In a major setback to entertainment mogul Byron Allen’s discrimination suit against Comcast, America’s highest court tossed out a lower court’s decision, essentially ruling that Allen must prove racism was the media conglomerate’s only motivating factor in rejecting a partnership with Allen’s black-owned company.
In a 20-page, 9-0 decision, the United States Supreme Court tossed out a 2019 ruling from California’s 9th Circuit Court of Appeals that allowed Allen to proceed with a $20 billion lawsuit against Comcast Corp. As CEO and owner of Entertainment Studios Network (ESN), Allen filed suit against Comcast Corp in 2015, claiming that the cable giant colluded with Rev. Al Sharpton, Time Warner Cable and various African-American advocacy groups in its refusal to carry ESN’s seven lifestyle cable channels, in part because they’re black-owned. Comcast denied the charges, explaining that their decision to not run his seven lifestyle cable channels was strictly business-based: there was simply not enough audience demand for the ESN channels.
Allen’s suit was initially dismissed before California’s 9th Circuit Court of appeals held that the Civil Rights Act of 1866 gave African Americans the “full and equal benefit of all laws,” including the “same right to make and enforce contracts as whites.” The three-judge panel ruled that Allen “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract.” In other words, race didn’t have to be the sole factor in filing a discrimination complaint.
The Supreme Court disagrees.
The court unanimously determined that Allen, whom Reuters dismissively referred to as a “comedian” (which is like calling Oprah Winfrey a “weather girl”), must “ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” To do that, the judges established that ESN “first must show that he was deprived of the protected right and then establish causation,” much to the dismay of black legal experts.
At issue is the “but for” clause in Section 1981 of the Civil Rights Act of 1866. A long-held Conservative legal position argues that to prove discrimination, a plaintiff must prove they would have succeeded but for racism. Even though Allen filed a brief alleging that “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 BET’s founder—that wasn’t racist enough for the Supreme Court.
On Monday, all nine judges basically agreed that, before a court even hears ESN’s case, Allen must prove that race wasn’t just one of many motivating factors in Comcast’s decision, it was the only factor. Then, according to the court, he is tasked with the impossible burden of proving why they were racist. Apparently, Comcast has to burn a cross on the lawn of ESN’s corporate headquarters and provide a signed, notarized statement explaining that the official policy of Comcast is: “We don’t do business with niggers.” Perhaps this is why Clarence Thomas and other white people don’t believe white supremacy exists. Because, according to America’s highest court, unless someone is wearing a shirt that says “I hate black people,” then they could embroider a Nazi flag on a MAGA hat and wear it with a Confederate uniform and they’re not necessarily racist.
“To prevail, a plaintiff must initially plead and ultimately prove that, but for race [emphasis added], it would not have suffered the loss of a legally protected right,” wrote Justice Neil Gorsuch.
Further explaining the decision, Justice Ruth Bader Ginsberg added: “The Court holds today that Entertainment Studios must plead and prove that race was the but-for cause of its injury—in other words, that Comcast would have acted differently if Entertainment Studios were not African American owned,” added Justice Ginsberg.
The Supreme Court’s decision doesn’t end ESN’s case. The lawsuit will be sent back to the 9th U.S. Circuit Court of Appeals to determine whether Allen has enough evidence to fulfill the Supreme Court’s new legal standard for racism.