Whether the implied cause of action under section 1981 imposes a but-for standard of causation or a motivating factor standard

QUESTIONS PRESENTED Twice now in the context of federal antidiscrimination laws, this Court has instructed that the rule of but-for causation is the “default rule[]” against which Congress is presumed to legislate. Univ. of Tex. Sw. Med. Cir. v. Nassar, 570 U.S. 338, 347 (2013); see also Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009). In the decision below, however, the Ninth Circuit read the implied cause of action in 42 U.S.C. §1981 enacted in the Civil Rights Act of 1866 to allow a plaintiff to recover by showing that race was merely a “motivating factor” in a defendant’s decision. In so doing, the Ninth Circuit not only disregarded Nassar and Gross, but exacerbated a circuit split on the standard of causation that should apply to claims under section 1981. The Ninth Circuit then applied its diluted causation standard in a manner that would impose section 1981 liability for allegedly considering the race of a speaker in making editorial decisions or allocating scarce expressive resources, despite this Court’s contrary teaching in cases like Hurley v. IrishAmerican Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). The questions presented are: 1. Whether, in accordance with this Court’s directive that “but-for” causation is the default rule for federal anti-discrimination statutes, the implied cause of action under section 1981 enacted in the Civil Rights Act of 1866 imposes a but-for standard of causation or instead incorporates the “motivating factor” standard first created in the late twentieth century for Title VII claims. 2. Whether a cable operator has a_ First Amendment right to include racial considerations ii among the factors it evaluates in making editorial determinations as to what programming to carry on its limited bandwidth.