Supreme Court Rejects Black Comic's $20 Billion Suit Against Comcast

But The Case Will Still Go On

Supreme Court Rejects Black Comic's $20 Billion Suit Against Comcast
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The US Supreme Court has ordered the 9th Circuit Court of Appeals to re-visit its ruling that had affirmed comedian and billionaire media mogul Byron Allen’s $20 billion racial bias lawsuit against media giant Comcast Corp. Allen has long claimed that the cable television giant consciously and purposely discriminated against black-owned channels.

The unanimous decision sent Allen’s case back to the San Francisco-based 9th US Circuit Court of Appeals to reconsider the whether Comcast’s refusal to carry Allen’s channels was due to racial discrimination; and if so, was that enough to let the case proceed. Allen, of course, is black.

Without ruling on the merits of Allen’s claims, the Justices decided that the 9th Circuit used the wrong test in assessing Allen’s charges. Writing for the Court, Justice Neil Gorsuch, a Trump appointee, said: “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered.” [Emphasis added].

This issue was first raised by Byron Allen in 2015 when he sued Comcast in federal District Court in Los Angeles. He based his charges under a post-Civil War, Reconstruction-era measure, the Civil Rights Act of 1866 — the very first civil rights law pertaining specifically to black ex-slaves. That law, which is still (at least nominally) in effect outlawed racial discrimination in all business contracts. It specifically mandated that all people have an equal right to make and enforce contracts — as per the Act: “as is enjoyed by white citizens.”

Critics said the Supreme Court’s ruling directly affects the ability of plaintiffs (read, black people) to enforce claims under the law. Thus for all practical purposes, it moots the 154-year-old law.

Video Credit: https://www.youtube.com/watch?v=3jKR2z8gysM

Again, Allen claims that Comcast refused to carry and/or distribute channels owned and operated by his company, Entertainment Studios. Comcast argued, and the Court agreed, that a plaintiff must show in its opening pleadings that a contract was denied solely because of racism. Otherwise, the lawsuit must be dismissed. That is to say, that if any reason other than racism resulted in denial or abrogation of the terms of a contract , then that contract met the standard of “fairness,” as described in the Act, and plaintiff’s case was unfounded. There may have been racism involved, you see, but if a defendant can point to some other or ancillary reason for denial, then denial of the contract is valid.

The 9th Circuit, however, ruled last year that such lawsuits, including Allen’s, may proceed if plaintiffs can show that discriminatory intent was only one factor among others in denial of a contract, and that the timing of the claim is irrelevant, according to the 9th Circuit.

It will surprise no one, of course, that Comcast is eagerly supported by the Trump regime in this matter.

Comcast allowed that it was pleased with the Supreme Court’s ruling and was hopeful, indeed, expectant that the 9th Circuit would now dismiss Allen’s case altogether and put this matter to rest.

“We are proud of our record on diversity and will not rest on this record,” Comcast spokeswoman Sena Fitzmaurice said in a statement.

“We will continue to look for ways to add even more innovative and diverse programming that appeals to our diverse viewership and continue our diversity and inclusion efforts across the company.”

Comcast further explained that it rejected Allen’s channels due to capacity constraints, not race, and that Allen’s channels (Cars.TV and Comedy.TV) did not have a promising track record which would indicate future success. Nor did Comcast discern any customer demand for Allen’s channels, or at least not enough to merit distribution.

Allen also bought the widely available (and popular) Weather Channel TV network in 2018, after this case had begun. It is not clear whether the Weather Channel is carried/distributed by Comcast.

Kristen Clarke is president of the Lawyers’ Committee for Civil Rights Under Law. She responded to the Court’s ruling thusly:

“No doubt, this ruling may shut the courthouse door on some discrimination victims who, at the complaint stage, may simply be without the full range of evidence needed to meet the court’s tougher standard.” [Emphasis added].

Even the, arguably, most liberal judge on the High Court, Justice Ruth Bader Ginsburg, a Bill Clinton appointee, sided with Comcast. She noted, however, that when the 9th Circuit re-reviews the case, “if race indeed accounts for Comcast’s conduct, Comcast should not escape liability for injuries inflicted during the contract-formation process.”

Byron Allen also sued Charter Communications on similar grounds in 2016. That suit is still pending, but no doubt will be influenced by today’s Supreme Court edict.

In earlier stages of this litigation, both Comcast and Charter labeled Byron’s claims a “scam” and vigorously sought to have them dismissed.

Byron, nonetheless, has consistently insisted that both Charter’s and Comcast’s all white, all male executives have offered nothing but insincere or invalid excuses as to why they would not buy what he was selling. And he noted that both companies have routinely granted contracts to less successful white-owned networks during the same period.

COMMENTARY

Yes, this a a real set-back and gut-punch for Byron Allen and a strategic victory for Comcast. But unlike most US Supreme Court cases, this ruling is not the last word on this matter.

Again, the High Court did not rule on the merits of Allen’s claims. That is, it did not address the question as to whether Comcast racially discriminated against him. This ruling avers that he did not properly and timely state his case, and that the 9th Circuit failed to employ the proper legal test in its assessment. The Supremes thus sent the case back to the lower court so that it may either dismiss it altogether or allow him to re-litigate his lawsuit.

Byron Allen does not quit. That’s how he got to be one of this nation-state’s very few black billionaires — by not quitting when the chips are down. That means that he’s got the means (and the chips) to keep the fires burning under Comcast.

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HERBERT DYER
HERBERT DYER
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