SCOTUS Challenges Comcast But-For Discrimination Arguments on Programming

Shouldn't showing racial animus and a reasonable inference race was a motivating factor in a contractual decision be sufficient to state a claim, with but-for causation issues be determined at trial, Justice Sonia Sotomayor asked Comcast outside counsel Miguel Estrada of Gibson Dunn. Chief Justice John Roberts said if racial animus comes up in contractual talks, while it might be hard to prove but-for causation -- that a defendant wouldn't have denied a contract but for the plaintiff's race -- it's also hard to ignore a reasonable allegation animus played a role in the eventual contractual decision.

Even if but-for is the ultimate standard ES/NAAAOM must meet to prove their complaint Comcast discriminated in not carrying ES channels (see 1606100017), this appeal is about the complaint and the 9th U.S. Circuit Court of Appeals reversing a lower court and allowing the Comcast complaint to go forward (see 1811190023), Justice Elena Kagan said. She questioned Estrada about what needs to be alleged at the offset. Estrada said the respondents acknowledge someone might have but-for burden, but "they'd like it to be us." Similar ES/NAAAOM litigation against Charter Communications is pending.

ES/NAAAAOM has to argue facts, not conclusions, Estrada said. But the 9th Circuit didn't say it didn't, Sotomayor responded. Estrada twice said ES/NAAAOM arguments hinged in part on being carried by AT&T's DirecTV, but that argument arose only in the second amended complaint because ES had been suing AT&T before then.

Section 1981 is clear in its goal of eliminating discrimination, so in executing a contract how does one square that with a but-for standard, Sotomayor asked Assistant to the Solicitor General Morgan Ratner, saying if one party in contract talks has more burdens than others, "why is that not actionable?" "Who cares" whether it's a but-for causation or a motivating favor when comes to a complaint, Justice Stephen Breyer asked. He said figuring out that level of proof comes "later down the line." Ratner said to survive, a complaint must make a case that race made a difference in the ultimate decision. Justices asked her more than once about the government's stance on the particulars of Comcast. She said it had no position on that.

Asked by Kagan when but-for causation issues come into play, ES/NAAAOM's Chemerinsky said it's later in the proceeding. Asked by Justice Neil Gorsuch, "Wouldn't it be odd" for the court to have different standards for different stages of the same case, Chemerinsky said numerous SCOTUS cases have established different such standards. He said ES/NAAAOM alleges but-for causation in its complaint, though the law doesn't require that in its pleading. He agreed with Justice Brett Kavanaugh it's rare for cases like ES/NAAAOM to be tossed out at the pleading stage.

Seemingly skeptical of ES/NAAAOM claims that Comcast's part of a racist conspiracy that also included the NAACP and then-President Barack Obama's administration, Justice Samuel Alito asked whether U.S. District Court might have been affected by that. Chemerinsky said it shouldn't have been as that line of assertion wasn't in the second amended complaint, just in prior ones. Estrada said the second amended also makes racist conspiracy assertions.

Clarence Thomas was the only justice present not to speak or raise questions, in keeping with his usual practice. Justice Ruth Bader Ginsburg was absent due to illness and will consider the case based on filings and the transcript, Roberts said.

Protesters

Dozens chanted "black power!" and "stop Comcast!" on the courthouse steps. The protest was organized by civil rights group The Black Institute.

TBI protest organizer Hawk Newsome told us the Starz move, like Comcast's legal fight with ES/NAAAOM, reflects the cable operator's "lack of respect for black viewership." He said the cabler had other routes than pursue to SCOTUS a case that could harm civil rights legal protections. TBI held simultaneous protests in Chicago and Philadelphia. Newsome said the Washington protest had some hired protesters, but the vast majority was organic, many bused from Baltimore and New York. Asked about what role ES had in the Starz protest, Starz and the Goodfriend Group, representing ES, didn't comment.

Surrounded by TBI protesters outside SCOTUS, ES owner/founder Byron Allen said the black community "is still on the back of the bus [but] today ... they listened to us." He said the $30-plus million Comcast spends on CEO compensation annually exceeds what it spends on black-owned media.

"There [are] no dots to connect" between the Starz and ES situations, a Comcast spokesperson told us. ES involves Comcast not picking up a handful of "lightly watched channels" and Starz is on Comcast removing Starz from its Premier tier but still offering it a la carte, the way it's available via numerous over the top services, the representative said.

A Comcast statement said the ES/NAAAOM case "centers on a narrow, technical point of law that will not in any way lessen the nation’s civil rights laws. Comcast believes that the civil rights laws are an essential tool for protecting the rights of African-Americans and other diverse communities -- and this case will not change those protections." It said its advocacy was to argue that Section 1981 in this case "be interpreted the same way it has been interpreted for decades across the country." It said it's "optimistic the Court will reverse the incorrect 9th Circuit decision and, in light of the trial court’s dismissal three separate times of these discrimination claims, bring this case to an end. Comcast has a strong civil rights and diversity record and an outstanding history of supporting and fostering diverse programming from African-American owned channels.”