Byron Allen’s racial discrimination case against Comcast comes before Supreme Court today — and that very fact has elevated his industry-centric litigation into one with legal and political implications.
The justices will be considering what the legal threshold is for a plaintiff to bring a racial discrimination complaint, after Allen sued Comcast and other multichannel distributors four years ago over their refusal to carry his set of lifestyle and entertainment channels.
The case also has put the issue of media representation in the political spotlight, as Comcast has been forced to defend its diversity record in the face of criticism from the NAACP and a lawmaker on Capitol Hill, Rep. Bobby Rush (D-IL).
On Tuesday evening, Sen. Cory Booker (D-NJ) and Sen. Kamala Harris (D-CA) joined NAACP officials for a “tele-town hall” to discuss the case.
“If successful, Comcast’s arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims,” attorneys for the NAACP Legal Defense & Education Fund argued in a friend-of-the-court brief in September.
On the other side, the U.S. Chamber of Commerce claims that a decision in favor of Allen would result in a flurry of “burdensome litigation and undeserved reputational harms” on companies, and would likely “prevent businesses from evenhandedly and fairly applying workplace standards in circumstances when doing so would be good for companies, coworkers and consumers alike.”
The justices will be focusing on a portion of the Civil Rights Act of 1866 that prohibits racial discrimination in contracts. Section 1981 gives all individuals the same rights in contracts as those “enjoyed by white citizens.”
Comcast argues that history and precedent support its argument that plaintiffs would have to meet a “but for” standard in bringing a valid discrimination claim. In other words, Allen would have to show that were it not for race, Comcast would have agreed to carry his channels.
By contrast, Allen’s legal team contends that the 1866 law sets no such “but for” threshold, and he instead has to show that race was a motivating factor in Comcast’s decision. In other words, Comcast can’t get out of the case merely by claiming that it had business reasons for rejecting the channel.
That this case made its way to the Supreme Court at all would have been a surprise just four years ago, when Allen sued Comcast along with other major multichannel TV providers.
At that time, it was treated by Comcast as a frivolous nuisance lawsuit, and while it got media coverage. After all, Allen, through his National Association of African American Owned Media, was suing for a whopping $20 billion. He was seeking carriage of channels like JusticeCentral.TV, Pets.TV and Recipe.TV.
The district court dismissed the case three times, but on appeal to the Ninth Circuit, Comcast and a defendant in another of Allen’s lawsuits, Charter Communications, were in for a surprise. The judges reversed, concluding that Allen “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract, and not necessarily the but-for cause of that decision.”
They wrote that Allen raised “sufficient allegations from which we can plausibly infer that Entertainment Studios experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company.”
Among other things, they cited Allen’s allegations that Comcast offered carriage to “lesser-known, white-owned” networks, such as Fit TV and the Outdoor Channel, “at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity.”
Comcast successfully petition the high court to take the case, arguing that the Ninth Circuit decision conflicted with opinions of other appellate courts.
That circuit split often is an incentive for the justices to jump at the chance to hear a case, but it also may be a warning sign for Allen’s legal team. Legal observers say that the conservative majority may have wanted to step in to reverse the more liberal Ninth Circuit, as they have been apt to do.
Ayesha Hardaway, assistant professor at Case Western Reserve University School of Law, cited the composition of the court and the fact that the Trump administration is siding with Comcast. Solicitor General Noel Francisco is being allotted part of Comcast’s time during oral arguments to make their case.
“If I am a litigator for Byron Allen, I am very concerned,” Hardaway said.
A decision in favor of Comcast, she said, may have an impact on the ability of plaintiffs to get a racial discrimination case off the ground, as such claims would be tossed before discovery and depositions.
“If we don’t make sure that plaintiffs have the right to initiate litigation, we are closing the doors to the courthouse,” Hardaway said.
In that regard, Comcast has taken some heat for sticking with the case rather than reaching a deal with Allen, which is what AT&T did in 2015, as it was in the midst regulatory approval of its purchase of DirecTV.
The NAACP was once a co-defendant in the case, as Allen claimed that they had taken “sham” funding from Comcast to support diversity initiatives. Now it wishes that Comcast would end its litigation, arguing that the case could “roll back the crucial protections of one of the nation’s oldest civil rights laws.”
Comcast doesn’t see it that way. Rather, it sees this as a carriage dispute masked as a discrimination case, and continues to call Allen’s claims “frivolous.” In a recent brief, the company denied that it “has engaged in any racial discrimination at any time,” and said that it has increased the carriage of minority-owned networks.
“These allegations are implausible on their own terms, and become even more implausible when considered alongside other allegations in the operative complaint reciting the legitimate, race-neutral explanations Comcast gave for its decision, including a lack of consumer demand, as well as the complaint’s concessions that Comcast has carried—and continues to carry—other African American–owned channels, including 100% African American–owned networks,” the company said. Rather than water down a key civil rights law, the company says that a decision in their favor will merely be keeping the way that it has been interpreted in the courts.
Allen’s business has changed since he first filed his lawsuit. He bought The Weather Channel and, with Sinclair Broadcasting, 21 of regional Fox sports networks, making him much more of a media player, perhaps even more so if he wins. But the case won’t be over. It would then go back to the lower court for a set of new hurdles before it ever makes it to trial.
“I feel like with the merits of the case, we absolutely could win,” Allen told Deadline on Tuesday.