UPDATE (Nov 13., 4:09 p.m. ET): During oral arguments, CNBC reported that the justices seemed to side with Comcast (the parent company of CNBC and NBC), suggesting that there was not a significant difference in the legal standards that either side says people claiming discrimination would have to meet. In other words, they seemed to say that the idea that race "motivated" the decision not to contract with Entertainment Studios Networks is hardly different from the idea that Comcast would have entered into the contract "but for" race. Justice Elena Kagan expressed concern that allowing one standard for a complaint and another for winning at trial might be “confusing.”
The justices also questioned Allen’s lawyer, according to Variety, over the fact that the 9th Circuit Court of Appeals ruled in favor of his suit based on its viability at trial under the motivating factor standard but, if the court ruled that the more stringent standard applied at trial, that court’s ruling would nonetheless be overturned. Overall, it suggests that the court might rule in Comcast’s favor in the case, but allow Allen a narrow opening to potentially continue his suit. Civil rights attorneys expressed concern that this decision will make it harder for ordinary people to meet the high hurdle to get to trial.
The Supreme Court will hear oral arguments Wednesday in a staggering corporate case that could make it nearly impossible for ordinary people who face certain kinds of racial discrimination to ever get their day in court.
And yet, most people don’t even know that their rights are on the docket — or that the nation’s second-largest cable company is behind it.
The allegation at the heart of the case is simple: One of the nation’s largest Black-owned media companies, Entertainment Studios Network, claims that Comcast Corporation, the second largest telecommunications conglomerate in the world (and NBC News’ parent company), refused to carry its channels because it is Black-owned. (According to the brief filed by the plaintiffs with the Supreme Court in September, a Comcast executive told ESN that they refused to carry its stations because “We’re not trying to create any more Bob Johnsons,” a reference to the African American multimillionaire founder of BET, which was sold to Comcast competitor Viacom, and ESN’s owner Byron Allen.)
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Thereafter, the National Association of African American-Owned Media, which represents ESN, sued Comcast in federal court, seeking $20 billion. Comcast counters that its viewers don’t want ESN programming and, in public, has claimed that ESN is a litigious bully that sues to get fees from companies like Comcast. The case has yet to go to discovery, let alone trial; the question before the Supreme Court is whether it ever will.
The civil rights community has condemned Comcast loudly and publicly, the Congressional Black Caucus has expressed concerns about the potential outcome of the case, and Rep. Bobby Rush, D-Ill., has even called for Comcast’s breakup over its actions in the case.
But just how important is this Supreme Court case for anyone not at Comcast or ESN? Very.
Comcast is being sued under the Civil Rights Act of 1866, which Congress passed in order to overturn the monstrous slavery-era Dred Scott decision. In that case, the Supreme Court had said that former slaves and even their children born free were not “citizens” and could not sue in court for their freedom. Congress’ first post-Civil War law was designed to overturn that opinion, establishing protections of citizenship to anyone, regardless of race, born in any state of the United States. It was an incomplete law, but it explicitly protects against racial discrimination in contracts, and provides anyone the right to sue and be heard in court.
The question here, then, is how much discrimination is enough to give someone their day in court. Comcast argues that the plaintiffs should have to show that race was the only motivating factor in its decision in order to go on with their case, and that they can’t; the plaintiffs say that they should only have to show that race was at least part of the motivating factor in refusing to carry ESN’s channels and they can.
In practical terms, then, Comcast is fighting to deny the National Association of African American-Owned Media the opportunity to question witnesses and get documents that would give the court enough evidence to decide if plaintiffs can go to trial.
Comcast may well be able to prove that it did not discriminate against ESN as a Black-owned business; we don’t know. The concern is that Comcast’s success in the case, which would make for a new interpretation of the law, would make it very hard for even ordinary people to have a full court hearing on race discrimination in contracting. As Kristen Clarke, the head of the Lawyer’s Committee for Civil Rights, has said, “It’s much bigger than Comcast and Allen. This is about real victims of discrimination who should not face additional hurdles in getting the opportunity to be heard in court.”
Comcast filed a motion to dismiss the complaint — a normal step in this type of litigation — but argued that the plaintiffs had to show that there was absolutely no other nondiscriminatory reason that Comcast refused to carry ESN programming. The trial judge, after allowing ESN to amend it, called the complaint “implausible” and tossed it.
On appeal, the 9th Circuit said that it was enough at this stage in the process for ESN to show race as a motive, even if they could not (yet) show it was the only motive. It did not say “Comcast, you lose”; it said, “Comcast, you litigate.”
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Comcast, though, asked the Supreme Court to review the decision. And, if the court agrees that plaintiffs alleging discrimination have to show from the outset of a case that race was the sole motivating factor in a contractual dispute, it will be very difficult to almost anyone to even get to ask defendants for witnesses and documents that shed light on their motives so that judges or juries can eventually decide. As the NAACP Legal Defense and Educational Fund said in its “friend of the court brief” supporting the plaintiffs, “If successful, Comcast’s arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims.”
If this were simply a matter of two companies arguing about whether or not there was race discrimination, there wouldn’t be this sort of outrage at Comcast. But what Comcast wants to do is avoid defending its actions in court by changing the law in a way that would make it more difficult for any person of color or minority-owned business to use the nation’s oldest civil rights law.
Comcast has every right to defend itself — and has vast resources at its disposal to do so. Ordinary people who have been maltreated could well pay the price for its refusal.
CORRECTION (Nov. 13, 2019, 10:03 a.m. ET): A previous version of this article misstated when the Supreme Court will hear oral arguments. It is Wednesday, not Thursday. It also misstated the organization that filed a “friend of the court brief” supporting the plaintiffs. It was the NAACP Legal Defense and Educational Fund, not the NAACP.