Comcast v. NAAAOM - The Thurgood Marshall Institute at LDF

Argument Date: November 13, 2019

Issue(s) in the Case:

During the Reconstruction Era, Congress passed a number of laws to enforce the personhood and citizenship of emancipated African Americans. One of these laws was the Civil Rights Act of 1866. Section 1981 of that Act (“Section 1981”) prohibits racial discrimination in the making and enforcement of contracts and provides for the security of persons and property “as is enjoyed by white citizens.”^[63]

The question in this case is whether a claim of race discrimination under Section 1981 fails in the absence of but-for causation, as opposed to a showing that the discrimination was a motivating factor in the challenged action.

Background:

In this case, African American actor and entrepreneur Byron Allen repeatedly attempted to secure a contract for his company Entertainment Studios Networks, Inc. (“ESN”) with Comcast.^[64] Mr. Allen is the sole owner of ESN, which has seven individual lifestyle channels.^[65]The ESN channels are carried by many major distributors, including Verizon FIOS, AT&T U-verse, and DirecTV.^[66] Since 2008, ESN has attempted repeatedly to secure a contract with Comcast, but Comcast has consistently declined.^[67]Despite assuring ESN that its channels were “good enough” and on the “short list” for consideration, Comcast opted to carry more than 80 less popular, White-owned channels.^[68]One Comcast executive candidly told ESN why it refused to contract: “We’re not trying to create any more Bob Johnsons,” referring to the African American founder of Black Entertainment Television.^[69]

ESN and the National Association of African American-Owned Media sued Comcast, alleging that its decision not to carry ESN’s channels violates Section 1981.^[70]The district court dismissed the case at the pleading stage, finding that plaintiffs’ allegations did not sufficiently exclude an alternative explanation for Comcast’s decision based on legitimate business reasons.^[71]The Ninth Circuit Court of Appeals reversed the district court’s dismissal of the case, rejecting Comcast’s argument that ESN was required to demonstrate that Comcast would not have refused to carry ESN if not for racial discrimination.^[72]The Ninth Circuit held that ESN only needed to allege that race was a “motivating factor” in Comcast’s refusal to contract.^[73]

Key Issues:

A finding that Section 1981 requires “but-for” causation would unjustly impose a higher burden on discrimination victims, in conflict with basic principles of civil rights law and general tort law.

Importance as a Matter of Civil Rights:

LDF filed an amicus brief in support of ESN and the National Association of African American-Owned Media, maintaining that Section 1981 does not require a plaintiff to prove “but-for” causation. LDF’s brief makes clear that, even if the Court disagrees, the judgment should still be affirmed on the independent ground that issues of but-for causation can rarely be resolved on the pleadings. There can be multiple but-for causes of a defendant’s conduct, and deciding among potential but-for causes requires discovery and a trial.

[63] 42 U.S.C. § 1981.

[64] Opposition to Petition for a Writ of Certiorari at 4, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media and Entertainment Studios Networks, Inc., 139 S. Ct. 2693 (Apr. 10, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/96050/20190410161850192_Chemerinsky%20Brief%20in%20Opposition%20to%20Petition%20for%20Writ%20of%20Certiorari.pdf.

[65] Id.

[66] Id. at 5.

[67] Id.

[68] Id. at 5-6.

[69] Id. at 6.

[70] Id. at 7.

[71] Petition for a Writ of Certiorari at 9, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media and Entertainment Studios Networks, Inc., 139 S. Ct. 2683 (Mar. 8, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/91371/20190308153623647_Comcast%20-%20NAAAOM%20Petition%20TO%20PRINTER.pdf.

[72] Opposition to Petition, Comcast, supra note 64, at 9.

[73] Id. at 10.