BY DAVID G. SAVAGE
LOS ANGELES TIMES/TNS
WASHINGTON – The Supreme Court on Monday agreed to hear an appeal from two of the nation’s largest cable TV firms and decide whether they can be sued under the nation’s oldest civil rights law for having refused to carry the programs of an African American-owned network.
Byron Allen, a comedian, entrepreneur and owner of Los Angeles-based Entertainment Studios Networks, said he repeatedly contacted Comcast and Charter Communications over several years seeking to have his channels carried on those cable networks.
He said those companies had made no licensing deals with programming firms owned by African Americans, and he alleged several executives had made racially derogatory comments. In 2016, he filed a $10 billion discrimination suit against Charter and a $20 billion claim against Comcast.
A federal judge in Los Angeles refused to dismiss the suits. And in February, the 9th Circuit Court of Appeals cleared the suits to proceed, ruling the cable firms could be held liable if racial bias was “a motivating factor” in their refusal to do business with Allen’s firm, even if it was not the deciding factor or the actual cause.
The discrimination suit was brought under the Civil Rights Act of 1866. Adopted by the Reconstruction Congress, it said “all persons … shall have the same right” to “make and enforce contracts … as is enjoyed by white citizens.”
ENTITLED TO ‘SAME RIGHTS’
The Supreme Court in recent decades has set a higher bar for some anti-discrimination laws, ruling that plaintiffs must prove that illegal bias was the actual cause of an employer’s decision to fire or not hire someone.
But the 9th Circuit said the older civil rights law made clear that African Americans were entitled to the “same rights” to make contracts.
“If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen,” wrote Judge Milan D. Smith Jr. in a 3-0 decision.
He said it was possible the programming decisions made by the cable companies were “attributable wholly to legitimate, race-neutral considerations,” but the appeals court refused to block the discrimination suits at a preliminary stage.
The allegations in the complaint suggest that “discriminatory intent played at least some role in Charter’s refusal to contract with Entertainment Studios, thus denying the latter the same right to contract as a White-owned company,” the 9th Circuit concluded.
Lawyers for Charter and Comcast filed separate appeals to the Supreme Court. One described Allen’s suit as alleging an “outlandish racist conspiracy.”
Their appeals said several of his channels, including Comedy.TV and Recipe.TV, seek to target the same audience as better-known channels like Comedy Central and the Food Network, which are carried by the two cable companies.
They urged the Supreme Court to hear the case and to rule that a federal civil rights suit requires proof of actual discrimination. This is referred to as “but-for causation,” meaning the decision would not have been made but for racial bias.
Charter also said the court should recognize the company’s 1st Amendment free-speech right to select the programs and channels, but the high court said it would not consider that issue.
The case is Comcast vs. National Association of African American Owned Media and Entertainment Studios Networks.