Comcast v. National Association

Prompt: Legal Brief, Comcast v. National Association of African American Owned Media

Comcast v. National Association of African-American-Owned Media

Procedural History: The case was first filed with the Central District of California District Court in February of 2015. The case was first argued in the United States Court of Appeals for the Ninth Circuit On November 13, 2018. The 9th Circuit then reversed the Central District of California’s judgment. The 9th Circuit denied a rehearing en banc on February 4, 2019. On March 8, 2019; Comcast filed a petition with the U.S Supreme Court. The U.S Supreme Court agreed to hear the case on June 10, 2019. The parties made their oral arguments on November 13, 2019. On March 23, 2020, the U.S Supreme Court vacated and remanded the 9th Circuit’s ruling. 

Facts: Byron Allen, actor, comedian and entrepreneur founded Entertainment Studios in 1993. He created several networks – Justice Central.TV, Comedy.TV, ES.tv, Pets.TV, Recipe.TV, MyDestination.TV and Cars.TV. Collectively, they represent the National Association of African American Media. ESN has secured contracts with distributors including Verizon FIOS, AT&T U-verse, and DirecTV. Allen attempted to secure a contract with the cable conglomerate Comcast for his lifestyle channels since 2008, however, they have declined. ESN alleged that the decision not to carry the network was based on racial discrimination, with ESN being 100% minority-owned and Comcast only paying $3million of the total $11 billion carriage fees to 100% minority-owned networks. Comcast led ESN to believe for more than six years that ESN channels were “good enough” and on a “shortlist” for consideration but did not follow through with a contract. A Comcast executive was quoted as saying “We’re not trying to create any more Bob Johnsons,” the founder of Black Entertainment Television, who is also African American. ESN demonstrated success with their Justice Central programming which outperformed both Time Warner and Comcast’s platforms with double-to-triple-digit ratings and despite huge rating growth, Comcast refuses to enter a contract with ESN and any 100% African-American-owned media to date. Prior to the acquisition of Time Warner, Comcast also prevented ESN from a launching opportunity after advanced negotiations with Time Warner executive Melinda Witmer. 

ESN and NAAAOM filed charges against Comcast alleging that the refusal to enter a contract, carry and distribute the studios programming was racially motivated and violated 42 U.S.C. §1981 of the Civil Rights Act of 1866. The United States District Court of Central District of California originally dismissed the claims by ESN at the pleading stage, finding failure from the plaintiff to state a plausible claim. The U.S. Court of Appeal for the Ninth Circuit reversed the district court’s decision and then tried the case based on the results of a similar case Allen had against Charter Communications, in which they found "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, which violates § 1981." (ENTER SUPREME COURT REFERENCE) This standard was applied and the Ninth Circuit concluded that ESN stated a valid section 1981 claim based on Comcast’s contractual agreement with 80 less-popular, White-owned channels around the same time ESN was denied. 

Issues:

A.) How does a plaintiff prove racial discrimination in the process of entering employment and contractual agreement? 

B.) Does a racial discrimination claimant have to show but-for causation or only that race is a motivating factor?

Holding: A plaintiff who sues for racial discrimination in contracting under 42 U.S.C §1981 bears the burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit. 

Court Rationale: The court dismissed the case at Comcast’s request because ESN failed to prove but-for causation. The decision was based on the “prerequisite to a tort suit” of the 1866 Civil Rights Act, in what was described as “tort standard” that must ultimately be proved in both the pleading and the proving stage in order to recover. The court used the specific language of the statute in section 1981, with Justice Gorsuch saying, “This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action.” (Comcast Corp. v. National Assn. Of African American-Owned Media, 2020)

Analysis: While I understand the court’s reasoning, I do not agree with their decision. This decision will negatively impact citizens to bring forth racial discrimination cases in the future as the decision of the court now leaves the plaintiff with the burden of proving discrimination with but-for causation in the pleading stage prior to the discovery phase. The challenging question at issue, in this case, was, what is the standard to filing a racial discrimination claim, and do claimants have to prove a but-for cause of the allegations in the initial claim. For claimants, this can be difficult to prove as they have little knowledge of all of the factors that an organization or employer makes the decision on. A much fairer system would allow the motivating factor of racial discrimination to be considered so that the defendant is then left with the burden of proving that their decision was not based on racial discrimination. This can only happen in the discovery phase if a claim is allowed to get to that stage. In this case, Allen and the ESN were not allowed to move into the discovery phase. I understand the court’s decision was based on the language in the statute which is how the logical rationale is supposed to occur when judging cases, however their decision ignores discriminatory factors of modern day practices, which were not a case when the statute was created with more apparent violations of injustice. One of the errors in this claim was the elements used to fight the case. ESN used §1981 for the claim of racial discrimination. Comparing the 1981 section to Title VII, 1981 is a broad general bar on discrimination that burdens the plaintiff to prove the but-for causation, while Title VII prohibits specific unlawful employment practices. Once a claim has been filed, the elements of the allegations must remain constant throughout the lawsuit. ESN was given multiple attempts to supply additional facts to support the allegations but failed to develop more. ESN was relying heavily on getting the court to acknowledge that discrimination was one of the motivating factors that led to Comcast’s decision so they could get into the discovery phase of the case and Comcast would have to prove that their decision was based on other factors. In that position, Comcast would have had a challenge proving why Allen was treated disparately. In 1973, in McDonnell Douglas Corp v. Green, the Supreme Court “ruled that a person can make a case for unlawful discrimination in hiring practices if all of the following apply: the person must be a member of a group that is protected by Title VII (for example, that they belong to a racial minority); the person applied and was qualified for the job; the person was rejected for the position; the employer continued to look for applicants with similar qualifications, or the position was given to a person who wasn't a member of the protected group.” (Fenner, n.d.) This would have allowed attorneys open access to Comcast’s files to analyze patterns and reasons for the contractual employment with other studios and not with ESN. ESN made plausible allegations against Comcast and their decision not to contract with Allen which goes against the law. The Civil Rights Act of 1866 was the first civil rights law adopted to enforce the citizenship of emancipated African Americans, declaring that “all persons born in the United States to be citizens without distinction of race or color, or previous conditions of slavery or involuntary servitude.” (Noah, 2019) The provision, now coded as 42 U.S.C. §1981, prohibits racial discrimination in employment, banking, consumer and business transactions, and other economic relationships involving contracts by mandating that all citizens have the same right “as is enjoyed by white citizens.” (Noah, 2019) Title 42 provides, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” (Ballotpedia, n.d.)

This decision by the court now cripples the protection of that law by preventing many claims to be heard by a judge. The EEOC defines and protects Title VII in “not only intentional discrimination, but also practices that appear to be neutral, but that limit employment opportunities for some racial groups and are not based on business need.” (U.S. Equal Employment Opportunity Commission, 2006) The court has now made it more difficult to rectify disparate hiring practices as was the case with McDonnell Douglas Corp v. Green, Griggs v. Duke Power, and now Comcast v. NAAAOM. As Justice Ruth Bader Ginsburg included in her opinion concurrence, the strict but-for causation standard in this manner disregards basic civil rights in which the law was designed to break down discrimination, and allows Comcast to use a narrow interpretation of the section statute to their advantage for disparate discriminatory contractual practices – ultimately making 1981 an empty promise without equal opportunity to present, receive or negotiate terms. This was a major step back for civil rights in the United States, placing a higher wall of discriminatory barriers in practical freedom.