WASHINGTON—A black television programmer angry that Comcast Corp. refused to carry his company’s channels after years of unsuccessful negotiations should be able to sue the nation’s largest cable television provider for race-based discrimination under federal civil rights laws, his lawyer told skeptical members of the Supreme Court.
Philadelphia-based Comcast succeeded in having the $20 billion racial-spoils lawsuit dismissed early in the litigation process. But a panel of the 9th Circuit Court of Appeals found the allegations raised against the company plausible enough to move forward and reinstated the action.
Comcast appealed that decision and the Supreme Court agreed June 10 to hear the appeal; the Trump administration filed a brief with the court supporting Comcast’s position. The case has never reached the evidentiary discovery stage or gone to trial.
The case is cited as Comcast Corp. v. National Association of African American-Owned Media. According to that group’s rarely updated website, NAAAOM’s radical mission is to fight for “equal access to distribution, investment capital, sponsorship, and other critical resources.”
“Only by creating sustained equal opportunities to communicate can we begin to rectify continued racial imbalances in the economy and society as a whole,” the website states.
In the case at hand, Comcast declined to do business with Los Angeles-based Entertainment Studios Networks (ESN), which is owned by black entrepreneur and comedian Byron Allen. Comcast said there was “insufficient consumer demand” for ESN’s programs, but Allen said Comcast has carried a multitude of white-owned networks and offered multiple different excuses and made comments he construed as racial in nature.
ESN’s argument seemed to be that it had a kind of affirmative action-like right to be carried by Comcast. The company sued under provisions of the Civil Rights Act of 1866, now known as 42 U.S. Code Section 1981.
That law provides that everyone in the United States “shall have the same right ... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
The question before the high court concerned the correct legal test to be applied in the circumstances, and about the reach of the 1866 law, which guarantees both white and non-white Americans the equal right to enter into and enforce contracts.
During oral arguments on Nov. 13, attorney Erwin Chemerinsky, the dean of Berkeley Law School who represents Allen, said the civil rights statute is “about creating a requirement for color-blindedness with regard to contracting.”
The Supreme Court justices themselves seemed alternately confused about and unmoved by the reasoning employed by the 9th Circuit as they delved into procedural issues.
Chemerinsky acknowledged he would have to meet a higher bar to win the case at trial, even though a lower standard should apply when at the outset of the lawsuit.
“Why do we let you go further if you can’t win?” said Justice Stephen Breyer.
Chemerinsky replied: “Your Honor, because this court has said we don’t want to determine at the pleading stage what was the actual cause. That’s a question of fact for the jury.”
Justice Elena Kagan said, “it just strikes me as confusing” to use two different standards for “the pleading stage as opposed to the ultimate stage.”
The 9th Circuit seemed to want to apply the lower standard throughout all stages of the lawsuit, she said.
“That seems wrong, right?” she said. “Don’t you think that the 9th Circuit has to be reversed?”
Chemerinsky failed to answer the question directly, which made Justice Neil Gorsuch testy.
“Don’t you agree that the 9th Circuit was wrong?” he asked.
Chemerinsky’s explanations continued not to satisfy Gorsuch, who declared, “I’ve got it. We’re not going to get an answer.”
Justice Brett Kavanaugh asked what would happen if the Supreme Court did away with the 9th Circuit’s opinion and directed the lower court to reexamine the case again, this time using the higher standard throughout all phases of the litigation.
“What is wrong with that decision?” Kavanaugh said.
“Well, because it’s not the issue before this court,” Chemerinsky said.
In response to a question from Chief Justice John Roberts, Chemerinsky said, “We live in a world of multiple causes, and we believe that all that’s required by the plain language of the statute or by Congress’s broad remedial intent is that race be a motivating factor.”
Justice Sonia Sotomayor addressed Comcast attorney Miguel Estrada, suggesting he was applying too strict a standard to the other side’s case.
“What you seem to be suggesting is that they’re required to anticipate every potentially independent reason you may have had without really knowing it and disproving it in the complaint.”
Estrada denied Sotomayor’s assertion, responding that “a plaintiff is required to allege facts, not conclusory recitation of the elements of the offense.”
Justice Ruth Bader Ginsburg was absent from court during oral arguments. The 86-year-old jurist, who has vowed to serve until at least 2020, has a history of health problems that have kept her away from court sittings this year. A court spokeswoman said Ginsburg was out because of a stomach-related illness.
The chief justice said that, despite her absence, Ginsburg would participate in deciding the case.
