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Trump bashes Comcast and then joins with the media giant to limit civil rights suits, law professors say

Philadelphia Inquirer logo Philadelphia Inquirer 9/7/2019 By Bob Fernandez, Valerie Russ, The Philadelphia Inquirer

This July, in a typical fit of pique, Donald Trump tweeted that Comcast-owned NBC and its left-leaning MSNBC were “Trump haters.” Last September, the president tweeted “NBC FAKE NEWS.”

But the Trump administration became friendlier with the nation’s media and cable giant in August when Solicitor General Noel J. Francisco filed a brief in the U.S. Supreme Court supporting Comcast in a highly contentious $20 billion civil rights case. Hollywood businessman and comedian Byron Allen, who is African American, claims in the suit that Comcast discriminated against him by refusing to carry his cable channels, a case scheduled to be heard by the U.S. Supreme Court on Nov. 13.

A favorable Comcast decision could make it harder for anyone to bring civil rights cases, several legal experts warned. A Comcast win could also cascade into everyday American lives, changing how race could affect lawsuits involving rents, jobs, and education.

The case is attracting so much attention that on Tuesday, the head of the Los Angeles Urban League called for a “boycott” of Comcast if it did not withdraw from the Supreme Court case.

Roughly speaking, the pro-Allen position is that race can play no role in a business decision on a contract, while the pro-Comcast position is that if a company makes a valid decision for business purposes, it doesn’t matter if race had some part in it.

Legal experts were quick to parse out the implications. The Supreme Court would be saying “it’s OK to discriminate based on race, just don’t make that the significant part of the decision,” Michael Foreman, the director of the Civil Rights Appellate Clinic at Penn State, said on Friday. "I’m sure [Trump’s] thinking is, Let’s make it harder to sue for discrimination claims, and he’s taking that position at the Supreme Court.”

Robert Tsai, a visiting law professor at Temple University Beasley School of Law, said that “if Comcast wins in tightening the standards, then plaintiffs would have a much higher threshold or standard to go forward. It means a case can be tossed at the hearing stage, without documents [released], without discovery and depositions.”

Comcast says a favorable decision will have limited consequences -- a “big yawn” -- on the nation’s civil rights laws.

The Philadelphia company petitioned the Supreme Court to hear the case after an unfavorable decision by the Court of Appeals for the Ninth Circuit in California that loosened the standards on discrimination cases. Comcast was joined by pro-business groups that have filed supporting briefs, arguing that looser standards in discrimination cases could lead to costly litigation and settlements.

“We are not proposing any radical changes in the law,” Miguel Estrada, partner in the Washington firm Gibson Dunn who is the counsel of record for Comcast in the case, said Friday. “We are proposing that the Supreme Court restore the law to what other appeals courts have said it is. It is wrong to say that it will set back anything.”

Estrada said that “if you claim discrimination, you have to prove discrimination” and not have the idea “floating around” that race played some part in a business decision.

Comcast denies discrimination in refusing to carry Allen’s cable channels, saying it had valid business reasons that included low ratings. Comcast also says it has First Amendment right to distribute what channels it wants on its systems.

The Trump administration’s emergence as a Comcast ally at the Supreme Court has stunned media and political observers, not only because of the president’s anti-NBC tweeting but because Comcast formed a powerful coalition of civil rights groups and individuals to support its acquisition of NBCUniversal.

David L. Cohen, one of the company’s top executives who heads Comcast’s powerful regulatory and lobbying arm, also has been a major Democratic fund-raiser for presidential candidates for many years.

“The same people who bring you Rachel Maddow and Lester Holt have gone to the Supreme Court and joined forces with Donald Trump to roll back civil rights,” said David Goodfriend, a telecom lobbyist in Washington and frequent Comcast critic.

Michael A. Lawson, president and CEO of the Los Angeles Urban League, threatened the boycott of Comcast in a letter to chief executive Brian Roberts and Cohen, saying that “you should not challenge our civil rights in the U.S. Supreme Court and foster institutionalized racism with the help of Donald Trump.” Cohen is a member of the board of trustees at the National Urban League, Lawson noted.

The National Urban League in Washington has not endorsed the Los Angeles chapter’s Wednesday letter. The national organization could not be reached for comment.

In their fight against Byron Allen, Comcast and now the DOJ have asked SCOTUS for a new interpretation of the Civil Rights Act of 1866, specifically section 1981, which prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. pic.twitter.com/sKA8A5PlsN

— Los Angeles Urban League (@laurbanleague) August 29, 2019

Allen is a successful comedian who came up with Jay Leno and David Letterman and now controls the largest African American-owned entertainment company in Hollywood. Allen filed the suit against Comcast in California under the Civil Rights Act of 1866 law, which says that African Americans have the same rights as whites in business contracts. The Reconstruction-era law was enacted immediately after the Civil War to protect labor conditions for newly freed African Americans as they entered into contracts to work for former slave owners, said Temple’s Tsai.

In a phone interview Thursday, Allen said that he was not calling for a boycott of Comcast but that he also believed that if Comcast won, it would weaken civil rights laws for all minorities. “Comcast will talk about diversity and how many shows they have with black people. But we’re not talking about that. We’re talking about ownership," Allen said. "Out of the billions that Comcast spends, how much of that is going to an African American-owned media company, not how many black faces you put on TV?”

Allen’s attorneys have told the court that his Entertainment Studios Networks is already distributed by 50 pay-TV operators, including Verizon FIOS, DirecTV, RCN, and Suddenlink, to 80 million subscribers. Allen’s cable channels include JusticeCentral.TV and Comedy.TV. He also owns 43 syndicated television series, eight cable networks, the Weather Channel, and a movie studio that distributed the film Chappaquiddick.

Comcast carries the Weather Channel, which Allen acquired after he filed the suit against Comcast.

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Letter to Comcast (PDF)

Letter to Comcast (Text)

Erwin Chemerinsky, dean of Berkeley Law at the University of California who will argue Allen’s case before the Supreme Court, said Thursday that he met with attorneys at the Department of Justice -- which includes the solicitor general -- seeking support for Allen’s case, but the agency “came in on the side of business and not civil rights.”

Estrada said that Comcast attorneys also met with attorneys at the Justice Department among others to discuss the case and the government’s interest in it.

On Aug. 15, Francisco filed the government’s 33-page amicus brief supporting Comcast. The decision in the case, the brief says, “may have repercussions for other federal anti-discrimination laws that the United States enforces or that apply to the federal government.” The Justice Department did not respond to an email.

The Supreme Court docket shows that the U.S. Chamber of Commerce, the Center for Workplace Compliance, and the Washington Legal Foundation filed briefs in support of Comcast, in addition to the Justice Department.

The U.S. Chamber brief says the “mixed-motive” standard of the Ninth Circuit Court of Appeals in the Allen case "would invite tenuous allegations of discrimination and make it difficult to resolve cases on summary judgment, requiring fact-heavy trials into defendants’ subjective mindsets. Defendants would have strong incentives to settle even meritless claims simply to avoid these litigation costs.

David S. Cohen, professor at the Drexel University’s Thomas R. Kline School of Law, said that “today very few people are openly racist, so they hide behind other reasons. A law that requires someone to say that race is the only reason for discrimination will be very hard to prove.”

“This is a [Supreme Court] that is very conservative and tends to rule against civil rights plaintiffs," Cohen said. "So the Trump administration thinks it has a good chance of winning.”

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©2019 The Philadelphia Inquirer

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