The U.S. Supreme Court will hear arguments on Nov. 13 in a historic race discrimination lawsuit with high stakes for Black entrepreneurs and businesses around the country.
Media mogul and TV personality Byron Allen alleges that Comcast Corporation discriminated on the basis of race when it refused to carry his channels. For eight years, Allen’s company, Entertainment Studios Inc, offered its channels to Comcast for distribution. He claims the rejection was a violation of the Civil Rights Act of 1866, which was created during Reconstruction to protect Black people from discriminatory business practices.
Comcast claimed that it didn’t carry his channels due to lack of capacity, but as Allen says, Comcast launched more than 80 lesser-known, white-owned channels, according to constitutional law expert Melissa Murray, a law professor at New York University School of Law.
The 150-year old Civil Rights Act of 1866 prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. It has provided federal protection from systemic racism in business. Some fear that if Comcast wins, protection could diminish for Black Americans.
“If Comcast prevails, all victims of racial discrimination will face a higher hurdle to having their claims heard in court,” Murray said in an interview with The Grio, which is owned and operated by Entertainment Studios, Inc.
The arguments will come down this: Comcast will argue that Allen must show that race was the sole motivating reason for Comcast’s decision to refuse to carry his channels. Allen will argue that a plaintiff only needs to show that race was a motivating factor in rejecting his channels.
Allen is one of the fastest rising entertainment and media moguls. In 2018, he bought The Weather Channel for $300 million. Then he partnered with Sinclair Broadcast Group to buy Fox’s sports assets that were divested as part of the Disney merger. And on Oct. 1, he announced a $290 million deal to acquire 11 local TV stations affiliated with ABC, NBC and CBS. Now his Comcast lawsuit is about to be heard by the Supreme Court.
Allen’s lawsuit was rejected three times by a district court judge, who didn’t see discrimination as a cause for Comcast to not license his channels. He appealed and the federal intermediate appellate court overturned the decision.
“The 9th Circuit Court of Appeals concluded that (Byron Allen) needed only to plausibly allege that discriminatory intent was a factor in — not the ‘but-for’ cause of — Comcast’s refusal to license his channels,” according to Hollywood Reporter. “And the appeals court saw enough to meet this standard from the allegation that Comcast was carrying about 500 networks that Verizon, AT&T U-verse and DirecTV were carrying, but unlike its rivals, it did not carry Allen’s. In addition, Comcast was offering carriage to “lesser-known, white-owned networks” like Fit TV, Current TV and Baby First Americas. Comcast may have had legitimate reasons (e.g., no interest in spending millions for Allen’s channel about pets), but the appeals court felt that should be weighed at a latter portion of the case.”
Allen claims in the lawsuit that a Comcast executive explained its decision to reject carrying his channels by saying, “We don’t need any more Bob Johnsons,” — a reference to Robert L. Johnson, the billionaire co-founder of BET.
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This case is bigger than Byron Allen and Comcast, Murray told The Grio. “This statute protects the rights of billionaires like Allen and middle and working-class African-Americans to be free of racial discrimination in contracting—which might include everything from a cable distribution contract to an employment contract, or even an apartment lease.
“If Comcast prevails, it will be much harder for victims of race discrimination to sue employers, landlords and other businesses under section 1981 because plaintiffs will be required to prove that racial discrimination was the only factor in any disputed contracting scenario. A decision for Comcast would place additional obstacles in the path of victims of racial discrimination who want the opportunity to be heard in court.”
Although the Civil Rights Act was enacted to protect formerly enslaved African Americans, its prohibitions on racial discrimination apply to other racial and ethnic groups, Murray said. “If Comcast prevails, all victims of racial discrimination will face a higher hurdle to having their claims heard in court.”
The more conservative Supreme Court doesn’t bode well for Byron Allen and future civil rights plaintiffs, Murray added. The Trump administration filed an amicus brief — legal documents filed in appellate court cases by non-litigants with a strong interest in the subject matter — in support of Comcast.
“Many voters will fail to see the connection between the claims of a multi-millionaire media mogul and their own economic lives. But, the two are inextricably linked,” Murray said.
