Once known as the entrepreneur who debuted as a stand-up comedian on The Tonight Show as a teenager, Allen, 58, sued cable operators and satellite distributors after they refused to license his small channels devoted to topics including criminal justice, cars and pets. He hired an attorney who defended the city of Los Angeles in the Rodney King beating case and demanded tens of billions of dollars via allegations of a racial bias conspiracy against Comcast, DirecTV, Charter and others.
Just how out there was Allen’s lawsuit? The NAACP and Al Sharpton were originally co-defendants in the case for allegedly taking actions to “whitewash” Comcast’s discriminatory business practices. As the story was told in the suit, when Comcast sought regulatory approval for its 2010 bid to acquire NBCUniversal, it looked to gather support. To calm any fears that the merger would have a detrimental impact on diversity, Comcast made voluntary commitments and came to memoranda of understanding with various civil rights groups like the NAACP, National Urban League and Sharpton’s National Action Network. But Allen took issue with those so-called “sham” agreements, questioning the monetary donations that Comcast had made to these groups and further challenging how Comcast was spending $25 billion annually on channel licensing, but less than $3 million on what he characterized as “100% African American-owned media.”
On the day the suit was filed, Sharpton called me and strenuously took issue with the claim that his reported $750,000 salary for hosting an MSNBC show was essentially a disguised payment for having supported Comcast’s acquisition of NBCUniversal. Sharpton promised he’d retaliate against Allen with a defamation suit. (That never happened, and he and other civil rights groups were dismissed from the case.)
A lot has changed in the four years since the case was first filed. For starters, Allen has proved himself to be one of the most ambitious moguls in entertainment. In 2018, he spent $300 million to buy The Weather Channel. Then he teamed with Sinclair Broadcast Group to buy Fox’s sports assets that were divested as part of the Disney merger. And on Oct. 1, he unveiled a $290 million deal to acquire 11 local TV stations affiliated with CBS, NBC and ABC. Now Allen’s Comcast suit will be heard by the Supreme Court during the term that began Monday.
Allen’s suit was rejected three times by a district court judge who saw no plausible case that discrimination caused Comcast to not license Allen’s channels.
In reviving the case and giving Allen the green light, the 9th Circuit Court of Appeals concluded that Allen needed only to plausibly allege that discriminatory intent was a factor in — not the “but-for” cause of — Comcast’s refusal to license his channels. And the appeals court saw enough to meet this standard from the allegation that Comcast was carrying about 500 networks that Verizon, AT&T U-verse and DirecTV were carrying, but unlike its rivals, it did not carry Allen’s. In addition, Comcast was offering carriage to “lesser-known, white-owned networks” like Fit TV, Current TV and Baby First Americas. Comcast may have had legitimate reasons (e.g., no interest in spending millions for Allen’s channel about pets), but the appeals court felt that should be weighed at a latter portion of the case.
That the Supreme Court accepted review may be partly attributable to how the business community has locked onto Allen’s dispute with Comcast as an exemplar of tort nuisance. A supporting brief from the U.S. Chamber of Commerce urged the high court to take it up and argued that choices made in the workplace can be “inherently subjective,” and that by making Comcast prove a negative from the get-go — that discrimination isn’t any factor in decision-making — such a standard will impose unwarranted litigation costs and reputational harm on companies throughout the country.
In recent years, the Supreme Court’s growing contingent of conservative justices has acted as a miserly gatekeeper on civil litigation by heightening pleading standards in other contexts, spelling out the requisite injury to maintain a lawsuit and broadly enforcing arbitration agreements. As such, Allen probably goes into the Supreme Court battle, set to be argued Nov. 13, as an overwhelming underdog. The Trump administration is supporting Comcast, led by CEO Brian Roberts, telling the high court there may be repercussions for other federal anti-discrimination laws, too. U.S. Solicitor General Noel Francisco has requested the opportunity to participate in the oral hearings.
Keep in mind that if Allen prevails at the Supreme Court, he doesn’t yet win the case. He will still need to gather evidence and prove that bias was the tipping point against carriage of his channels. But if the high court agrees with the 9th Circuit, Allen will be entitled to obtain documents about Comcast’s decision-making and take depositions of Comcast’s executives to find out the truth. Should Allen lose, on the other hand, those making discrimination claims in court (perhaps on the gender and sexual orientation front, too, depending on what the justices decide) will face a higher hurdle to ever get to discovery and trial. That, in turn, could discourage attorneys from representing alleged victims.
If there’s any hope for Allen, it may come from the conservative judicial doctrine of originalism, that being some deeper examination into the intentions of those who drafted the Civil Rights Act of 1866, which followed the formal abolition of slavery through the 13th Amendment to the U.S. Constitution. Back then, Southern states weren’t happy with the newfound freedom of African-Americans and enacted “Black Codes” to compel them to work through low-wage contracts and debt. Congress responded by passing a federal law aimed at achieving “practical freedom” for ex-slaves, including by prohibiting discrimination when making and enforcing contracts. That included an effort to stop African-Americans from being denied the right to make legitimate contracts. The ambition of the nation’s oldest civil rights statute was a broad stroke striving at equality, with nary a mention of any particular pleading burden. Both the text of the law and the legislative history are points stressed by Allen, various civil rights groups and a dozen historians opining in this case who believe that reading a “but-for standard” into the anti-bias contracting law threatens to undermine efforts to eradicate racial discrimination.
The list of groups standing behind Allen notably includes the NAACP. That’s right, the same civil rights group once included as a defendant by Allen is now supporting him with an amicus brief. In the history of American jurisprudence, how many times has someone escaped a lawsuit as co-defendant only to turn around and support the plaintiff on appeal? That question should illustrate both the unpredictable road this case has taken and its noble stakes. If the suit struck people as initially outlandish but with a hint of something worth exploring, it well make perfect sense that Allen’s endeavor has become a vehicle for the Supreme Court to take up standards.