Byron Allen vs Comcast, 1866 Civil Rights in the balance

[Secure Da Bag]

Supreme Court to hear arguments in major race discrimination case against Comcast on Wednesday

Points

• A 19th-century civil rights law will be put to the test at the Supreme Court on Wednesday during oral arguments over a $20 billion racial discrimination suit filed against Comcast.
• A black-owned production company run by former comedian Byron Allen alleges that Comcast refused to carry its channels while offering contracts to lesser-known white-owned channels.
• Comcast argues that Allen should have to prove that absent discrimination he would have secured the contract.
• Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, said in a statement that the case is “the most important civil rights case that will be heard by the Supreme Court this term.”

WASHINGTON — A pivotal 19th-century civil rights law will be put to the test at the Supreme Court on Wednesday during oral arguments over a $20 billion racial discrimination suit filed against cable giant Comcast.

The case was brought by a black-owned production company run by former comedian Byron Allen. The company, Entertainment Studios, alleges that Comcast refused to carry its channels, including Cars.TV and Pets.TV, while offering contracts to lesser-known white-owned channels.

That runs afoul of the Civil Rights Act of 1866, Entertainment Studios argues. The post-Civil War law ensures that all Americans have the same right “to make and enforce contracts” regardless of race.

Entertainment Studios hasn’t proven that Comcast was motivated by Allen’s race, and Comcast, which owns CNBC parent NBCUniversal, denies it. Even if the Supreme Court allows Allen to pursue his discrimination claim, proving discrimination before the lower courts could be a high bar.

But the legal question before the justices is how high the bar should be — whether Allen has to prove that race was the sole factor or one factor among others. Comcast argues that Allen should have to prove that absent discrimination he would have secured the contract. In contrast, Allen argues that he should be allowed to sue even if race was only one factor.

Civil rights groups are paying close attention to the case. Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, said in a statement that the case is “the most important civil rights case that will be heard by the Supreme Court this term.”

“If successful, Comcast’s arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims,” Kristen Johnson, an attorney for the NAACP, wrote in a friend-of-the-court brief to the justices.

Comcast won its case before District Judge Terry Hatter, who dismissed Allen’s complaint. But on appeal, the 9th U.S. Circuit Court of Appeals reversed the decision.

A three-judge panel of the court wrote that it was “plausible” that Entertainment Studios “experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company.”

A spokesperson for Comcast said in a statement that the company was not trying to roll back civil rights protections.

“We have been forced to appeal this decision to defend against a meritless $20 billion claim, but have kept our argument narrowly focused,” the spokesperson said. “This case cannot detract from Comcast’s strong civil rights and diversity record or our outstanding record of supporting and fostering diverse programming from African-American-owned channels.”

Battles in the past
Comcast has faced scrutiny in the past over diversity. Amid criticism in Congress led by Rep. Maxine Waters, D-Calif., the company agreed to carry four black-owned channels as part of its agreement nearly a decade ago to merge with NBCUniversal.

It later launched channels such as Magic Johnson’s “Aspire” and “Revolt TV,” founded by rapper Sean “Diddy” Combs.

But Entertainment Studios said that those moves were effectively a sham. The company “chose to launch brand new networks that are predominately white-owned with African American figureheads” rather than carrying its channels, Entertainment Studios wrote in a brief.

But, in court papers, attorneys for Comcast balked at the distinction. The company said it carries other black-owned channels, including one “100% African-American-owned network,” a racial category it said Entertainment Studios “invented for this lawsuit.”

Comcast wrote that racial discrimination is a serious problem, but denied that a win for Allen at the Supreme Court would help solve it.

“Instead, it will permit frivolous suits such as this one to proceed in the federal courts and open the doors to burdensome discovery demands by plaintiffs who have suffered no deprivation on account of their race, while delaying justice for citizens with meritorious grievances,” the company wrote.

Erwin Chemerinsky, dean of the University of California at Berkeley’s law school, who is representing Entertainment Studios before the top court, said in an email that the case was ultimately about “how easy it will be to sue under this law.”

And he pointed to the support for Allen’s case from civil rights groups such as the NAACP.

“On the one side is Comcast, the Chamber of Commerce, and the Trump administration seeking to restrict such suits,” he wrote. “On the other side, Byron Allen is supported by about 35 civil rights groups that signed on to friend of the Court briefs on his behalf, as did several groups of law professors seeking to allow such suits to go forward.”

 

[Secure Da Bag]

Opinion | This Comcast Supreme Court case may make racial discrimination harder to fight

Comcast's Supreme Court battle with Byron Allen may make racial discrimination harder to fight
The case isn't just about the cable company and one media mogul. The results of the company's legal strategy could be devastating to civil rights law.

The Supreme Court will hear oral arguments Wednesday in a staggering corporate case that could make it nearly impossible for ordinary people who face certain kinds of racial discrimination to ever get their day in court.

And yet, most people don’t even know that their rights are on the docket — or that the nation’s second-largest cable company is behind it.

The allegation at the heart of the case is simple: One of the nation’s largest Black-owned media companies, Entertainment Studios Network, claims that Comcast Corporation, the second largest telecommunications conglomerate in the world (and NBC News’ parent company), refused to carry its channels because it is Black-owned. (According to the brief filed by the plaintiffs with the Supreme Court in September, a Comcast executive told ESN that they refused to carry its stations because “We’re not trying to create any more Bob Johnsons,” a reference to the African American multimillionaire founder of BET, which was sold to Comcast competitor Viacom, and ESN’s owner Byron Allen.)

Thereafter, the National Association of African American-Owned Media, which represents ESN, sued Comcast in federal court, seeking $20 billion. Comcast counters that its viewers don’t want ESN programming and, in public, has claimed that ESN is a litigious bully that sues to get fees from companies like Comcast. The case has yet to go to discovery, let alone trial; the question before the Supreme Court is whether it ever will.

The civil rights community has condemned Comcast loudly and publicly, the Congressional Black Caucus has expressed concerns about the potential outcome of the case, and Rep. Bobby Rush, D-Ill., has even called for Comcast’s breakup over its actions in the case.

But just how important is this Supreme Court case for anyone not at Comcast or ESN? Very.

Comcast is being sued under the Civil Rights Act of 1866, which Congress passed in order to overturn the monstrous slavery-era Dred Scott decision. In that case, the Supreme Court had said that former slaves and even their children born free were not “citizens” and could not sue in court for their freedom. Congress’ first post-Civil War law was designed to overturn that opinion, establishing protections of citizenship to anyone, regardless of race, born in any state of the United States. It was an incomplete law, but it explicitly protects against racial discrimination in contracts, and provides anyone the right to sue and be heard in court.

The question here, then, is how much discrimination is enough to give someone their day in court. Comcast argues that the plaintiffs should have to show that race was the only motivating factor in its decision in order to go on with their case, and that they can’t; the plaintiffs say that they should only have to show that race was at least part of the motivating factor in refusing to carry ESN’s channels and they can.

In practical terms, then, Comcast is fighting to deny the National Association of African American-Owned Media the opportunity to question witnesses and get documents that would give the court enough evidence to decide if plaintiffs can go to trial.

Comcast may well be able to prove that it did not discriminate against ESN as a Black-owned business; we don’t know. The concern is that Comcast’s success in the case, which would make for a new interpretation of the law, would make it very hard for even ordinary people to have a full court hearing on race discrimination in contracting. As Kristen Clarke, the head of the Lawyer’s Committee for Civil Rights, has said, “It’s much bigger than Comcast and Allen. This is about real victims of discrimination who should not face additional hurdles in getting the opportunity to be heard in court.”

Comcast filed a motion to dismiss the complaint — a normal step in this type of litigation — but argued that the plaintiffs had to show that there was absolutely no other nondiscriminatory reason that Comcast refused to carry ESN programming. The trial judge, after allowing ESN to amend it, called the complaint “implausible” and tossed it.

On appeal, the Ninth Circuit said that it was enough at this stage in the process for ESN to show race as a motive, even if they could not (yet) show it was the only motive. It did not say “Comcast, you lose”; it said, “Comcast, you litigate.”

Comcast, though, asked the Supreme Court to review the decision. And, if the court agrees that plaintiffs alleging discrimination have to show from the outset of a case that race was the sole motivating factor in a contractual dispute, it will be very difficult to almost anyone to even get to ask defendants for witnesses and documents that shed light on their motives so that judges or juries can eventually decide. As the NAACP Legal Defense and Educational Fund said in its “friend of the court brief” supporting the plaintiffs, “If successful, Comcast’s arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims.”

If this were simply a matter of two companies arguing about whether or not there was race discrimination, there wouldn’t be this sort of outrage at Comcast. But what Comcast wants to do is avoid defending its actions in court by changing the law in a way that would make it more difficult for any person of color or minority-owned business to use the nation’s oldest civil rights law.

Comcast has every right to defend itself — and has vast resources at its disposal to do so. Ordinary people who have been maltreated could well pay the price for its refusal.

 

[Secure Da Bag]

 

[Secure Da Bag]

Post from scoutusblog about the arguments today. Discuss.

In summary, the justices seem leaning towards ruling against the 9th court ruling that as long as the plaintiff alleges racial discrimination he can bring a case and for the case to go forward. They seem to be advocating that proving race was a factor is required before a case can proceed. But from my understanding what is stated in arguments isn't always indicative on how they can rule. They tend to challenge lawyers to see how they will argue a point and then rule opposite of how their questioning is perceived in court.

Argument analysis: Justices debate, but do not resolve, pleading standard for lawsuits alleging racial discrimination in contracts
Posted Wed, November 13th, 2019 4:10 pm by Amy Howe
This morning the Supreme Court heard oral argument in a lawsuit filed by Entertainment Studios Network, a media company owned by African American entrepreneur and entertainer Byron Allen, against cable giant Comcast. ESN and the National Association of African American-Owned Media, an organization with which ESN is affiliated, argue that Comcast violated 42 U.S.C. Section 1981, a federal law barring racial discrimination in contracts, when it declined to carry channels that ESN produced. The question before the justices centered on what ESN is required to allege for its lawsuit to go forward: Is it enough, as the U.S. Court of Appeals for the 9th Circuit ruled, that the complaint contends that race was a “motivating factor” behind the defendant’s decision, or (as Comcast maintains) must the complaint instead assert that the decision would have been different were it not for the plaintiff’s race? After an hour of oral argument, the justices seemed likely to strike down the 9th Circuit’s ruling, but it was less clear what standard they would select to replace it. It also seemed possible that ESN’s case might survive and move forward, at least for now.

There seemed to be little support among the eight justices – Justice Ruth Bader Ginsburg was out with what the court’s Public Information Office described as a stomach bug, but will participate in the case – for the 9th Circuit’s decision. As Justice Elena Kagan pointed out to Erwin Chemerinsky, who argued on behalf of ESN and NAAAM, the court of appeals ruled that ESN could win its case (rather than simply advancing it) if it could show that “discriminatory intent was a factor” in Comcast’s decision not to enter into a contract with ESN. “Don’t you think,” Kagan asked Chemerinsky, “the Ninth Circuit has to be reversed?” Justice Neil Gorsuch chimed in, “Don’t you agree that the Ninth Circuit was wrong?”

The debate focused primarily on what standard (if any) should be used, but there was no clear consensus. Chemerinsky endorsed a two-tiered approach, which would allow a case to go forward as long as the plaintiff alleged that race was a motivating factor in the defendant’s decision, but would only allow him to prevail if he could show that the defendant would have made a different decision were it not for the plaintiff’s race.

But several justices regarded such an approach as problematic. Gorsuch suggested that it would be “unusual” for the Supreme Court to “apply different legal standards at different stages of the same case.” Justice Samuel Alito asked whether a case that acknowledges that it could not meet the more stringent standard “at the end of the day” should be allowed “to go forward to its inevitable doom?”

Chief Justice John Roberts regarded the difference between the two standards as “somewhat academic.” He told Miguel Estrada, who argued on behalf of Comcast, that even when there is “racial animus” during the process of negotiating a contract, it could still be hard to show that the defendant would have reached a different result were it not for the plaintiff’s race. At the same time, Roberts continued, “it’s also hard to ignore the part” that racism may have played, and it “may be a reasonable allegation” that the racism continued, even if it only showed up clearly at one point in the process.

Other justices seemed to seize on this point, suggesting that the answer is not a standard that focuses on whether racism was a “motivating factor” or the primary influence on the defendant’s decision, but instead a more holistic look at the plaintiff’s contentions. Kagan acknowledged that “you don’t want people throwing around baseless allegations,” but she also emphasized that courts would be deciding whether the case can move forward before fact-finding, at which point the “plaintiff isn’t going to know everything else that could have been in the defendant’s mind.” The solution, she proposed, would be to allow the complaint to proceed “as long as the plaintiff comes forward with sufficient allegations” to show that racism was involved in the defendant’s decision.

Justice Stephen Breyer seemed to agree. He asked Morgan Ratner, the assistant to the U.S. solicitor general who argued on behalf of the federal government in support of Comcast, “If we’re talking about pleadings, what’s the difference?” If the plaintiff provides evidence, Breyer queried, that the defendant “used race improperly to deny” him the contract, “who cares whether they say it was a motivating factor or whether they say it was a but-for?”

Justice Brett Kavanaugh echoed this thought. Stressing that discrimination cases “are not usually thrown out at the motion-to-dismiss stage,” and that you instead “usually have the ultimate legal test in mind,” he asked Chemerinsky to weigh in on a test that would “look at the facts alleged in the complaint to see” “whether you could plausibly infer from those facts” that the plaintiff could prevail.

Kavanaugh reiterated that “it’s pretty rare to throw out” discrimination complaints after a motion to dismiss, observing that the complaint only needs to pass “a pretty low bar” – suggesting that ESN’s complaint would survive even if the Supreme Court were to vacate the 9th Circuit’s ruling in its favor. And Alito suggested that, even if ESN’s complaint were subjected to a tougher standard, the company had still alleged enough facts for its case to be able to move forward.

Today’s oral argument focused almost entirely on the text, history and operation of Section 1981, with relatively little discussion of the broader implications of the court’s ruling. But the business community and civil rights groups are watching this case closely. Estrada touched briefly on the potential consequences of a ruling in favor of ESN, telling the justices that if the 9th Circuit’s ruling is affirmed, it will be “vastly easier” for employees to obtain damages under Section 1981 than under the “carefully tailored regime” that Congress created in Title VII of the Civil Rights Act for employment discrimination cases. For their part, ESN and its supporters told the justices in their briefs that a ruling for Comcast would “shut the doors to the federal courts” for many African American businesses.

A decision in the case is expected by summer

 

[OfTheCross]

 

[Secure Da Bag]

 

[Secure Da Bag]

Fire and Gems dropped during interview.

• Byron Allen is looking to take his case through litigation and have through discovery (legal term) shows that accusations of: low ratings, low quality, and lack of racial animus are false.
• Comcast and Charter refusing economic inclusion for black-owned media companies.
  
• Comcast spend $11B a year licensing cable networks. They either lowball on license fees or tell networks "no license revenues for you eat off your revenue from commercials".
• Revolt in 2018 laid off 1/3 of staff because of lack of subscription (licensing) fees. Comcast only has Revolt in half its subscriber area. Comcast refuses to air Revolt in places like Philadelphia.
• Byron Allen claims that 1866 Civil Rights Law is a substitute for 40 acres and a mule.
• Byron Allen claims that during the MOU crafting it was said that the MOU was written in a way that ensure Revolt and Aspire (Magic Johnson's media company) would fail.
• Magic and Diddy were chosen because their public lifestyles/appearance/brands (all success, no failures) would prevent them from complaining when they failed.
  
• TVOne had to give Comcast a sizable share of its equity to get the network off the ground.
  
• Comcast owned 40% of TVOne and TVOne had to go into considerable debt to buyout Comcast's share.
  
• For TVOne to get on Dish Network, Dish wanted a share of equity in TVOne. But the owner of TVOne (Liggins) gave the share to DirectTV. So Dish won't carry TVOne.
• Byron Allen claims that Comcast is predatory toward black-owned media.
• CEO of Comcast sits on the board of the National Urban League. Comcast gives National Urban League $1M a year.
• Byron Allen forces Roland Martin to begrudgingly admit that Comcast forced the National Urban League to come out against Net Neutrality.
• Byron Allen sued Charter when Charter used Al Sharpton as a tool to sell the MOU to the public/FCC. Byron Allen says (correctly) Al Sharpton doesn't speak for all black people.
• Comcast caught deploying bittorrents to slow down traffic. FCC hit Comcast with $20M fine. Comcast challenged it in court.
  
• One of the FCC commissioners who voted for Comcast merger ended up being hired as a Comcast executive after her term was up.
• Bloomberg sued Comcast for trying to put his financial channel on a channel that no one would probably see. So it wouldn't compete with the financial channel Comcast just bought.
• Byron Allen has shows 6 judges, 5 hours a day, Monday - Friday.
  
• TheGrio used to be owned by NBC and now is owned Byron Allen. The Weather Channel is owned by Byron. He's gonna open up some banks and real estate too.
• Byron Allen says he spoke to Pres. Obama about auditing banks to make sure they are lending to black entrepreneurs and have some black people managing the gov't pension fund (over $1T). Pres. Obama allegedly has done neither.
• China allegedly has 200M kids in college. That's 2/3rd of the population of the U.S.
  
• Byron Allen says that White America must fund education and allow economic inclusion to all for America to compete globally. White America isn't enough. Exclusion is causing America to sink.
• Charter's Board of Directors is 11 white men. No diversity.
• Byron Allen shouts out Derrick Hamilton (ceo of NAACP) Harris, Booker, Rush, 8 members of CBC, and Dr. Bernice King. But not #ADOS who raised hell to get these people to sign up in the 1st place.
• Roland Martins notes, "if you don't have any money, then you can't control your politics". Very similar to Dr. Claude Anderson's Powernomics.
  
• Byron Allen says that under Obama, white unemployment dropped and black unemployment rose and black homeownership hit a 25 year low.

 

[Red Shield]

Fire and Gems dropped during interview.

• Byron Allen is looking to take his case through litigation and have through discovery (legal term) shows that accusations of: low ratings, low quality, and lack of racial animus are false.
• Comcast and Charter refusing economic inclusion for black-owned media companies.
  
• Comcast spend $11B a year licensing cable networks. They either lowball on license fees or tell networks "no license revenues for you eat off your revenue from commercials".
• Revolt in 2018 laid off 1/3 of staff because of lack of subscription (licensing) fees. Comcast only has Revolt in half its subscriber area. Comcast refuses to air Revolt in places like Philadelphia.
• Byron Allen claims that 1866 Civil Rights Law is a substitute for 40 acres and a mule.
• Byron Allen claims that during the MOU crafting it was said that the MOU was written in a way that ensure Revolt and Aspire (Magic Johnson's media company) would fail.
• Magic and Diddy were chosen because their public lifestyles/appearance/brands (all success, no failures) would prevent them from complaining when they failed.
  
• TVOne had to give Comcast a sizable share of its equity to get the network off the ground.
  
• Comcast owned 40% of TVOne and TVOne had to go into considerable debt to buyout Comcast's share.
  
• For TVOne to get on Dish Network, Dish wanted a share of equity in TVOne. But the owner of TVOne (Liggins) gave the share to DirectTV. So Dish won't carry TVOne.
• Byron Allen claims that Comcast is predatory toward black-owned media.
• CEO of Comcast sits on the board of the National Urban League. Comcast gives National Urban League $1M a year.
• Byron Allen forces Roland Martin to begrudgingly admit that Comcast forced the National Urban League to come out against Net Neutrality.
• Byron Allen sued Charter when Charter used Al Sharpton as a tool to sell the MOU to the public/FCC. Byron Allen says (correctly) Al Sharpton doesn't speak for all black people.
• Comcast caught deploying bittorrents to slow down traffic. FCC hit Comcast with $20M fine. Comcast challenged it in court.
  
• One of the FCC commissioners who voted for Comcast merger ended up being hired as a Comcast executive after her term was up.
• Bloomberg sued Comcast for trying to put his financial channel on a channel that no one would probably see. So it wouldn't compete with the financial channel Comcast just bought.
• Byron Allen has shows 6 judges, 5 hours a day, Monday - Friday.
  
• TheGrio used to be owned by NBC and now is owned Byron Allen. The Weather Channel is owned by Byron. He's gonna open up some banks and real estate too.
• Byron Allen says he spoke to Pres. Obama about auditing banks to make sure they are lending to black entrepreneurs and have some black people managing the gov't pension fund (over $1T). Pres. Obama allegedly has done neither.
• China allegedly has 200M kids in college. That's 2/3rd of the population of the U.S.
  
• Byron Allen says that White America must fund education and allow economic inclusion to all for America to compete globally. White America isn't enough. Exclusion is causing America to sink.
• Charter's Board of Directors is 11 white men. No diversity.
• Byron Allen shouts out Derrick Hamilton (ceo of NAACP) Harris, Booker, Rush, 8 members of CBC, and Dr. Bernice King. But not #ADOS who raised hell to get these people to sign up in the 1st place.
• Roland Martins notes, "if you don't have any money, then you can't control your politics". Very similar to Dr. Claude Anderson's Powernomics.
  
• Byron Allen says that under Obama, white unemployment dropped and black unemployment rose and black homeownership hit a 25 year low.

far too late for that

 

[get these nets]

Ggood that Black media exists, so that Byron can present his stance /case to the public in his own words. Love or hate Roland Martin, he's one of the few remaining Black(owned/operated) news platforms out there.

 

[Secure Da Bag]

Need to look for some updates on how this is going in the lower courts.