- The Washington Times - Wednesday, November 13, 2019

An attorney representing a black-owned entertainment company Wednesday accused Comcast of refusing to air its channels due to racial bias, telling the U.S. Supreme Court that the cable company was violating one of the nation’s oldest discrimination laws.

But attorneys representing the federal government and Comcast contended that a lawsuit filed by Entertainment Studios Network was properly dismissed by a federal judge who found the cable provider’s decision not to carry the television shows was motivated chiefly by business reasons.

“Counsel, I wonder if the distinction they’re fighting over is — is somewhat academic,” Chief Justice John G. Roberts said, interrupting opening arguments by Comcast attorney Miguel Estrada. “In the contract negotiation process, for example, there may be several steps along the way, and if at one of those steps there’s clear racial animus evident and at the end of the day, the contract is denied, it may be hard to prove but for causation.”

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At issue is the relevance of the Civil Rights Act of 1866, which was enacted to protect the civil rights and business dealings of freed slaves. Specifically, attorneys and justices wrestled over whether a “but for” standard — that is, a contract that would have been signed but for reasons of racial discrimination — is the correct standard to apply.

In its lawsuit ENS, owned by black comedian/actor Byron Allen, alludes to a racial conspiracy among the Obama administration, the NAACP and Hollywood icons like Magic Johnson and Sean “Diddy” Combs.

ENS was joined in the lawsuit by the National Association of African American Owned Media. They argued that Comcast’s refusal to carry lifestyle channels such as JusticeCentral. TV, Pets. TV and Recipe. TV was motivated, in part, by racism of the cable company’s ownership.

Comcast argued that the decision was a legitimate business decision and criticized the “outlandish racist conspiracy” alleged by ENS.

Arguing for the federal government and Comcast, Assistant to the Solicitor General Morgan Ratner posed a hypothetical question about a law firm applicant who is black but has never attended law school.

“I don’t think any court would say that there was any plausible way that that person was going to be hired as a law firm associate, regardless of their race,” said Ms. Ratner.

ENS attorney Erwin Chemerinsky later posed a different hypothetical, asking if a hotel clerk who refuses to rent a room to a black person because the hotel is fully booked and because it doesn’t allow black renters should be found liable.

“We should say yes, because his race is a motivating factor,” Mr. Chemerinsky said. “The argument on the other side is, because it doesn’t allege ‘but for’ causation, that wouldn’t be enough.”

Justices showed impatience with the rationale for reinstating ENS’ lawsuit from the U.S. Court of Appeals for the 9th Circuit, which had applied a lower threshold for alleging racism by the cable giant.

“I don’t know why the 9th Circuit did what it did here,” said Justice Samuel A. Alito, who was echoed by Justice Elena Kagan.

Several justices expressed concern that overly restrictive expectations of a lawsuit alleging racial discrimination would severely limit the effectiveness of the 1866 law.

“What I see is a statute that says all citizens must have the same right,” said Justice Sonia Sotomayor.

The oral arguments began with a surprise, when Chief Justice Roberts announced that Justice Ruth Bader Ginsburg was “indisposed due to an illness.” She would participate in the case’s conference, he said.

It was later reported that Justice Ginsburg was home sick with a stomach bug.

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