for most cablegoers, until a channel is offered they won't know if they want it. That is kind of the whole point of cable, the kitchen sink of television stations.
Re: Civil Rights applied to cable television? (Score:1)
Good luck with that idea. The fact is, Charter, Comcast, Cox, AT&T, Time Warner, are all evil companies who have screwed Americans and not in the good way like in porn.
Re: Civil Rights applied to cable television? (Score:2)
They should just hand the judge the TV guide (Score:1)
Sure they can (Score:5, Interesting)
And at the risk of being modded troll (because nobody likes bringing the parties into it), once again this wouldn't be happening if Trump wasn't in office. If we can stave his man Pai off for 2 more years we've got a chance to restore Net Neutrality, but that means voting for a Democrat. The question for the Trumpers is, is Net Neutrality worth it? We'll find out.
Charter and Comcast (Score:3)
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Are Charter and Comcast noticeably worse than satellite ISPs?
1st Amendment? (Score:2)
What the hell does the first amendment have to do with what channels they put on cable? That's a purely business decision. The simple solution to this problem is to stop handing out monopolies to these giant companies. Bust them up and let the market sort it out.
Paid Speech != Free Speech (Score:1)
Corporations are not capable of truly free speech.
Weaponize? First amendment card? (Score:1)
The first amendment isn't a card to be played, and it certainly isn't a weapon. I've heard this "weaponize the first amendment" phrase a couple times over the past year, and it's not right in any way. This anti-first amendment rhetoric I hear seems to come from the far-left. I never thought I'd hear the far left being against the first amendment, but here we are.
This kind of crap is dangerous. First it's Trump from the far-right demonizing the media as "enemy of the people". Now it's the far-left that
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I never thought I'd hear the far left being against the first amendment, but here we are.
Been going on for the better part of 15 years now, you musta missed it. But it's the same far left pushing "hate speech" laws, and demanding the revocation of uncomfortable speech to avoid hurting a persons feelings. Wanna see the end of the line? Look to Europe where speech is controlled, and you can be arrested and detained for having an unpopular opinion. Or be detained and arrested for simply publishing the truth, and it's "uncomfortable" to the ruling government of the day.
This kind of crap is dangerous. First it's Trump from the far-right demonizing the media as "enemy of the people".
Well first, Trump isn't fa
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Speaking of media, no you are not correct. Media don't act as the "enemy of the people" but they act as opportunists and money maker (e.g. viewer rating). ... Most of these extremists will also reject any evidence that demystify those fabricated stories.
Well you just proved my point. They're chasing numbers, not fact, they don't care if their reporting is correct, only how many people it can draw. That is how the media is the enemy of the people, they don't care for fact, objectivity, dividing lines between news and opinion.
The whole "reject evidence that demystify those stories" is a very common trend in all mainstream media today, especially with the people who listen to mainstream sources and accept them without any reservation. Let me give you an ex
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Nah, they're not enemies of the people for chasing numbers or not chasing facts. Being factual or correct was never a requirement for the free press. Free press is like free speech: you aren't limited to only saying or reporting the "correct" things.
And have you asked the question as to why the media is trusted less then politicians these days?
Half joking there, but as above, you aren't owed truthful news. If you want a truthful non-biased news network, build one yourself. That may involve you cleaning up your room and get you life together first though.
Hard to do especially when the government is now handing out cash and tax breaks to news media instead of letting them sink or swim on their own.
That's what we tell the left when they complain. Don't like how few women are in [insert industry]? Start your own company and hire some women. Don't like how men get paid more? Work harder and do a better job.
Unfortunately for you, it appears few conservatives practice what they preach to the left. There are certainly new alternative media sources trying to take a bite out of MSM's lunch, and some even boast how they're the future for news reporting as people lose trust in the MSM. Problem is they too chase after viewers and money, not facts.
Well why don't we just look at the state of "go make your own." Look at the youtube replacement, that was host-killed, payment-killed, and unable to stay afloat because leftwing groups attacked them. Then go look at a twitter replacement like gab.ai, where the left wen
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The first amendment isn't a card to be played, and it certainly isn't a weapon. I've heard this "weaponize the first amendment" phrase a couple times over the past year, and it's not right in any way. This anti-first amendment rhetoric I hear seems to come from the far-left. I never thought I'd hear the far left being against the first amendment, but here we are.
Yes, here we are indeed.
According to the Left, the First Amendment:
Does protect nude dancing
Does not protect political speech, at least not if anybody has to pay money to distribute it
Does not protect deciding what you want to broadcast on your own network (see the story)
It would be so much easier if there was a choice (Score:1)
Where I am I can get Specturm or Spectrum (Time Warner which messes up all kinds of things) If there was a choice it would be not them. As the cards fall there is no choice so boycotting stupid stuff is not relevant. There is no choice, I can't go to a competitor because there isn't one. Not having internet isn't an option because I work remotely, although it was considered on month 3 of them messing up even the most pedestrian of tasks. Now I get bothered with 3-4 calls offering me services I patently
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If you work remotely, could you work remotely from a different city with a better ISP?
Companies are not people (Score:4, Insightful)
A bit upside down there, bud. (Score:1)
The people in corporations don't lose their rights because they operate a corporation.
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The people in corporations don't lose their rights because they operate a corporation.
How are the people running the corporation having their rights infringed? They still have all the first amendment rights in the world. If you want a corporation to have rigths, then corporations and their boards should be held criminally liable for its actions up to, and including, the death penalty for violating laws that result in harm to or deaths of individuals as well as damage or harm to people's properties and the environment. If a corporation is willing to face dissolution for violating the law (
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The first amendment does not apply to corporations.
You may wish it to be so, but courts have repeatedly ruled that corporations do in fact have some constitutional rights, including rights under the first amendment.
https://en.wikipedia.org/wiki/Corporate_personhood
Right, because we need another BET (Score:2)
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BET was sold to Viacom in 2001.
It's rich white people pushing that "manufactured toxic" culture to black people.
But, never let something as insignificant as the truth come between you and your race baiting.
LK
Simple (Score:3)
Is ESN charging the cable companies to carry it's stations?
If Yes, then tough shit for ESN, you can't force someone to carry your programming.
If No, how much does it cost the cable company to add the channels and carry them? If more than $0 , then tough shit for ESN. you can't force someone to carry your programming.
Now if ESN is offering to pay them to carry the channels, then there might be a case....
Re: Simple (Score:2)
Re: Simple (Score:2)
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Let ESN waste it's money, they aren't going to win,
Re: Simple (Score:2)
rats (Score:2)
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You can plug the aerial into your tv and get Free to Air channels.
Free. And not that many of them in some parts of USA.
And then subscribe to Netflix or Prime or whatever to watch other stuff.
Oh, sorry, this is the USA isn't it, so ... your cable tv probably IS your only internet provider?
I have never understood the cognitive dissonance of the USA's cheerleading of capitalism and competition and yet their apparent large lack of competition in many locales when it comes to ISPs and Cable TV options...
Easy fix (Score:2)
Just add a couple of evangelical christian services to ESNs lineup. Cable companies will carry every 500 watt christian station or risk the wrath of the religious community.
Common sense (Score:2)
ESN is going to lose hard.