The 2015 lawsuit filed by businessman Byron Allen against Comcast Corp. has drawn a lot of attention recently. Allen sued Comcast and Charter Communications over racial discrimination after the cable giants refused to include his programming on their networks.
Allen, Entertainment Studios chairman and CEO, owns The Weather Channel, theGriot and several television stations across the country.
The U.S. Court of Appeals for the 9th Circuit ruled that Allen’s claims against Comcast and Charter were plausible, holding that “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 and can state a viable claim under Section 1981, Id. At 21a of the Civil Rights Act of 1866.”
Subsequently, Comcast petitioned the Supreme Court of the United States (SCOTUS) to hear its case. Oral arguments were heard on Nov. 13 in the case of Comcast Corporation, Petitioner v. National Association of African-American-Owned Media, and Entertainment Studios Networks, Inc. A final ruling is expected sometime in June, 2020.
“The lack of true economic inclusion for African-Americans will end with me,” Allen said. “And these rulings show that I am unwavering in my commitment to achieving this long-overdue goal.”
The Charter case, also allowed to proceed by the Ninth Circuit, still has its petition pending at the Supreme Court.
“It [the 1866 statute] has been in the books for more than 153 years and there has never been any ambiguity about this particular statute until we really tried to use it,” said Allen in an interview with theGrio before entering the court.
The question SCOTUS faces is whether Entertainment Studios has to plead that race was the key reason Allen was denied a contract; in legal terms, whether he would have been successful “but for” his race.
Erwin Chemerinsky, attorney for Allen and the dean at the University of California, Berkeley School of Law, warned that requiring Allen to prove that race was the single factor in Comcast’s decision before moving into trial was not the intention of the original statute.
“When you think of Congress’ broad remedial purposes in 1866, there is not doubt that Congress wanted then to open the door to claims with regard to race discrimination in contracting, not to close that door,” Chemerinsky said. “I think all this court needs today, then, is that the 9th Circuit is correct in saying that at the pleading stage, motivating factor is sufficient.”
According to the court transcript, Supreme Court Associate Justice Sonia Sotomayor questioned the oral argument of Assistant to U.S. Solicitor General for the Department of Justice, Morgan L. Ratner, who argued in support of Comcast. Comcast has said that it based its decision on “insufficient consumer demand” for the network’s programs.
“How can it be that if you’re treated differently because of your race in the formation of the contact, but you’re denied the contract for another reason, that other people may have been denied for, but you were treated differently, more burdens were put on you, more expenses were put on you, and at the end, they say, eh, you know, we really would never take on anyone like you with your business because, and it’s true, nobody with your business plan has been accepted before, but you’ve been run around in circles and made to expend a lot of money—why is that not actionable?” Sotomayor asked.
A recent You Tube video of a “Breakfast Club” radio interview with Allen has been viewed more than a million times at this writing and several members of the Congressional Black Caucus (CBC) have signed a letter of Amici Curiae, a brief offering information to the court. The NAACP is also standing behind Allen.
“Comcast, the largest U.S. cable provider, is urging the Supreme court to roll back vital protections in one of the country’s longest-standing civil rights laws,” states a post on the NAACP site. “Black workers and businesses are already burdened by the intentional discrimination in their day-to-day lives; weakening one of the primary vehicles for challenging that discrimination is simply unconscionable.”
Many believe the outcome of the Supreme Court decision could have a negative impact on the Black community, imperiling the 1866 law prohibiting racial discrimination in contracts.
“This statute was passed immediately after the Civil War as part of a broader effort to ensure that the newly freed slaves enjoyed the same rights as other citizens,” according to the Amici Curiae submitted by the CBC. “Critical to that effort was Section 1981’s guarantee that all persons have an equal right to make and enforce contracts without regard to race.”
The Trump Administration has also stepped in on the case. The Department of Justice has filed a brief that says they want Allen to prove that race was the singular, sole motivating factor in his claim.
In response, the CBC released a statement:
“The Trump Administration has aggressively worked to dismantle policies meant to root out discrimination,” said Gabrielle Brow, communications director for the CBC. “Our caucus is committed to continuing aggressive oversight of the Administration to mitigate the impacts of his dangerous and out of touch policies, which include opening the door to discrimination in contracts.”
Additionally, several members of the U.S. Senate and House of Representatives, including some members of the CBC, filled as Amici Curiae in September, supporting Allen.
“For nearly 50 years, the CBC has been committed to using the full constitutional power, statutory authority and financial resources of the federal government to ensure that African-Americans and other marginalized communities in the United States have the opportunity to achieve the American Dream,” it reads. “This commitment includes expanding access to capital, contracts and counseling for minority-owned businesses.”
The CBC brief, which contends that the judgment of the Ninth Circuit should be affirmed, was signed by several members of Congress, including Californians Sen. Kamala Harris; Rep. Karen Bass (CA-37) ; and Rep. Barbara Lee (CA-13).
“What Comcast is seeking to do is make it more difficult to prove a claim of discrimination by petitioning the Supreme Court to reinterpret the application of Section 1981,” said NAACP President and CEO Derrick Johnson in a recent tweet.
Additionally, the NAACP hosted a telephone conference town hall with Johnson, Sen. Cory Booker (D-NJ), Sen. Kamala Harris (D-CA) and Bradford M. Berry, NAACP General Council.
“I still find it just so egregious that this is equivalent to an attack on one of our most durable and oldest civil rights laws,” said Booker.
“Justice and equality are at stake in this Supreme Court case and I am very concerned about the lasting implications that a bad decision can have on key Civil Rights laws,” Harris said. “This section of the code was designed to stop racial discrimination in business contracts, regardless of whether discrimination was the sole reason a business contract wasn’t signed. Essentially, it would be against the law if racial discrimination was just a part of the reason a contract was signed.”
More than 6,000 persons attended the NAACP phone conference and heard about why the Supreme Court must protect one of the country’s longest-standing civil rights laws.
“Are you prepared to say business decisions based on racism are acceptable combined with other non-racist reasons?” wrote the Rev. Bernice King in a letter to Comcast CEO Brian Roberts. She accuses the company of trying to “dismantle” the law barring racial discrimination.
“This case centers on a narrow, technical point of law that will not in any way lessen the nation’s civil rights laws,” Comcast said in a recent statement. “Comcast has a strong civil rights and diversity record and an outstanding history of supporting and fostering diverse programming from African-American owned channels.”
During his radio interview, Allen said the conflict initially began years ago after he had a meeting with representatives from President Barack Obama’s administration. They asked him if big corporations like Comcast & Charter Communications were good corporate citizens.
Allen informed them that although these media conglomerates spent $70 billion on licensing, African-American owned media was getting zero.
“That’s not fair,” Allen said, noting that folks were afraid to speak up, afraid of repercussions. “‘I’ll speak up,’ I told them, and I filed a $20 billion lawsuit against Comcast and a $10 billion lawsuit against Charter.”
Allen contends that African Americans were originally positioned to fail in White America.
“We were brought here to create wealth, not to share the wealth,” Allen said in his “Breakfast Club” interview. “The moment we became free, we became a liability.”
Allen contends that African Americans have been battling against economic genocide for years.
“The battle is not in the streets,” he said. “It’s in the school rooms, where we need a proper education; it’s in the board rooms, where we need equal access to capital.”
And it’s in the court rooms.
When asked about the daunting possibility of a negative outcome in the Supreme Court case which could endanger the old 1866 law, Allen said he is not afraid and he believes Comcast is living in a bubble.
“It’s about protecting our economic inclusion,” he said. “Fear is another form of slavery. I left the plantation a long time ago.”