Days before the new session of the Supreme Court is set to begin, an ever-growing chorus of displeasure with the alliance between Comcast and Donald Trump’s Department of Justice in Byron Allen’s $20 billion battle with the NBCUniversal owner grew even louder and potentially more presidential.
In the closing hours for amicus briefs to be filed to the high court earlier this week, Oval Office contenders Sen. Cory Booker (D-NJ) and Sen. Kamala Harris (D-CA) joined with members of the Congressional Black Caucus and the influential Connecticut Sen. Richard Blumenthal to stop a perceived pivotal change to long-standing civil rights legislation in the case that is to be heard before the justices on November 13.
“As members of Congress, amici have a strong interest in ensuring that the laws Congress has passed are interpreted in a manner that is consistent with their text, history, and Congress’s plan in passing them,” says the brief (read it here) that was filed Monday along with a flood of similar documents from the NAACP, the National Urban League, the National Action Network, ACLU, the Mexican American Legal Defense and Educational Fund, the National Women’s Law Center and over a dozen more organizations.
“The statute at issue in this case—42 U.S.C. § 1981—was passed immediately after the Civil War as part of a broader effort to ensure that the newly freed slaves enjoyed the same rights as other citizens,” the Senators and Congressional Representatives state. “This Court should not rewrite Section 1981 and disturb the vital protections that Congress passed that statute to provide.”
Amid battling Allen and his Entertainment Studios for nearly four years in the courts, Comcast got a boost from the Trump administration on August 15, when the William Barr-led Justice Department filed a brief that seeks to tighten the definitions of the Reconstruction Era statute in the Philadelphia-based corporation’s favor.
The DOJ’s brief frames the statute to require that Entertainment Studios has to prove race was not merely a motivating factor, as the 9th Circuit interpreted the statute earlier this summer. Now, if Chief Justice John Roberts and associate justices agree, Allen’s lawyers would have to prove that race was absolutely the only reason Comcast didn’t place the company’s channels on its distribution services and platforms – which is a near-impossible standard by any measure.
Remarkably, Comcast isn’t just taking a helping hand from the DOJ, they are in what seems like full partnership, with the company giving federal lawyers 10 minutes of their time before the SCOTUS to argue the matter.
Still, Comcast also objected to the characterization of its intentions by the senators, representatives and numerous leading civil rights groups.
“We are not seeking to roll back the civil rights laws — all we are asking is that the Court apply Section 1981 in our case the same way it has been interpreted for decades across the country,” a spokesperson for the company told Deadline on Thursday.
“We have been forced to appeal this decision to defend against a meritless $20 billion claim, but have kept our argument narrowly focused,” the Comcast rep added in language that’s become familiar in recent weeks as the SCOTUS hearing gets closer and closer. “This case arises from a frivolous discrimination claim that 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.
“There has been no finding of discriminatory conduct by Comcast against this plaintiff by any court, and there has been none. In fact, the trial court dismissed plaintiffs’ claims of race discrimination three times, finding them utterly without merit.”
Yes, but AT&T settled a similar multi-billion matter with Entertainment Studios and other judicial jurisdictions kept the matter with Comcast alive, which is why the corporation along with Charter were the ones to take the matter to the Supreme Court. Or as Senators Booker and Harris and others said on September 30: “This Court should affirm the judgment below because Respondents could state a cognizable claim against Petitioner by alleging that Petitioner denied them the right to make and enforce contracts free from racial discrimination, regardless of whether race was a but-for cause of that denial.”
On October 1, fellow Democrat and Presidential candidate Mayor Pete Buttigieg slammed the DOJ stepping in earlier this summer for Comcast with its seemingly new read on the time-honor legislation. “It’s very clear that the civil rights division of the DOJ is not very energetic when it comes to civil rights, right?” the South Bend Mayor noted at a campaign event in LA on October 2. “This is critical because we need that economic empowerment to happen. I think this conversation needs to happen alongside the reparations conversation.”
Allen and Entertainment Studios are represented in the case by a team from Miller Bardondess LLP and University of California Berkeley School of Law’s Erwin Chemerinsky. Attorneys from Gibson Dunn & Crutcher LLP are working for Comcast in the matter.
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