Comcast has won a US Supreme Court case against Byron Allen’s Entertainment Studios Networks (ESN), dealing a major blow to Allen’s attempt to prove that Comcast’s refusal to carry ESN channels was motivated by racial bias.
The key question taken up by the court was whether a claim of race discrimination under the 42 U.S.C. § 1981 statute can proceed without a “but-for causation.” As the Legal Information Institute explains, a “but-for test” asks “but for the existence of X, would Y have occurred?”
The US Court of Appeals for the 9th Circuit ruled in 2018 that the case could proceed because ESN “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract, and not necessarily the but-for cause of that decision.” The Supreme Court ruling issued yesterday reversed that decision, saying that a “plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit.”
Because of yesterday’s unanimous Supreme Court ruling, ESN would have to prove that racism was a determining (“but-for”) factor in Comcast’s decision rather than just one motivating factor.
ESN and the National Association of African American Owned Media were seeking a $20 billion judgment because of Comcast’s refusal to pay for carriage of ESN networks, namely Cars.TV, Comedy.TV, ES.TV, JusticeCentral.TV, MyDestination.TV, Pets.TV, Recipe.TV, and The Weather Channel. Comcast has said it didn’t pay for ESN channels because of lack of customer demand for the company’s programming and the bandwidth costs of carrying the channels. Comedian and media mogul Byron Allen founded ESN in 1993 and is the company’s chairman and CEO.
“Few legal principles are better established than the rule requiring a plaintiff to establish causation,” Justice Neil Gorsuch wrote in the court’s decision against ESN. “In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred ‘but for’ the defendant’s unlawful conduct. The plaintiffs before us suggest that 42 U.S.C. §1981 departs from this traditional arrangement. But looking to this particular statute’s text and history, we see no evidence of an exception.”
The civil rights law in question says that “All persons… shall have the same right in every State and Territory to make and enforce contracts… as is enjoyed by white citizens.” It’s part of the Civil Rights Act of 1866.
ESN made conflicting arguments
The Supreme Court found in previous cases that the “ancient and simple ‘but for’ common law causation test… supplies the ‘default’ or ‘background’ rule against which Congress is normally presumed to have legislated when creating its own new causes of action,” Gorsuch wrote.
The Supreme Court said that ESN did not “seriously dispute these general principles” and made conflicting arguments about which standard should apply at different stages of the legal process. The Supreme Court decision said:
At times, ESN seems to argue that a §1981 plaintiff only bears the burden of showing that race was a “motivating factor” in the defendant’s challenged decision, not a but-for cause of its injury. At others, ESN appears to concede that a §1981 plaintiff does have to prove but-for causation at trial, but contends the rules should be different at the pleading stage. According to this version of ESN’s argument, a plaintiff should be able to overcome at least a motion to dismiss if it can allege facts plausibly showing that race was a “motivating factor” in the defendant’s decision. ESN admits this arrangement would allow some claims to proceed past the pleading stage that are destined to fail later as a matter of law. Still, the company insists, that is what the statute demands.
In ruling against ESN, Supreme Court justices acknowledged that plaintiffs have to show different levels of evidence “as a lawsuit progresses from filing to judgment.” But the burden to plausibly allege but-for causation “remains constant” throughout the legal process. As such, the Supreme Court vacated the 9th-Circuit appeals court decision that went in Allen’s favor and remanded the case back to that court.
Comcast: Ruling doesn’t lessen civil rights law
Comcast welcomed the decision in a statement yesterday, saying, “We are pleased the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims.”
“We now hope that on remand the 9th Circuit will agree that the District Court properly applied the law in dismissing Mr. Allen’s case three separate times for failing to state any claim,” Comcast also said.
While Comcast said the ruling “centers on a narrow, technical point of law that will not in any way lessen the nation’s civil rights laws,” Allen argued that the ruling against him is a blow to civil rights.
“Unfortunately, the Supreme Court has rendered a ruling that is harmful to the civil rights of millions of Americans,” Allen said in a statement. “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.” The Supreme Court decision in the Comcast case will likely also hurt ESN in a similar lawsuit it filed against Charter, the second-biggest cable company in the US after Comcast.
Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.