Supreme Court Vacates Ruling Allowing Bias Case Against Comcast

Byron Allen's suit against the cable giant now heads back to the Ninth Circuit. He must show Comcast's refusal to license his networks wouldn't have happened but for racism.
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The Supreme Court is tightening the standard for discrimination lawsuits. In an opinion Monday, the nine justices unanimously decided that plaintiffs in bias suits must show at the pleading stage that racism is the but-for cause of injuries. Although the decision doesn't put an end to a multibillion dollar case against Comcast, the ruling vacates a prior ruling allowing Byron Allen's discrimination suit to move forward at the trial court.

Allen brought suit over Comcast's refusal to license his small channels devoted to topics including criminal justice, cars and pets. He alleges that Comcast's refusal is explained by racial animus and amounts to a violation of the Civil Rights Act of 1866. That would be the nation's oldest civil rights statute, put in place by Congress in the aftermath of the Civil War to vindicate the rights of former slaves. Among the provisions is one prohibiting discrimination when making and enforcing contracts, and as later interpreted by courts, this provision also gives citizens the ability to sue to enforce the right to contract.

The key legal controversy is what Allen must show at the outset of his lawsuit in order to get past a motion to dismiss into the discovery phase of the case.

Allen's companies contend that a plaintiff should be able to overcome early dismissal if they can allege facts plausibly showing that race was a “motivating factor” in a defendant’s decision. But, as argued by Comcast's lawyers during an oral hearing, not immediately dismissing substandard allegations of racial bias would make it "vastly easier to recover damages under the [Civil Rights Act of 1866] than under any ... federal antidiscrimination law," and that the Supreme Court shouldn't "open the doors to discovery based on conclusory allegations or formulaic elements of the offense dressed up as factual assertions."

On Monday, led by Supreme Court Justice Neil Gorsuch, the high court largely agrees with Comcast's position and deals a blow to African American lawmakers, business leaders and others who expressed concern that the high court was headed toward an outcome in this dispute that could undercut enforcement of racial equality.

While the Civil Rights Act of 1966 "does not expressly discuss causation, it is suggestive," writes Gorsuch. "The guarantee that each person is entitled to the 'same right ... as is enjoyed by white citizens' directs our attention to the counterfactual — what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation."

Here's the full opinion.

The new opinion vacates the ruling from the district court allowing Allen's case to move forward. The controversy now moves back to the Ninth Circuit, which will consider whether Allen has met the newly articulated "but for" standard with an amended complaint that includes allegations that African Americans have a separate "Jim Crow" track when it comes to channel licensing. 

Comcast is hopeful that the Supreme Court opinion eventually paves the road toward dismissal.

A spokesperson said, "We are pleased the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims. The well-established framework that has protected civil rights for decades continues. The nation’s civil rights laws have not changed with this ruling; they remain the same as before the case was filed. We now hope that on remand the 9th Circuit will agree that the District Court properly applied that standard in dismissing Mr. Allen’s case three separate times for failing to state any claim. We are proud of our record on diversity and will not rest on this record. We will continue to look for ways to add even more innovative and diverse programming that appeals to our diverse viewership and continue our diversity and inclusion efforts across the company.”

Allen was understandably upset by the outcome.

"Unfortunately, the Supreme Court has rendered a ruling that is harmful to the civil rights of millions of Americans," he said. "This is a very bad day for our country. We will continue our fight by going to Congress and the presidential candidates to revise the statute to overcome this decision by the United States Supreme Court, which significantly diminishes our civil rights."