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Comcast Willing to Gut Civil Rights Law to Stop Byron Allen Lawsuit

November 18, 2019

Comcast Corp. v. National Association of African-American Owned Media might seem like a simple David and Goliath story of a Black entrepreneur fighting white-owned corporate power. But the implications of the pending SCOTUS ruling reach further than many realize.

Comcast Corp. v. National Association of African-American Owned Media might seem like a simple David and Goliath story of a Black entrepreneur fighting white-owned corporate power. But the implications of the pending SCOTUS ruling reach further than many realize.


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Story Transcript

This is a rush transcript and may contain errors. It will be updated.

JACQUELINE LUQMAN: This is Jacqueline Luqman with The Real News Network.

This week the Supreme Court heard arguments in the case of Comcast Corporation versus National Association of African American Owned Media bringing to the national forefront the long running feud between Byron Allen’s Entertainment Studios Network or ESN and Comcast Corporation and Charter Communications Incorporated. Allen alleges that Comcast and Charter refused to carry ESN’s content on their networks. But Comcast has argued that Allen hasn’t proven that racial bias was a major factor in their decision not to carry the networks or the channels, so the case should not be heard in court at all.

BYRON ALLEN: That’s nothing more than economics. Comcast will say things like, well, we do business with black people.

SPEAKER: Yeah.

BYRON ALLEN: I never said you don’t do business with black people. What I said is, is that you spend over 11 billion a year licensing cable networks and African Americans get close to zero of that 11 billion.

SPEAKER: Amen.

BYRON ALLEN: Don’t talk about who you’re in business with. Talk about how much money do they get of that 11 billion dollars. That’s what … It’s like that’s what they don’t say. What they say is, is that Byron Allen’s networks are lowly rated. Well, if I’m able to sue you and bring forth the contracts, I can show that you carry over 100 white-owned networks that have lower ratings than our networks.

What they say is, is that Byron Allen’s quality is low, the quality of his networks are low. What I say is I… If you will let me sue you, I can show contracts that you carry over 100 networks that have never been nominated for an Emmy and they have never won an Emmy. Our networks are Emmy award nominated and Emmy award winning. But I have to be able to sue you to show the judge that. See, this is what you say. You try and manipulate the people into thinking that it’s low quality or low ratings. That’s why they are trying to eviscerate this law because they don’t want me to bring that evidence forward. And I’m saying rather than eviscerate the law to hurt over 100 million Americans, just deal with me in the lower court. But that’s the evilness of Comcast.

SPEAKER: Jesus.

JACQUELINE LUQMAN: While many would look at this case and see a David and Goliath story of a black entrepreneur fighting against white-owned corporate power, the implications of the pending SCOTUS ruling are much more far reaching than many realize.

Here to talk about what those implications are and why they are critically important is Sam Spital. Sam is the Director of Litigation at the NAACP Legal Defense and Educational Fund Incorporated. Prior to joining LDF, Sam practiced for over a decade at two national law firms where he worked with LDF as co-counsel on numerous cases involving capital punishments and voting rights. Sam, thank you so much for joining me today.

SAM SPITAL: Thank you for having me.

JACQUELINE LUQMAN: All right, so just let’s get just a little bit of background to get us to where we are today on this case. Byron Allen’s case against Comcast is a discrimination suit, was thrown out by two lower courts before it was appealed to the Ninth Circuit. Is that correct?

SAM SPITAL: Yes. He actually filed two complaints in the district court and the district court dismissed both his initial complaint and then his second complaint. But as you say on appeal, the Ninth Circuit reversed that decision.

JACQUELINE LUQMAN: So when the Ninth Circuit overturned the dismissal, the second dismissal of Allen’s suit against Comcast, what was the outcome of the ruling? Was the outcome that Byron Allen won the suit or was the outcome that Allen could proceed with the lawsuit against Comcast?

SAM SPITAL: The outcome was simply that Mr. Allen could proceed with the suit so that it could go to discovery where he would have an opportunity to discover the relevant evidence and then have a possibility of moving towards a potential trial.

JACQUELINE LUQMAN: Now this is where this case sounds like a pretty cut and dried, almost boring corporate lawsuit, right? But this is where this case gets interesting. Why was the Civil Rights Act of 1866 even involved in the arguments for this case at all?

SAM SPITAL: The Civil Rights Act of 1866 includes a provision which is now part of of 42 U.S.C Section 1981, and that provision is one of the nation’s most important civil rights laws because it prohibits racial discrimination essentially in any sort of economic transaction. The language of the statute says that all persons have the same right to make and enforce contracts as white citizens. And so that could mean a contract like in this case between two businesses, but it could also mean an employer and an employee, housing situations, consumer situations, lending. All of these situations involve opportunities for individuals to make contract and this law prohibits any kind of racial discrimination in those economic transactions.

JACQUELINE LUQMAN: So this is a piece of legislation, a law that was written. The Civil Rights Act of 1866 was written specifically to overturn the Dred Scott decision in which Chief Justice of the Supreme Court at the time, Taney said that there were no rights that a black man had, that a white man was under any obligation to respect. The Civil Rights Act of 1866 overturned that decision and not only made it possible, made it legal law for Black Americans to be seen as citizens and have equal protection under the law, but also allowed for black citizens to sue in court for discrimination literally at the time for their freedom. But also subsequently for discrimination against them, especially in business and economic contracts. And so is that a pretty accurate, although very layman term filled explanation of why the Civil Rights Act of 1866 in this particular provision are important?

SAM SPITAL: Yes. The Civil Rights Act of 1866 was passed shortly after the 13th amendment to the constitution, which abolished slavery. But it was passed actually before the 14th amendment, which guaranteed equal protection of the law and before the 15th amendment, which prohibited any sort of racial discrimination with respect to the right to vote. So this was a period of time during which the Reconstruction Congress was passing both laws and constitutional amendments designed to do exactly what you said, which was to overturn the Dred Scott decision and overturn a number of laws and practices that both by law and then by practice ensured that black Americans did not as justice Taney said in that infamous decision essentially have any rights that white people had to respect. And the Civil Rights Act of 1866 and this provision in particular is an essential part of that remedial scheme.

JACQUELINE LUQMAN: So this is why, in that context, this is why several prominent civil rights organizations and the congressional black caucus even has signed on to a letter that came from the King Center calling on Comcast. The letter was sent directly to I believe the CEO of Comcast asking the CEO to reconsider its actions in this lawsuit rather in regard to how their defense could impact the interpretation of the Civil Rights Act of 1866. Is it accurate to say that Comcast is willing to use a strategy that will reinterpret the Civil Rights Act of 1866 to keep from being sued by Byron Allen for 20 billion dollars?

SAM SPITAL: I think it’s certainly accurate to say that the strategy that Comcast, the legal strategy that Comcast is employing in this case suggests a very dangerous interpretation and certainly in our view a misinterpretation of the Civil Rights Act of 1866 along the lines that you are talking about. And the reason for that is that what Comcast is seeking to do is they’re seeking to have a case where a plaintiff has valid allegations of racial discrimination as the lower courts here found that Mr. Allen did. And the Supreme Court is assuming that that part of the case is true.

But even in those circumstances there is an additional burden on the plaintiff. Even at this initial stage as you were alluding to before, before there is any additional discovery, any additional opportunity to obtain evidence that even there the plaintiff has an additional burden to at least take part of Comcast’s argument to sort of negate potential justifications that an employer or a business owner could use to justify the discrimination alleged by the plaintiff. And to put that burden on the plaintiff at that initial stage would be a serious change in anti-discrimination law generally, which would make it extremely difficult for plaintiffs to vindicate meritorious claims of racial discrimination.

JACQUELINE LUQMAN: So basically what you’re saying is, let me make sure I understand this, is that Comcast is arguing that the case shouldn’t even be heard in court because Allen hasn’t proven before the case goes to court that racial discrimination is why Comcast refused to carry ESN channels. But that proof is usually presented in the discovery phase of a trial. But Comcast wants to not even get to the discovery phase, basically putting a precondition on whether discrimination cases can even go forward.

SAM SPITAL: Yes, that is what’s happening here. Comcast is seeking to prevent Mr. Allen. And as you spoke about earlier, it’s not only Mr. Allen because the effect of the Supreme Court’s decision would affect anyone bringing the lawsuit under this essential Civil Rights statute and it would place this additional burden on plaintiffs to present evidence or allegations about the effect of a defendant’s discrimination on the ultimate outcome and most dangerously to essentially put the burden on the plaintiff to disprove an allegation that the defendant made as to, well, maybe there’s some other justification. And to put that burden on the plaintiff without any sort of evidentiary development in many cases will be an insurmountable obstacle.

JACQUELINE LUQMAN: Right. Even before a case ever goes to trial.

SAM SPITAL: Exactly. Even before there’s any discovery, let alone a trial.

JACQUELINE LUQMAN: So, if the Supreme Court rules in favor of Comcast, how does that ruling also affect the interpretation of the 14th and the 15th amendments if the Supreme Court rules that Comcast does have a right to insert this precondition into these proceedings?

SAM SPITAL: It doesn’t have any sort of immediate impact. The statute is different and the court’s interpretation of section 1981 doesn’t directly affect any case law that interprets the 14th amendment, for example. But I think that the nature of Comcast’s argument, and I should note here that Comcast in this case is being supported by the Trump administration, but the nature of the argument they’re making is one that really does call into question the basic principles of anti-discrimination law that informed the 14th amendment, that inform other civil rights statutes and really that informed the way that plaintiffs are able to bring cases and have access to court.

Because the idea that it would be the burden on a civil rights plaintiff who has a valid basis to believe that he or she has been discriminated against, to then have this additional burden to refute essentially at this initial stage, any sort of justification that the defendant wants to raise is, as I said before, it’s really a dangerous proposition and it would potentially cripple the Civil Rights Act of 1866. And again, while the decision in this case will not directly impact the decisions in any of those other areas, the idea that Comcast is making this argument here it’s a disturbing legal proposition and adverse ruling from the Supreme Court would certainly be a troubling sign with respect to the state of civil rights law generally.

JACQUELINE LUQMAN: So just to be clear that we’re covering all of our bases, because we’ve talked about the Civil Rights Act of 1866 and 14th amendment, 15th amendment and usually people think of African Americans in particular in regard to those pieces of legislation. If the Supreme Court sides with Comcast is the damage that that decision would create, would the damage be limited to just discrimination cases that people of color or African Americans would bring? Or would the damage be far reaching in relation to everyday citizens who want to prove some type of malfeasance against a corporation?

SAM SPITAL: So it depends a little bit how this Supreme Court rules. There are a number of different scenarios and there could be very narrow rulings that would not have a significant impact. And then there could be potentially a broader ruling. Section 1981 is only about racial discrimination. So the ruling itself would not go beyond that issue. However, I think that what your question gets at is that there are certain basic principles of how our legal system works and how the idea of access to courts work. And so when an individual citizen has a basis to believe that they have been a victim of corporate malfeasance or any sort of other act of misconduct, they have an opportunity under our legal system to have discovery, to present the facts, to develop the evidence they need. And the argument that Comcast is making in this case is really inconsistent with those basic principles of law.

JACQUELINE LUQMAN: I am interested, as a last question, as a practicing attorney who has been watching this case, involved in this case in some way, what are your feelings after the arguments in the Supreme Court that were held earlier of this week? What is your feeling on how this case could be ruled?

SAM SPITAL: It’s a great question. It’s a hard question both because predictions based on oral argument are always hazardous, but also because this argument I think was especially complicated. And you saw different justices wrestling with different issues. I was encouraged by the fact that I think there was a significant view among the court across ideological perspectives that one cannot require a plaintiff at this initial complaint stage to have the evidence. And I think that there was also recognition that when you have detailed allegations of discriminations like the ones that Mr. Allen had, that’s the kind of case that needs to get to the discovery phase. It can’t be just cut off at the knees essentially. So I was encouraged with some of the comments from the justices along those lines. As I said, it’s always difficult to predict. And I think that this case does involve some real unique facts and unique circumstances that make it difficult to sort of suggest exactly how the court is likely to decide the case.

JACQUELINE LUQMAN: I said that was the last question, but that was actually not true. This is honestly the last question.

SAM SPITAL: Okay.

JACQUELINE LUQMAN: Let’s say the Supreme Court in the spring, because I think we’re not expecting a decision from them until next spring. Let’s say the Supreme Court does side with Comcast. What’s the next step that needs to be taken to protect the provisions that the Civil Rights Act of 1866 provides?

SAM SPITAL: So again, I think it would depend how broad the Supreme Court wrote its decision. It could rule in Comcast’s favor but still issue a very narrow decision, which would essentially send the case back to the Ninth Circuit for further consideration. If it issued some sort of broad decision, which would be the outcome that would be in Comcast’s favor, the remedy is with Congress. This is a statute. Congress has the ability to correct any misinterpretation of the statute. And you actually saw Congress do something like this in 1991 when the Supreme Court had incorrectly undermined a number of important civil rights statutes and Congress in a bipartisan way signed into law by the first president Bush passed the Civil Rights Restoration act that made clear that the Supreme Court’s efforts to limit certain very important civil rights statutes were incorrect and Congress was going to to fix that. So that would be a place where the same thing could happen here.

JACQUELINE LUQMAN: And that’s another mine field all together considering the Congress that we have now, particularly in the Senate. But I wish we had more time to continue parsing through this fascinating case. The implications are vast and enormous depending on the ruling of the Supreme Court, but we’ll have to wait until spring of next year to find out what those implications will be and for that ruling. But in the meantime, Sam Spital, thank you so much for joining me today to give us a little bit more insight into why we all should be paying attention to this case.

SAM SPITAL: Thank you very much for having me. I appreciate it.

JACQUELINE LUQMAN: And thank you for watching. This is Jacqueline Luqman with The Real News Network in Baltimore.

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