January 18th, 2021

On Law

NO JOKE: Black comedian is suing Comcast over its refusal to carry his network. The Supremes want a limited ruling

 Robert Barnes

By Robert Barnes The Washington Post

Published Nov. 14, 2019

NO JOKE: Black comedian is suing Comcast over its refusal to carry his network. The Supremes want a limited ruling
WASHINGTON - In the buildup to the Supreme Court's examination of whether cable giant Comcast refused to sign a deal with a black entertainer's TV network, some advocates argued that the case threatened to hollow out a Reconstruction-era civil rights statute assuring equal contract rights for African-Americans.

But during an hour of oral arguments Wednesday, it did not appear that the justices agreed such a monumental ruling was in the offing.

Chief Justice John Roberts Jr. pronounced the case "somewhat academic." Justice Samuel Alito Jr. declared it "not the big issue that has been portrayed." Others suggested sending it back to the lower court for more work.

Comedian Byron Allen filed his $20 billion lawsuit against Comcast after years of unsuccessful negotiations to carry the channels of his company, Entertainment Studios Network. Comcast has said it based its decision on "insufficient consumer demand" for the network's programs, but Allen contends that Comcast has constantly shifted its reasoning and made comments that he interpreted as involving his race.

Allen sued under Section 1981 of the Civil Rights Act of 1866, which says "all individuals within the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by its white citizens."

His complaint against Comcast was tossed by a district court but revived by the U.S. Court of Appeals for the 9th Circuit. It has never gone to trial or even to stage of discovering evidence.

The question the Supreme Court faced was whether Entertainment Studios at such an early stage of litigation had 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.

Allen contended he had only to make credible allegations that race was an issue in Comcast's decision-making, at least in filing the complaint.

Justice Elena Kagan said it would be awfully hard for a plaintiff to allege what was in a defendant's head before discovery even began. "The question here is really what they have to allege now," she said.

Roberts hypothesized about a lengthy contracting process in which a person encountered racial animus early on. It may be reasonable to allege "that that animus continued through, even though manifested only at one stage of the process," he said.

Miguel Estrada, a Washington lawyer representing Comcast, said it was clear in the original statute and in how it was amended in 1991 that Congress intended a successful plaintiff would have to show "but-for causation."

But several justices said it would not be reasonable to make a plaintiff at an early stage rule out every other reason the company may have had for not offering a contract.

"What you seem to be suggesting 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," Justice Sonia Sotomayor told Estrada.

He said he had not suggested that, but only that "a plaintiff is required to allege facts, not conclusory recitation of the elements of the offense."

But if the justices appeared inclined to let Allen move forward with his suit, they did not seem likely to uphold the 9th Circuit ruling in his favor. (Justice Ruth Bader Ginsburg was ill and missed the arguments but will participate in the decision, Roberts said.)

Justice Department lawyer Morgan Ratner said the appeals court had gone too far in finding that a plaintiff could prevail "if race played any role in a decision not to contract, even if it was not a but-for cause."

Several justices seemed to agree the ruling went beyond what is required at the pleading stage and would make it easier for plaintiffs to win at trial.

"That seems wrong, right?" Kagan asked Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, who represented Allen.

Chemerinsky declined invitations from several justices to denounce the appeals court decision favoring his client. But he did acknowledge that in the end, a plaintiff would probably have to prove that race was the driving factor in a defendant's decision-making.

Allen had made such a claim, Chemerinsky said, but it was enough in filing the complaint that he make credible allegations that race figured into the decision.

The important part was not to make undo demands upon plaintiffs, Chemerinsky said.

"When you think of Congress's broad remedial purposes in 1866, is there a doubt that Congress wanted then to open the door to claims with regard to race discrimination in contracting, not to close that door?" he said.

The case is Comcast Corp. v. National Association of African American-Owned Media.

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