Attorneys for Entertainment Studios co-founder and CEO Byron Allen and Comcast engaged in a contentious back and forth with US Supreme Court justices on Wednesday as the highest court in the land debated what to do with Allen’s discrimination lawsuit against the nation’s largest cable TV and internet service provider.
Allen’s allies, including US Senators Cory Booker and Kamala Harris, and the NAACP, say the case could set civil rights plaintiffs back decades if he loses. Comcast says a victory for Allen would unduly make companies vulnerable to a flood of discrimination lawsuits.
Allen, who is black, filed his suit against Comcast in 2015, claiming the media conglomerate that services 55 million combined cable and internet subscribers factored in his race when it decided not to carry Entertainment Studios channels like JusticeCentral.TV, Pets.TV and Recipe.TV. which would violate Section 1981 of the Civil Rights Act of 1866 barring racial discrimination against non-white individuals in contracts.
Comcast is legally bound to comply with the federal law’s Section 1981 provision as a result of its 2009 acquisition deal with NBCUniversal.
According to court documents, Allen’s team argues that Comcast carries “lesser-known, white owned” networks, like FitTV and the Outdoor Channel, but refused to carry Allen’s channels even after his company took steps recommended by Comcast to secure a deal. Comcast claims its decision not to carry Allen’s channels was based on business factors alone, including viewership, and had nothing to do with Allen’s race, pointing out that it carries black-owned stations like Sean “Diddy” Combs’ RevoltTV.
At issue in the case is whether a plaintiff must prove that a contract would have been approved “but for” the petitioner’s race.
Three lower federal courts ruled in favor of Comcast before October 9, 2018, when the Ninth Circuit Court of Appeals determined Allen’s team only needed to prove that race was at least one motivating factor in Comcast’s decision and asserted the need to reestablish the merits of the “but for” standard.
Comcast appealed the Ninth Circuit’s ruling to the Supreme Court, which held oral arguments Wednesday morning.
During the hearing, Comcast lead attorney Miguel Estrada argued the court should throw out the Ninth Circuit’s ruling because the plaintiffs failed to meet the “but for” standard of proof. The justices peppered attorneys for both sides with questions about why the “but for” standard needed to be reviewed at all.
Justice Stephen Breyer suggested that the “but for” standard would apply during the trial phase of the case, not during the initial complaint phase.
“Who cares whether [the plaintiffs] say it is a motivating factor or whether they say it is a but-for?” Breyer asked.
The lead attorney for Allen’s team, Erwin Chemerinsky, responded by pointing out the “but for” standard requires plaintiffs to meet a much higher burden of proof.
Justice Sonia Sotomayor focused on the plaintiffs’ assertion that Comcast executives instructed Entertainment Studios to take steps that would make its channels more attractive to the cable provider, only to later deny the company anyway.
“Why is that not actionable,” Sotomayor said. “As long as you have enough in your complaint to show racial animus and a reasonable inference can be drawn that that’s a but-for cause, I think a plaintiff has done more than enough [for the case to move forward].”
Allen spoke to reporters on the steps outside the Supreme Court, expressing added confidence in the merits of his case.
“It went exactly the way I expected it to go,” he told Deadline.
Comcast issued a statement saying it was “optimistic” the court would eventually rule in its favor and refuted Allen’s claims that the company is racist.
“Comcast has a strong civil rights and diversity record and an outstanding history of supporting and fostering diverse programming from American-American owned channels,” the company said.
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