BY CHRISTIAN HETRICK
THE PHILADELPHIA INQUIRER/TNS
The U.S. Supreme Court wrestled with technical legal arguments Wednesday in a high stakes civil rights case that pits Comcast against media mogul Byron Allen.
The high court heard oral argument in the contentious case between Comcast and Allen, an African American entertainment executive who claims the cable giant racially discriminated against him when it refused to carry his cable-TV channels on its systems.
The Supreme Court is not weighing the merits of Allen’s claims. Still, a favorable ruling for Comcast could have far-reaching consequences, legal experts say. That’s because a Comcast win could set a legal precedent that would make it harder to bring racial-discrimination cases.
Wrong legal standard?
At issue before the court was whether a person filing a racial discrimination lawsuit under that law must allege that race was the determining reason a contract decision was made, or if a person must merely allege that race was one “motivating factor” for a case to proceed, according to legal experts.
During the hour-long hearing, both liberal and conservative justices suggested the lower court applied the wrong legal standard in allowing an Allen’s case to go forward.
They openly questioned why those alleging racial discrimination should need to claim only that race was a motivating factor, if they must ultimately prove that race was the main reason to win at trial.
“Wouldn’t it be a little unusual for us to apply different legal standards at different stages of the same case?” Justice Neil Gorsuch, a Trump appointee, asked Allen’s lawyer, Erwin Chemerinsky, the dean of Berkeley Law.
$20 billion lawsuit
Justice Elena Kagan, an Obama appointee, later said it “strikes me as confusing” to have different standards.
Chemerinsky said requiring the higher standard at the pleading stage would create an “insurmountable burden” on those alleging racial discrimination.
He also argued that even if race is used as a motivating factor to deny a contract, “then there is not the ‘same right’” that’s promised in the civil rights law.
Allen filed his $20 billion suit under Section 1981 of the Civil Rights Act of 1866, a Reconstruction-era law that prohibits discrimination against African Americans in business contracts. Specifically, the law ensures everyone in the U.S. have the “same right” to make and enforce contracts.
Justice Sonia Sotomayer, an Obama appointee, said she saw nothing in the law’s language requiring plaintiffs to allege that race was the determining reason for a business decision.
“What I see is a statute that says all citizens must have the same right,” she said.
Justice Ruth Bader-Ginsburg, a Clinton appointee, was out sick and did not attend the hearing.
The civil rights law in question “is used by everyday people and could apply to retailers, apply to housing, could apply to any type of contractual relationship,” said Michael Foreman, the director of the Civil Rights Appellate Clinic at Penn State.
“It’s that type of individual that, if they have to carry the higher burden of proving ‘but-for’ causation, it’s going to dissuade a lot of people from exercising their right.”
Civil rights backing
Comcast petitioned the Supreme Court to hear the case after the Court of Appeals for the Ninth Circuit in California ruled that Allen’s suit had sufficient claims to proceed to discovery and depositions.
The cable giant said the Ninth Circuit’s decision loosened standards on discrimination cases and was joined by pro-business groups that have filed supporting briefs, arguing that looser standards could lead to costly litigation and settlements. The Trump administration’s Solicitor General is also supporting Comcast in the case.
More than two dozen civil rights groups, including the NAACP, have backed Allen. On Wednesday, protesters picketed near the Comcast buildings in Philadelphia.
Allen is a successful comedian who came up with Jay Leno and David Letterman and now controls the largest African American-owned entertainment company in Hollywood.
In February 2015, he sued Comcast in Los Angeles federal court for not carrying his channels as the Philadelphia cable giant was seeking to acquire Time Warner Cable, which would be later acquired by Charter Communications.
A federal judge dismissed the suit, brought by Allen’s Entertainment Studios Networks and the National Association of African American-Owned Media, concluding that there could be legitimate business reasons for Comcast to act as it did. Allen then appealed.
Comcast has said race had nothing to do with rejecting Allen’s channels, noting that they had low ratings. The Philadelphia company said the Allen case is merely a business dispute and has accused Allen of turning a carriage dispute into a lawsuit.
In a statement, a Comcast spokesperson said the case “centers on a narrow, technical point of law that will not in any way lessen the nation’s civil rights laws.”
“We are optimistic the Court will reverse the incorrect 9th Circuit decision and, in light of the trial court’s dismissal three separate times of these discrimination claims, bring this case to an end,” spokesperson Sena Fitzmaurice said.
A lawyer for Allen did return requests for comment.
No more Johnsons?
Among other things, Allen alleges that a Comcast executive told someone at Entertainment Studios Networks that “we’re not trying to create any more Bob Johnsons.”
Johnson is an African American TV executive who created Black Entertainment Television, or BET, and sold it to Viacom for $3 billion almost two decades ago. Court documents do not say who at Comcast made the alleged comment or when.
Allen’s initial complaint further alleged a conspiracy between Comcast, the federal government, the NAACP, and the National Union League – allegations that were later dropped in an amended complaint.
Miguel Estrada, Comcast’s lawyer, mocked those allegations as out of this world.
“The allegation is that we paid off the oldest civil rights organizations in in the country to give us cover for race discrimination,” Estrada said. “If on any planet that satisfies the plausibility standard … the civil justice system has real problems.”
The Supreme Court is not expected to make a decision for months.