Comcast Is Trying to Undermine a Historic Civil-Rights Law

Comcast is appealing a decision made by the Ninth Circuit to allow a $20-billion lawsuit, brought by Entertainment Studios Networks, to move forward.

Media mogul and comedian Byron Allen owns Entertainment Studios Networks; he sued Comcast for refusing to carry any of the cable networks his company owns. He alleged that Comcast’s refusal was racially motivated and sued under 42 U.S.C. § 1981 — the Civil Rights Act of 1866 — which states that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”  Allen’s company owns eight cable networks that syndicate more than 40 TV programs.

Meanwhile, Comcast is one of the nation’s most powerful media companies and the largest pay-TV company in the country. Among its many properties are NBC, news networks such as MSNBC, local-TV stations and a movie studio.

But Comcast is seeking to gut Section 1981 of the Civil Rights Act of 1866 — passed during Reconstruction —  that allows plaintiffs to sue if they suspect racial discrimination played any role in a contracting decision. Comcast is arguing that race has to be the sole factor in determining racial discrimination rather than just one of the factors. And Comcast is receiving support from the Trump administration, which intervened in the case in support of the company’s legal argument.

Leaders in the civil-rights community respond

“The stakes are high in this case,” said Sherrilyn Ifill, president of the NAACP Legal Defense Fund. “An adverse ruling by the Supreme Court could make our oldest civil rights statute virtually impotent in all but a narrow sliver of cases.”

The NAACP Legal Defense Fund filed an amicus brief to oppose Comcast’s dangerous legal arguments. Ten civil-rights groups, including the ACLU, LatinoJustice PRLDEF, Mexican American Legal Defense and Educational Fund and the National Women’s Law Center, joined the brief.

“Because of a dispute with a Black businessman, the company has urged the Supreme Court to roll back the crucial protections of one of the nation’s oldest civil rights laws, Section 1981 of the Civil Rights Act of 1866,” said the NAACP in a press statement. “Throughout the NAACP’s history, standard-bearers of justice like Thurgood Marshall have harnessed the power of Section 1981 to fight various forms of discrimination. Yet now, in a situation that has become all too familiar during this era, an upcoming Supreme Court decision has the potential to reject these lessons of history by rolling back the clock on basic civil rights.”

In its press statement, the NAACP Legal Defense Fund noted the historical importance of this law.

“A year after the Civil War, and prior to the passage of the Fourteenth and Fifteenth Amendments, Congress sought to create a law that would allow newly freed slaves ‘full and equal benefit of the laws … as enjoyed by White citizens.’ The Civil Rights Act of 1866 had a clear purpose: to place African Americans on equal footing with White Americans and to remove the vestiges of slavery by outlawing conduct — by the state and private parties — that reflects racial discrimination in banking, consumer business transactions, and in making or performing contracts.

“To that end, 42 USC Section 1981, the codification of the Civil Rights Act of 1866, has been one of the most powerful statutes in the civil rights arsenal.”

NAACP LDF’s Ifill said the “arguments advanced by Comcast could shield a defendant from liability by simply pointing to a race-neutral reason to justify the defendant’s discriminatory decision. That is a dangerous argument ...

“Defendants are most often in control of the kind of information that is needed to prove discrimination under any standard. Courts should not be permitted to dismiss plaintiffs’ claims of discrimination under Section 1981 by placing an insurmountable pleading burden on victims of discrimination.”