The Civil Rights Act of 1866 came about during the Reconstruction Era following the Civil War for the purpose of making sure that formerly enslaved Black human beings and all other Black human beings would finally receive the same business opportunities that whites have always had.
Section 1981(a) of that Act reads, “... [C]itizens... of every race... without regard to any previous condition of slavery... shall have the same right... to make and enforce contracts... as is enjoyed by white citizens....”
A few days ago on November 13, the U.S. Supreme Court heard arguments in connection with Byron Allen’s $20 billion lawsuit, filed four years ago in Los Angeles, alleging racial discrimination by cable television giant Comcast Corporation against Black-owned channels by refusing to carry seven lifestyle cable stations operated by Entertainment Studios, of which Allen is founder and CEO. But the high court isn’t deciding who would be the ultimate winner on the merits. It is simply deciding whether Allen’s case should proceed to trial in a lower federal court or should be dismissed without trial.
Although I am an experienced trial attorney, I don’t use convoluted legal jargon. Instead, I adhere to the sage advice of Malcolm X who would always say, “Make it plain.” And that’s exactly what I’m gonna do.
As a result of the petition filed by Comcast, the Supreme Court has to decide if the Ninth Circuit Court of Appeals, located in San Francisco, was correct in 2018 when it agreed with the position of Allen and his National Association of African American Owned Media organization that the Civil Rights Act of 1866 allows cases to go to trial by showing that racial discrimination was simply “a motivating” factor as opposed to racial discrimination being the “but-for” factor (which means the only factor) causing a white-owned company to refuse to do business with a Black-owned company.
What the Ninth Circuit actually stated was that Allen “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract and not necessarily the but-for cause of that decision.” That court continued by concluding that Allen had raised “sufficient allegations from which we can plausibly infer that Entertainment Studios experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company.”
A separate but related issue for the Supreme Court to decide is if the “motivating” question or the “but-for” question is even relevant at this stage of the proceedings.
In other words, as pointed out by some members of the court, since a plaintiff in any civil case always has the burden of proving his, her or their case by the end of any trial, why should a plaintiff be required to prove anything before a trial begins and even before a plaintiff has received necessary information from a defendant through depositions and interrogatories?
Comcast claims its rejection of Allen was not totally, primarily or even partially based on race, but was based on what it perceived as Allen’s inability to attract enough customers to warrant distribution.
That’s a strange claim since the other big boys like Verizon, AT&T and DirecTV do distribute some of Allen’s stations. However, for eight straight years, beginning in 2007, Comcast has refused to do business with Allen and any of his stations, including the Weather Channel, Comedy.TV, Recipe.TV, Pet.TV, and his other widely popular networks.
In his sworn court filing, Allen said that although Comcast had told him there was no bandwidth to carry his channels, he later found out that Comcast was carrying 80 “lesser-known, white-owned” channels “at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity.”
Here’s an interesting side note: Allen accused the NAACP, which he had initially sued as a co-defendant with Comcast, of selling him out by accepting “sham funding” from Comcast to keep quiet about Comcast’s racism. The NAACP is now siding with him due to fear that the Civil Rights Act of 1866 will be drastically weakened by an adverse Supreme Court ruling.
Allen also accused the Rev. Al Sharpton and his National Action Network, which he had initially sued as co-defendants with Comcast, of selling him out by trying to “whitewash” Comcast’s racism after receiving $3.8 million in “cash donations” and “chicken dinner payoffs” from Comcast and after keeping his “Politics Nation with Al Sharpton” TV show despite its slumping ratings on MSNBC, which is co-owned by Comcast.
Despite Sharpton’s denials, it’s rather curious that both he and Comcast use the word “frivolous” to describe Allen’s lawsuit. Since when did the utilization of the 1866 Civil Rights Act to pursue equality and equity for any Black company become “frivolous?”
In his lawsuit, Allen avers that Comcast spends $25 billion yearly for channel licensing but less than $3 million on “100% African American-owned media.”
The Supreme Court is expected to make a decision by June.
If Comcast succeeds, racial discrimination lawsuits will be much more difficult to win because Black plaintiffs will basically have to prove that 100% of the reason a white-owned company rejected a contract with a Black-owned company was racism. Accordingly, a white-owned company could theoretically win a lawsuit by saying, “Ninety-nine percent of our reason for rejecting the Black-owned company’s contract was we don’t like ‘ni--ers’ and one percent was we simply didn’t like the tie the guy who happened to be from that Black-owned company was wearing.”
If Comcast succeeds, lawsuits by Black companies could be dismissed before those Black companies can get important evidence from white corporate defendants through standard depositions and interrogatories.
It should be noted that the Civil Rights of 1866 is not designed to protect only million-dollar or billion-dollar Black companies seeking fair contracts. It protects all Black people seeking any fair contracts, even a Black tenant trying to sign a lease for a one-bedroom white-owned apartment.
In other words, if Comcast wins, Black folks lose.
The opinions expressed in this commentary are his. View more opinions on phillytrib.com.