Win or Lose, Comcast Is on the Wrong Side of History in Supreme Court Case

The cable giant’s fight against media mogul Byron Allen’s racial-discrimination lawsuit could undermine bedrock civil rights protections.

comcast lawsuit

By Joe Ravi, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=16959908

On Wednesday, the Supreme Court heard oral arguments in a $20 billion lawsuit filed against Comcast by Byron Allen, a Black former comedian turned entertainment mogul who claims that the Philadelphia-based media giant’s decision not to carry some of his cable channels in favor of lesser-known white-owned channels is a product of racial discrimination.

Allen’s suit — the basis of which is known as Section 1981, which was originally implemented as part of the Civil Rights Act of 1866 to give newly emancipated Black citizens contract rights — had been rejected three times by a district court judge. In June, however, the U.S. Court of Appeals for the Ninth Circuit ruled that the suit could go forward if Allen was able to show that racial discrimination could be one factor in his cable channels not being carried. Comcast is now petitioning the Supreme Court to rule that race must be the sole reason — not just an influential motive — to pass a discrimination test.

“Applying the proper but-for causation standard, there is no doubt that Plaintiffs’ allegations are inadequate to state a plausible Section 1981 claim,” Comcast wrote in its request for Supreme Court review. “Comcast adamantly denies that it has engaged in any racial discrimination at any time, but even taking the allegations of the complaint at face value, Plaintiffs have not remotely pleaded a valid claim.”

Though you may be thinking this is simply a technical legal argument about a commercial dispute grown out of control, we should all be concerned by the potential effects of Comcast’s defense of its business model: making it harder for everyone to sue over discrimination. That’s why major civil rights organizations, such as the Lawyers’ Committee and the NAACP Legal Defense and Educational Fund, have filed briefs in support of Allen’s suit.

“Although the NAACP takes no position on the underlying dispute, we have decided to take the lead on this issue,” the NAACP stated in its brief. “We urge Comcast to cease its attack on Section 1981 of the Civil Rights Act of 1866; a bedrock civil rights statute that has been in place for more than 150 years.”

By suggesting that race must be the only factor to reach a ruling of discrimination, Comcast is ignoring discrimination’s nuance and complexity. Intersectionality teaches us that people of color often carry dual identities (based on, for example, gender, religion, and sexuality) that contribute to marginalization in our lives. Those who are racially discriminated can still be targeted for their skin color while simultaneously being marginalized elsewhere. How dare Comcast try to push a narrative that treats racial discrimination as a black and white issue when those who are behind those colors represent more than that.

As a Black man, I exist in a world where my lived experiences are frequently invalidated and disbelieved. People of color have to rely on cameras to prove unarmed extrajudicial police killings. We are expected to instantly forgive — and sometimes, hug — those who unlawfully kill our family members in order to demonstrate our humanity. Black and brown people are expected to placate white expectations in a country where far too many still do not seem to understand that racism is alive and well.

Whether Comcast wins or loses this Supreme Court ruling, they are on the wrong side of history. At a time when the country is witnessing civil rights rollbacks, Comcast is risking additional damage by seeking the blessing of an increasingly right-leaning Supreme Court.

I wish it would be easy to completely boycott Comcast (full disclosure: It’s embarrassing that I even have to write this op-ed using their wifi). But organizations awarding them with diversity and inclusion honors should immediately cease, and recent calls from politicians for Comcast to be broken up should be amplified instead.

Any institution that is actively working to hinder my right to protect myself from discrimination doesn’t deserve my public support. Comcast has made it very clear in this current civil rights battle that they are the oppressor, not the ally.