Comcast Case Challenges Civil Rights Protections

In mid-November, the U.S. Supreme Court heard oral arguments in Byron Allen v. Comcast. Allen filed a station carrier’s lawsuit against the nation's largest cable TV and internet service provider in 2015 after Comcast decided not to carry channels owned and operated by Allen’s company, Entertainment Studios Network (ESN). His suit alleges that Comcast declined to carry ESN channels because the company is Black-owned. Allen filed suit under Section 1981, Title 42, of the Civil Rights Act of 1866, which makes this case far more significant than a business dispute between two corporate entities.

To underscore this point, the NAACP held a tele-town hall meeting to educate communities of color about the overarching importance of the case. Understanding the Law and What’s at Stake Section 1981, Title 42, of the Civil Rights Act of 1866 bars racial discrimination against nonwhite individuals in contracts. As NAACP President Derrick Johnson explained to more than 6,000 town hall participants, “In 1866, this nation adopted a public policy, an act that would allow African Americans to fully participate in the economic opportunities of this democracy. That act allowed newly freed slaves the ability to contract for their labor and for individuals who were employed to do so free of discrimination, and when discrimination existed, they would have the right to address issues of discrimination in our courts.”

A U.S. Supreme Court decision in Comcast’s favor would undermine the basic protections provided by the law, said NAACP General Counsel Bradford M. Berry.

“This matter is much bigger than a business dispute,” he continued. “Section 1981 is a vital tool for challenging discrimination. A win for Comcast would cut the guts out of section 1981 and provide hostile trial court judges tools to deny victims of discrimination their day in court by dismissing their cases at various pretrial stages.”

Berry noted that Comcast wants Allen to prove that race was the motivating factor in the cable company not carrying his station and that if it weren’t for his race it would have made a different decision. That stance would put the burden on the plaintiff, in this case Allen, of not only showing that a corporation intentionally considered race in its decision-making, but also of disproving all other potential explanations for its decision.

“Comcast’s position would essentially require victims of racial discrimination to become mind readers. Is it really conceivable that the U.S. Congress intended to place such a heavy burden on the newly freed slaves who were the principal beneficiaries of section 1981 when it was enacted in 1866?” Berry asked. “We think not.” Taking Action The NAACP Legal Defense and Educational Fund and the Congressional Black Caucus have filed amicus briefs in the case. U.S. Senators Cory Booker (D-NJ) and Kamala Harris (D-CA) joined the NAACP’s tele-town hall. They noted the impact the case would have on future discrimination lawsuits.

“This is a crisis moment,” Booker said. “This case decided the wrong way will set us back, will tear down the accomplishments of our ancestors, and further cement the inequities that we've been working for generations to overcome. We all must be advocating strongly to prevent what, to me, would be one of the more devastating Supreme Court decisions to the plight of African Americans and other minorities in our lifetime.”

Harris echoed his concerns: “This is a fight for justice. Let me be very clear. Justice and equality are at stake in this Supreme Court case. I am very concerned about the lasting implications that a bad decision could have on key civil rights laws and in particular a law that protects against race discrimination throughout our country. This case threatens to limit the scope of that law and could prevent countless victims from pursuing claims of race discrimination.”

Berry does not expect a decision in the case before spring 2020 and said a decision could be issued as late as June 2020.

In the meantime, concerned citizens can sign the NAACP’s Comcast Civil Rights petition asking Comcast to drop its attack on civil rights protections.

— Apryl Motley

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