Will the Supreme Court Take Up Racial Discrimination in Cable Television?

Byron Allen - Photographed by Michele Thomas - H 2017
Photographed by Michele Thomas

On Monday, the Ninth Circuit Court of Appeals refused to rehear a pair of cases — a $10 billion claim against Charter, a $20 billion claim against Comcast — alleging discrimination against African-American-owned media companies.

Byron Allen is the driver of both suits, claiming that the cable operators are violating the Civil Rights Act of 1866, prohibiting racial discrimination in contracting, by refusing to make any good offer to carry networks owned by his Entertainment Studios Network. Allen's company also sued AT&T before arriving at a settlement whereby DirecTV picked up Comedy.TV and Justice Central.TV.

After Allen got a federal judge to give him the green light against Charter, the Ninth Circuit both affirmed the decision as well as revived his case against Comcast.

At the time, the appellate judges concluded that “[e]ven if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision."

This led Charter and Comcast to petitions for rehearing en banc before a fuller panel of Ninth Circuit judges. Such petitions are rarely granted but they are often precursors to requested review at the U.S. Supreme Court. There's every reason to expect the high court to now see a cert petition over contracting in the cable television business.

Among the amicus briefs put to the Ninth Circuit was one from the U.S. Chamber of Commerce. The business community attacks the proposition that plaintiffs alleging discrimination can survive dismissal with "mixed-motive causation," meaning there could be good reasons for denying Allen's networks a place on the cable dial, but if bias is even part of the equation, Allen gets to move forward on his claims.

The Chamber of Commerce asserts that the opinion in the Charter case flouts precedent and "threaten[s] to disrupt employment discrimination law," and may impose significant costs and burdens on companies defending claims.

"Employment decisions are inherently subjective in some measure," states the Chamber brief. "So it will be relatively easy for a plaintiff to allege that discrimination was a motivating factor. Then the defendant effectively has the burden of proving a negative — that discrimination was not a factor. Proving a negative is always difficult and it will be especially difficult when allegations of mixed motives are swirling about."

Such argument doesn't sway the Ninth Circuit.

If the case does go to the high court, there will also likely be attention on the First Amendment and past cases including one where parade organizers in Boston couldn't be compelled to include the participation of a gay group.

Contrary to Charter's arguments, a panel of Ninth Circuit judges held that while cable operators engage in expressive conduct when they select which networks to carry, that does not automatically require the application of strict scrutiny.

"Section 1981 [of the Civil Rights Act of 1866] does not seek to regulate the content of Charter’s conduct, but only the manner in which it reaches its editorial decisions — which is to say, free of discriminatory intent," wrote Circuit Judge Milan D. Smith, Jr., also noting that the "Supreme Court has regularly emphasized that the prevention of racial discrimination is a compelling government interest."