Comcast’s justification for refusing to carry channels by Entertainment Studios Network owner Byron Allen–whose channels include Cars.TV, Pets.TV, and Recipe.TV–could arguably dismantle 1866 civil rights protections, in a case that appeared before the Supreme Court today. Totally unrelated to the case, I submit to the court that Comcast has a solid track record of sucking.
The question at this point is not whether Comcast rejected Pets.TV for racially discriminatory reasons. The question is whether Allen should be able to pursue the case at all. Comcast argues that they should be able to reject the channels unless Allen can irrefutably prove that they would have taken Pets.TV from a white business owner. Allen’s team argues that this would allow Comcast to make racist decisions, so long as Comcast can provide an extra race-neutral excuse, meaning: a discrimination case could be superseded by any additional rationale a company can think up.
In the course of the four-year, $20 billion suit, which was dismissed numerous times before being overturned by the 9th Circuit Court of Appeals, Comcast has claimed that it refused the channels based on “insufficient consumer demand,” reasoning in a belittling brief reported by Deadline that it “has carried—and continues to carry—other African American–owned channels, including 100% African American–owned networks.” In its Supreme Court brief, Comcast characterizes Allen’s defense as: “an outlandish racist conspiracy between Comcast, the federal government, the NAACP, and other civil-rights groups and leaders to disadvantage wholly African American-owned networks in violation of” Section 1981. Allen has argued that Comcast has approved channels in the past that generally target a black audience, but those channels are “are owned, controlled, and backed by white-owned media and money.”
Whether or not the “consumer demand” justification holds water, numerous civil rights organizations including the NAACP Legal Defense Fund, as well as Bernice King, believe that following Comcast’s logic itself would gut all business-related discrimination cases. They foresee a slippery slope in which a plaintiff, when filing the suit, would have to prove racial animus before the discovery stage–a nearly impossible task because how can you prove race was a motivating factor with no evidence? “This would affect any business, any employee seeking a loan from a bank, any consumer–any kind of economic transaction you can imagine,” the Legal Defense Fund’s Director of Litigation Sam Spital told Gizmodo in a phone call.
As an example of a “mixed-motive” case like Comcast’s, Spital pointed to a 2006 study in which law firms were asked to grade associates’ hypothetical work products with race in mind. Black associates were graded lower than white associates, but the graders were aware of the test-takers’ race. The test was inherently discriminatory. But if an employee were fired, the employer could use the race-neutral test scores to override a discrimination claim.
In a public statement, LDF President and Director-Counsel, Sherrilyn Ifill argued that discrimination cases all too often require the trial process in order to unearth crucial evidence. She explained:
The arguments advanced by Comcast could shield a defendant from liability by simply pointing to a race-neutral reason to justify the defendant’s discriminatory decision. That is a dangerous argument. Moreover, such a standard cannot be imposed on plaintiffs at the pleading stage of litigation. Defendants are most often in control of the kind of information that is needed to prove discrimination under any standard. Courts should not be permitted to dismiss plaintiffs’ claims of discrimination under Section 1981 by placing an insurmountable pleading burden on victims of discrimination.
Comcast is making a hairy argument over the interpretation of section 1981 of the Civil Rights Act of 1866, a federal law which states that all people will have the same right to “make and enforce contracts” under the same conditions enjoyed by white citizens. Comcast interprets this to imply a “but-for” causation, meaning that the law applies only if Allen can prove that the channels were rejected if not for his race. The 9th Circuit court disputed this, saying that Allen only needed to show that race was one “motivating factor.” The Trump Administration has predictably sided with Comcast; the Chamber of Commerce and the Justice Department filed briefs flipping the protections on their head, arguing that if Allen were white, he would have no protection under the law. Comcast, they claim, should not have to prove that race played no factor in the decision-making process and that “a plaintiff must plead and prove all elements of her claim, including but-for causation” rather than the “anachronistic result of applying a motivating factor test.”
As several outlets have reported, the Supreme Court seemed to take the position that Allen’s splitting hairs. According to Variety, Supreme Court Justice Stephen Breyer asked Allen’s attorney Erwin Chemerinsky, “What’s the difference, who cares if (plaintiffs) say motivating factor or but-for.” (There’s a difference.) Deadline reports that Justice Neil Gorsuch and Justice Elena Kagan argued that proving that race was a “motivating factor” in the complaint stage and “but-for” during the litigation would set two different standards, which Kagan reportedly called “confusing.” Chief Justice John Roberts reportedly supposed that if “clear racial animus” were a factor at any point, then it shouldn’t waive away other claims. Justice Brett Kavanaugh chimed in with the sweeping generalization that courts typically don’t throw out racial discrimination lawsuits at the pleading stage.
If the case proceeds, Spital sees a few ways this could play out.
“If the Supreme Court rules in favor of Comcast in a narrow way, saying that, yes, but-for causation is required at the pleading stage–the plaintiff could still prevail so long as there is enough to raise an inference that discrimination was a motivating factor. If the Supreme Court goes so far as to adopt Comcast’s position, the most extreme version of the position, that would mean that there would not be any recourse for Mr. Allen because a court may say that...the defendant can point to a non-discriminatory reason.”
Even if the Supreme Court rules in Comcast’s favor, the SCOTUS blog reports, the Entertainment Studios Network would urge them to send the case back to the lower courts to resolve the question of whether racial discrimination was at play.
Gizmodo has reached out to Comcast and will update the post if we hear back.