WASHINGTON — A cautious Supreme Court on Wednesday seemed to be looking for a narrow way to rule in a racial discrimination case against Comcast, the nation’s largest cable company, by a black entrepreneur who contends his race played a role in the company’s decision not to carry programming from his network.
Civil rights groups have said they feared the court might use the case by Byron Allen and his company, Entertainment Studios Networks, to limit the reach of anti-discrimination laws, but there was little evidence at Wednesday’s argument that the justices were inclined to make a sweeping ruling.
The central question in the case, Justice Samuel A. Alito Jr. said, was “not the big issue that has been portrayed.” Chief Justice John G. Roberts Jr. said the case was “somewhat academic.”
The case concerns a Reconstruction-era federal law that gives “all persons” the same right to “make and enforce contracts” as “is enjoyed by white citizens.”
The question for the justices was whether Entertainment Studios had to assert at an early stage in its lawsuit that race was a determinative reason for Comcast’s decision rather than just one factor among many. In legal terms, the question was whether Entertainment Studios had to say in its complaint that race was a “but for” cause of Comcast’s decision or a mere “motivating factor.”
In its lawsuit, Entertainment Studios said Comcast had expressed interest in its programming but never closed a deal, reversed its position on what Entertainment Studios needed to do to secure carriage, carried every network that its main competitors did except Entertainment Studios and offered space to “lesser known, white-owned” networks even as it said it lacked capacity to carry Entertainment Studios.
In a Supreme Court brief, Comcast said its decision not to make a deal with Mr. Allen’s company was prompted by ordinary business calculations, “including bandwidth constraints, a preference for sports and news programming” and insufficient demand for Entertainment Studios’s offerings.
In a statement on Wednesday, a Comcast spokeswoman said Entertainment Studios was one of 16 networks whose offerings were carried by Comcast’s main competitors but not by Comcast.
Several justices indicated that they were prepared to rule only on what plaintiffs were required to say at the outset of lawsuits. The question of what plaintiffs had to prove at trial, after the parties had exchanged information, was a separate one, several justices said.
That left open the possibility that plaintiffs may be required to assert only that race was a motivating factor when they file suit but have to prove it was a determinative factor at trial.
A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled last year that Mr. Allen’s accusations were serious enough to avoid dismissal at an early stage of the litigation.
But the appeals court said more than that, Justice Elena Kagan noted on Wednesday, quoting from its opinion in a companion case: “Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail.”
“That seems wrong, right?” Justice Kagan asked Erwin Chemerinsky, a lawyer for Entertainment Studios. Mr. Chemerinsky did not give a direct answer.
Justice Brett M. Kavanaugh suggested that the Supreme Court could return the case to the Ninth Circuit for another look.
Justice Sonia Sotomayor said it would be unfair and impractical to require plaintiffs to give a detailed account of every possible reason for a defendant’s decision just as a lawsuit is getting underway.
“What you seem to be suggesting,” she told Miguel Estrada, a lawyer for Comcast, “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. That makes no sense.”
Justice Ruth Bader Ginsburg was missing from the bench on Wednesday. Chief Justice Roberts said she was “indisposed due to illness” and would participate in the case, Comcast Corporation v. National Association of African American-Owned Media, No. 18-1171, by reading the briefs and a transcript of the argument. A court spokeswoman said Justice Ginsburg had a stomach bug.
Until this year, Justice Ginsburg had not missed a Supreme Court argument because of illness. In January, though, she was absent from the bench for two weeks after surgery for lung cancer.
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