By Cash Michaels –
According to at least one North Carolina legal expert, black billionaire entertainment mogul Byron Allen’s $20-billion racial discrimination lawsuit case against cable giant Comcast Corporation, is about much more than the former comedian being able to further line his pockets after purchasing eleven television stations, a regional sports network, and the Weather Channel.
There are tens of thousands of black-owned small businesses here in North Carolina alone, along with millions more across Black America, who vitally depend on contracts with white-owned companies and government agencies.
If you’re black, and are denied an apartment lease you believe primarily, though not exclusively, because of your race, the ultimate decision in this case will affect your ability to prove that in a court of law.
What the U.S. Supreme Court, which heard the case this month, ultimately decides could have extraordinary ramifications for them, and civil rights overall, in proving future racial, gender, and sexual-orientation-discrimination cases.
Thus, the case is much bigger than Allen or Comcast, and is seen as an uphill battle for Allen.
Allen’s attorneys argue that Comcast, which owns numerous cable systems across the nation, as well as NBC Universal, NBC Television and MSNBC on cable, has refused for eight years to license lifestyle cable and digital channels owned by his Los Angeles-based Entertainment Studios Networks (ESN) to run on its system, even though Comcast has licensed $25 billion worth of programming from predominately white entertainment companies, including 80 “lesser-known” channels since 2010.
Allen, recalling that one Comcast executive originally told him they didn’t want to “…create anymore Bob Johnsons (the black founder of BET),” alleges that racial discrimination is the reason, because he has met every requirement Comcast has put forth for his channels to qualify for carriage.
Comcast counters that it has a stellar record of diversity in all areas of its business practices, denies all claims of racial bias, and charges that Allen’s ESN “….lacked sufficient commercial promise.”
Allen responded that Verizon, AT&T Uverse, and Direct TV are carrying his channels, so apparently they don’t think so.
When Allen’s attorneys sued in federal court in 2015, they cited a Reconstruction era law, 42 USC Section 1981 (otherwise known as the 1866 Civil Rights Act), originally designed to protect formerly enslaved African Americans freed at the end of the Civil War, as key.
Section 1981 says in part, “All persons within the jurisdiction of the United States shall have the same right in every State and territory to make and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens…”
Today, Section 1981 gives teeth to outlawing employment discrimination.
Atty. Irving Joyner, chair of the NCNAACP Legal Redress Committee, and an expert on civil rights litigation, says the Allen/Comcast case will test the “vitality” of Section 1981 like never before.
“The issue has to do with whether a litigant is required to prove “intentional” discrimination or must merely show that the “effect” of the challenged action discriminated against a specific person of color. A decision that intentional discrimination is required would limit the reach of the law, but would be consistent with other similar decisions that the Supreme Court has issued in past interpretations of discrimination laws,” says Joyner, who is also a professor at NCCU School of Law in Durham.
“For example, in the voting rights context, the Court ruled that intentional discrimination was required to establish a violation of the 1965 Voting Rights Act. This decision was remedied when Congress amended the Act to authorize a finding of discrimination based upon the “effect” of the offensive conduct.
In other words, that racial discrimination was the broader ultimate impact, based on a motivational factor.
The fact that the case was heard before the conservative-majority U.S. Supreme Court Wednesday in Comcast Corp. v. National Association of African American-Owned Media (Allen), in addition to lawyers from Pres. Trump’s U.S. Justice Dept. siding with Comcast against Allen—even to the point of arguing part of Comcast’s defense before the High Court—is further troubling, say Prof. Joyner and other legal experts, because it shows the Trump Administration’s zeal for dismantling traditional civil rights protections.
“You have one of the biggest media companies in the world, which has been beating up Donald Trump for racism…,” Allen told Black Enterprise magazine, “… and now they are saying, we will work together to maintain institutionalized racism in America, in this amicus brief they delivered.”
The U.S. Chamber of Commerce, American industry’s biggest lobbyist, is also weighing in on behalf of Comcast, saying, “…choices made in the workplace can be ‘inherently subjective,’ and that by making Comcast prove a negative from the get-go—that discrimination isn’t any factor in decision-making—such a standard will impose unwarranted litigation costs and reputational harm on companies throughout the country. Given lingering racial inequity in many walks of life, a standard like the one Allen demands is seen as a threat to the establishment,” wrote The Hollywood Reporter.
Conservatives want the court to mandate that racial discrimination must be proven to be the sole reason why a contract is denied to a black-owned company, known legally as the but-for causation factor, which most legal experts agree is nearly an impossible standard to prove without a defendant company voluntarily admitting to it.
Thus, the ability of African Americans to prove that race is a motivational factor, not a but-for factor, in being denied a business contract, is at stake.
Atty. Antoine Marshall of Raleigh, a candidate for the NC House and graduate of Wake Forest University Law School, identifies the danger of Allen losing his Supreme Court case.
“If Allen loses, and the Supreme Court finds that plaintiffs must prove but-for causation, it could prevent many cases from going forward. It would require a “smoking gun” in the pleading for a plaintiff to bring his case forward. And we know that no company or entity would be dumb enough to state “I’m doing this because you’re black!” so they can avoid discrimination claims by stating any vague plausible business decision as the reason. “It’s not because you’re black, but we feel our customers wouldn’t respond to the channels you’re offering.”
Marshall continued, “If Allen wins, he doesn’t win his $20 billion suit. No, his case is sent back to District Court where now he gets to go through discovery (depose witnesses, get records of communications, etc.) to try to prove a racial animus component vital to his case, because as of right now he doesn’t have any evidence of racial discrimination aside from raw contracting numbers.”
Allen’s legal battle against Comcast, and also Charter Communications around the same issue, has previously been dismissed by at least one federal court due to lack of evidence of intention racial discrimination.
The Ninth Circuit Court of Appeals finally gave Allen a ruling he liked, saying that he need only prove that racial discrimination was only a factor in Comcast denying him a contract—the direct opposite of what Comcast and Trump’s Justice Dept. argued before the U.S. Supreme Court.
The Congressional Black Caucus and major civil rights organizations (including the NAACP, which was originally a defendant in the suit because it originally supported Comcast) are not so much supporting Byron Allen’s case, but rather, what they see as an attack on Section 1981, and are urging Comcast to withdraw its defense, fearing the worst.
The High Court’s decision could be released early next year.