Bernice King, daughter of Dr. Martin Luther King Jr., speaks at a podium.
Enlarge / Bernice King, daughter of Martin Luther King Jr. and CEO of the King Center, speaks throughout the Martin Luther King Jr. Annual Commemorative Service at Ebenezer Baptist Church on January 21, 2019 in Atlanta, Georgia.

As a case involving Comcast and an African American-owned TV community operator heads to the US Supreme Court, a daughter of Martin Luther King Jr. has accused Comcast of trying to “dismantle” the Civil Rights Act of 1866.

Bernice King, MLK’s daughter and CEO of the King Center for Nonviolent Social Change, wrote an open letter to Comcast CEO Brian Roberts on Friday. She wrote that Comcast’s argument on the Supreme Court would change the legislation to let companies discriminate based mostly on race.

“To alter the Act to accommodate discrimination against people based on race would reverse precarious progress in the freedom struggle, which my father was assassinated for leading and which my mother continued to join others in leading until her death,” King wrote. She additionally informed Roberts that “Comcast’s ongoing pursuit to effectively dismantle a fundamental America[n] anti-discrimination law may be the legacy history forever associates [with] the company and your legacy of leadership.”

King’s letter pertains to a lawsuit filed in opposition to Comcast by Byron Allen’s Entertainment Studios Networks (ESN), which claimed that Comcast’s refusal to carry ESN channels was racially motivated and seeks a $20 billion judgment. Allen gained a key resolution in November 2018 on the US Court of Appeals for the ninth Circuit, which dominated that the case can transfer ahead to a trial and {that a} US District Court had improperly granted Comcast’s movement to dismiss ESN’s criticism.

Comcast requested the Supreme Court to take up the case, and the court docket agreed to accomplish that. A listening to is scheduled for Wednesday this week.

The key query is whether or not Allen should show that racism was the first issue motivating Comcast. Comcast informed the Supreme Court that Allen’s declare should “fail in the absence of but-for causation.”

A “but-for” take a look at asks, “but for the existence of X, would Y have occurred?” If the but-for commonplace is utilized, Allen’s go well with would fail so long as an element apart from racism can clarify Comcast’s refusal to pay ESN to carry its TV channels, even when there is purpose to suppose that Comcast was additionally motivated by racism.

“As this case goes before the Supreme Court, Comcast, under your leadership, seeks a ruling requiring plaintiffs prove discrimination was the only factor in the denial of a contract,” King wrote to Roberts.

Given that, King informed Roberts that Comcast ought to reply the next questions:

  • Knowing that the Civil Rights Act of 1866 was enacted to prohibit discrimination of any sort when making and imposing contracts, why is Comcast relentlessly combating for the appropriate to keep away from doing enterprise with an individual of colour as long as her or his race is one of a number of elements for such refusal?
  • Are you ready to say enterprise choices based mostly on racism are acceptable if mixed with different non-racist causes?
  • Do you imagine in your coronary heart racism in modest doses ought to be permitted in American society, not to mention in enterprise contracts?

King additionally stated that Comcast’s place within the case is at odds with its latest assertion that “promoting diversity and inclusion are core objectives across our company.”

Pressure from lawmaker

Comcast is additionally going through stress from US Rep. Bobby Rush (D—Ill.), who informed Roberts in a letter that Comcast “has shown itself to be an enemy of minority communities” and that the corporate ought to be damaged up.

The National Association for the Advancement of Colored People took no place on the underlying dispute between ESN and Comcast, however stated that Comcast’s authorized argument would “roll back the crucial protections of one of the nation’s oldest civil rights laws.” Notably, the unique model of ESN’s lawsuit named the NAACP as a plaintiff together with Comcast. ESN alleged that the NAACP helped Comcast “whitewash” its discriminatory enterprise practices by getting into right into a memorandum of understanding on variety points with the corporate, however the NAACP was later dropped from the case.

The US Department of Justice supported Comcast’s place on but-for causation in a quick to the Supreme Court. The temporary stated that “But-for causation is the default rule for federal anti-discrimination laws.”

Comcast defends authorized argument and its document

When contacted by Ars at the moment, Comcast referred to as ESN’s lawsuit “frivolous” and “baseless.”

“All we are asking is that section 1981 in our case be interpreted the same way it has been interpreted for decades across the country,” Comcast stated. That’s a reference to Section 1981 of the Civil Rights Act of 1866, which prohibits racial discrimination in contractual relationships.

Comcast stated that the ninth Circuit resolution was an “outlier,” as courts have repeatedly upheld the but-for causation commonplace in Section 1981 circumstances for many years. Comcast additionally stated:

We have been pressured to enchantment this resolution to defend in opposition to a meritless $20 billion declare, however have stored our argument narrowly centered. This case can not detract from Comcast’s sturdy civil rights and variety document or our excellent document of supporting and fostering various programming from African-American owned channels. There has been no discovering of discriminatory conduct by Comcast in opposition to this plaintiff by any court docket, and there was none.

Comcast famous that it has reached programming offers with quite a few African American-owned TV networks.

Opposing arguments

SCOTUSBlog revealed an in-depth abstract of Comcast and Allen’s arguments final week. As detailed on SCOTUSBlog by reporter Amy Howe, a lawyer who has argued Supreme Court circumstances, the Civil Rights Act of 1866 says that everybody should have the identical rights as white folks to make and implement contracts. Howe summarized Comcast’s argument as follows:

If the defendant would have made the identical resolution about whether or not to enter right into a contract if the plaintiff had been white, Comcast causes, then the plaintiff had the “same right” to enter into the contract. This interpretation is additionally constant, Comcast suggests, with the Supreme Court’s earlier circumstances decoding the Civil Rights Act of 1866 as requiring the plaintiff to present that the choice in dispute was made “because of” the plaintiff’s race—”language that unmistakably connotes but-for causation.” Therefore, Comcast concludes, ESN’s criticism should allege, and it should show, that Comcast’s resolution not to enter right into a contract would have been completely different had been it not for the race of the corporate’s homeowners.

ESN argues that the Supreme Court in different circumstances endorsed a regular much less stringent than “but-for causation” in Section 1981 claims.

“The justices have ruled that courts should use a ‘burden-shifting framework,’ which initially requires the plaintiff to provide evidence suggesting discrimination but then shifts the burden to the defendant to demonstrate that there is a legitimate and nondiscriminatory reason for its decision,” Howe wrote. “Congress, ESN argues, tacitly approved that standard when it amended parts of the Civil Rights Act in 1991 but ‘left the burden shifting holding of this decision untouched.'”

ESN additionally argued that “there was no tradition of requiring ‘but for’ causation in cases involving intentional torts, which are most analogous to Section 1981,” SCOTUSBlog wrote. “The cases that Comcast cites, ESN points out, involve allegations that the defendant was negligent, not that the defendant acted intentionally. Its interpretation, ESN continues, is also more consistent with Congress’ purpose in enacting the Civil Rights Act and Section 1981: to create a ‘sweeping’ bar on racial discrimination.”

Comcast and ESN each argue {that a} Supreme Court ruling within the different’s favor would have extreme penalties. Comcast cautioned the court docket that if it would not overturn the ninth Circuit ruling, “a party may be held liable for racially discriminatory contracting—and subjected to compensatory and punitive damages—even where it would have made the same contracting decision irrespective of race.”

“The defendant’s motives”

Meanwhile, ESN warned {that a} win for Comcast would prohibit a plaintiff “who alleges that race was a motivating factor for the refusal to contract” from conducting fact-finding on these claims if the plaintiff cannot meet the but-for causation commonplace. That’s tough, ESN stated, as a result of “the defendant typically is the only party with access to evidence of the defendant’s motives.”

“Comcast’s proposed pleading standard would effectively shut the door to the federal courts for African Americans and other people of color who are treated differently in contracting because of race,” ESN additionally informed the Supreme Court.

ESN individually filed an identical lawsuit in opposition to Charter, the second-biggest cable firm within the US after Comcast. Charter’s personal petition to the Supreme Court is nonetheless pending, however the Supreme Court’s resolution on Comcast might have an effect on the Charter case. “[T]he parties anticipate the Supreme Court will hold Charter’s petition in abeyance pending the disposition of the Comcast case,” in accordance to a joint standing report filed final month on the US District Court for the Central District of California.

Disclosure: The Advance/Newhouse Partnership, which owns 13 % of Charter, is half of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.

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