WASHINGTON — A pivotal 19th-century civil rights law will be put to the test at the Supreme Court on Wednesday during oral arguments over a $20 billion racial discrimination suit filed against cable giant Comcast.
The case was brought by a black-owned production company run by former comedian Byron Allen. The company, Entertainment Studios, alleges that Comcast refused to carry its channels, including Cars.TV and Pets.TV, while offering contracts to lesser-known white-owned channels.
That runs afoul of the Civil Rights Act of 1866, Entertainment Studios argues. The post-Civil War law ensures that all Americans have the same right "to make and enforce contracts" regardless of race.
Entertainment Studios hasn't proven that Comcast was motivated by Allen's race, and Comcast, which owns CNBC parent NBCUniversal, denies it. Even if the Supreme Court allows Allen to pursue his discrimination claim, proving discrimination before the lower courts could be a high bar.
But the legal question before the justices is how high the bar should be — whether Allen has to prove that race was the sole factor or one factor among others. Comcast argues that Allen should have to prove that absent discrimination he would have secured the contract. In contrast, Allen argues that he should be allowed to sue even if race was only one factor.
Civil rights groups are paying close attention to the case. Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law, said in a statement that the case is "the most important civil rights case that will be heard by the Supreme Court this term."
"If successful, Comcast's arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims," Kristen Johnson, an attorney for the NAACP, wrote in a friend-of-the-court brief to the justices.
Comcast won its case before District Judge Terry Hatter, who dismissed Allen's complaint. But on appeal, the 9th U.S. Circuit Court of Appeals reversed the decision.
A three-judge panel of the court wrote that it was "plausible" that Entertainment Studios "experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company."
A spokesperson for Comcast said in a statement that the company was not trying to roll back civil rights protections.
"We have been forced to appeal this decision to defend against a meritless $20 billion claim, but have kept our argument narrowly focused," the spokesperson said. "This case cannot detract from Comcast's strong civil rights and diversity record or our outstanding record of supporting and fostering diverse programming from African-American-owned channels."
Comcast has faced scrutiny in the past over diversity. Amid criticism in Congress led by Rep. Maxine Waters, D-Calif., the company agreed to carry four black-owned channels as part of its agreement nearly a decade ago to merge with NBCUniversal.
It later launched channels such as Magic Johnson's "Aspire" and "Revolt TV," founded by rapper Sean "Diddy" Combs.
But Entertainment Studios said that those moves were effectively a sham. The company "chose to launch brand new networks that are predominately white-owned with African American figureheads" rather than carrying its channels, Entertainment Studios wrote in a brief.
But, in court papers, attorneys for Comcast balked at the distinction. The company said it carries other black-owned channels, including one "100% African-American-owned network," a racial category it said Entertainment Studios "invented for this lawsuit."
Comcast wrote that racial discrimination is a serious problem, but denied that a win for Allen at the Supreme Court would help solve it.
"Instead, it will permit frivolous suits such as this one to proceed in the federal courts and open the doors to burdensome discovery demands by plaintiffs who have suffered no deprivation on account of their race, while delaying justice for citizens with meritorious grievances," the company wrote.
Erwin Chemerinsky, dean of the University of California at Berkeley's law school, who is representing Entertainment Studios before the top court, said in an email that the case was ultimately about "how easy it will be to sue under this law."
And he pointed to the support for Allen's case from civil rights groups such as the NAACP.
"On the one side is Comcast, the Chamber of Commerce, and the Trump administration seeking to restrict such suits," he wrote. "On the other side, Byron Allen is supported by about 35 civil rights groups that signed on to friend of the Court briefs on his behalf, as did several groups of law professors seeking to allow such suits to go forward."
Disclosure: Comcast owns CNBC parent NBCUniversal.