CMCSA Comcast Corporation

By Jess Bravin 

WASHINGTON -- Comcast Corp., seeking to quash a discrimination suit filed by a black television producer, faced a skeptical Supreme Court at Wednesday arguments, where several justices suggested there was enough in Byron Allen's allegations to get his case into court.

Mr. Allen, who gained celebrity as co-host of "Real People," a 1980s reality show, filed the suit after the cable giant refused to carry Pet.TV, Recipes.TV and other channels produced by the company he owns, Entertainment Studios Networks Inc.

Comcast's attorney, Miguel Estrada, told the high court the suit should be dismissed because it contained insufficient evidence that Mr. Allen's channels were rejected because he is black.

What Mr. Allen did allege -- that race was a "motivating factor" in Comcast's decision -- simply wasn't enough to justify a lawsuit, Mr. Estrada said.

Justice Sonia Sotomayor disagreed.

"I think as long as you have enough in your complaint to show racial animus and a reasonable inference can be drawn that that's a but-for cause," -- in other words, but for Mr. Allen being black, the contract would have been made -- "I think a plaintiff has done more than enough," she said.

Said Justice Brett Kavanaugh: "It's pretty rare, at least in my years of looking at discrimination complaints, it's pretty rare to throw one out at the [pleading] stage."

Justice Ruth Bader Ginsburg was absent Wednesday; a court spokeswoman said the 86-year-old cancer survivor was home with a stomach bug. Chief Justice John Roberts said Justice Ginsburg would participate in the case by reading briefs and transcripts.

Mr. Allen sued under a Reconstruction-era law that provides "all persons" the right to make and enforce contracts "as is enjoyed by white persons."

He claims that Comcast strung him along for eight years but ultimately refused to carry his channels; the complaint claims a Comcast executive said, "We're not trying to create any more Bob Johnsons," referring to the African American founder of Black Entertainment Television.

Comcast denies the allegations, observing that it not only carried BET, which was sold in 2001 to Viacom, but other channels with substantial African-American ownership, such as Magic Johnson's Aspire and Sean "Diddy" Combs's music channel, Revolt TV.

"It is much harder to allege and prove but-for causation than to allege that race is a motivating factor," said Mr. Allen's attorney, Erwin Chemerinsky, who is dean of the University of California, Berkeley, School of Law.

Only after discovery should the plaintiff be expected to introduce enough facts to demonstrate that race was the deciding element in a race-discrimination case, he said. At that point, he said, the plaintiff should be required to prove that claim, an argument on which some justices pushed back.

A decision in the case, Comcast Corp. v. National Association of African American-Owned Media, is expected by June.

Write to Jess Bravin at jess.bravin@wsj.com

(END) Dow Jones Newswires

November 13, 2019 15:54 ET (20:54 GMT)

Copyright (c) 2019 Dow Jones & Company, Inc.