Supreme Court may allow TV producer’s racial bias suit against Comcast to move ahead

WASHINGTON —  Supreme Court justices heard a major racial bias case Wednesday and struggled over whether to make it harder or easier for a black entrepreneur to sue and win a discrimination suit under the nation’s oldest civil rights law.

They were hearing appeals from two cable TV giants which sought to block billion-dollar suits filed by Byron Allen and his Entertainment Studios Networks, alleging Comcast and Charter Communications had refused to carry his channels because he is an African American.

But during the hourlong argument, the justices sounded ready to send the suits back to Los Angeles to allow them to proceed in federal court -- but without weighing in on who should win in the end.

Justice Elena Kagan said Allen may not have enough evidence now to prove that he was turned away by Comcast because of his race. But he cited adequate reasons to think race may have been a “motivating factor” in the decision, she said.

“This is a complaint,” she said. “The plaintiff is not going to know what the defendant was thinking about in making whatever contract decisions the defendant was making.... It’s enough to say they made a racist remark and they gave contracts to lots of white firms that weren’t as good as our firm.”

Washington lawyer Miguel Estrada, representing Comcast, disagreed and urged the justices to rule that a civil rights suit may not go forward unless the plaintiff set out evidence in his complaint showing that race was the deciding factor in the company’s decision. That standard, if adopted, would make it far harder for civil rights plaintiffs to bring a discrimination lawsuit.

However, Justices Stephen G. Breyer and Brett M. Kavanaugh said they agreed with Kagan’s view that the court should not set a high barrier to block lawsuits at the start. However, all three agreed that to win in the end, Allen as well as other plaintiffs would have to prove that racial bias was the reason they were denied a contract.

In 2015, Allen sued Comcast and Charter Communications, alleging their refusal to carry his channels was due to racial bias. U.S. District Judge Terry J. Hatter in Los Angeles dismissed the claim against Comcast, saying it “failed to allege any plausible claim for relief.”

But earlier this year, the 9th U.S. Circuit Court of Appeals revived both suits and cited the words of the Civil Rights Act of 1866. Adopted one year after the Civil War, it says “all persons … shall have the same right” to “make and enforce contracts … as is enjoyed by white citizens.”

Applying that standard, the 9th Circuit said a civil rights plaintiff may bring a suit based on evidence that race was a motivating factor in a contracting decision. It need not be the sole or deciding factor.

“We can infer from the allegations in the [complaint] that discriminatory intent played at least some role in Comcast’s refusal to contract with Entertainment Studios, thus denying the latter the same right to contract as a white-owned company,” wrote Judge Mary Schroeder.

Comcast then appealed to the Supreme Court, which agreed in June to hear the case. Estrada argued that Allen’s suit should be thrown out at the start because it alleged an “outlandish racist conspiracy” and did not have evidence that his race was the deciding factor in the company’s decision.

Comcast’s appeal said several of Allen’s channels, including Comedy.TV and Recipe.TV, seek to target the same audience as better-known channels such as Comedy Central and the Food Network, which are carried by the two cable companies. And the company also said it carries several networks that are partly owned by African Americans and two networks that are “wholly owned by African Americans: Africa Channel and Black Family Channel.”

UC Berkeley law professor Erwin Chemerinsky, representing Allen, stressed that his suits were at a preliminary stage. “If the complaint alleges that race is a motivating factor, then that is sufficient in order to state a claim,” he said. But to win his suit, he agreed, Allen would have show that he was turned down because of racial discrimination.