Earlier this year the Supreme Court issued its opinion about a racial discrimination case. The justices decided this case by a 9-0 vote.

Bryon Allen, entrepreneur and owner of Entertainment Studios Network (ESN) sought to have Comcast carry its channel. Comcast rejected this proposition, claiming bandwidth constraints and lack of demand for ESN programs. ESN alleged Comcast violated §1981(a), a statute that guarantees “all persons… the same right…to make and enforce contracts… as is enjoyed by white citizens.” The District Court dismissed the complaint for failing to show Comcast would have contracted with ESN, but-for racial motivations. The Ninth Circuit disagreed, holding ESN had a viable claim because it only needed to show race played a “sole role” in Comcast’s decision-making. In order for ESN to seek redress, it must demonstrate that, but for Comcast’s unlawful conduct, its alleged injury would not have occurred. These essential elements must stay constant through the life of the lawsuit.

In a slightly fractured unanimous decision, the Supreme Court held, that to prevail, a plaintiff must initially prove that but for race, it would not have suffered the loss of a legally protected right. Justice Gorusch acknowledged but rejected ESN’s argument that §1981 creates an exception to proving but-for causation and essential elements of a claim do not need be constant throughout the lawsuit. ESN further claims that it should overcome at least a motion to dismiss if it can plausibly show race was a determining factor in the decision. Instead, Gorusch reasoned that, statutory language along with past precedent, suggest §1981 follows the general rule. Statutory language of §1981 guarantees equal rights enjoyed by white citizens and nothing in the statute signals this test should change when confronted with a motion to dismiss. Gorusch’s examination of legal precedent and neighboring provision §1982 reveal that courts have interpreted “because of race” to be associated with but-for causation. ESN asks the court to rely on the “motivating factor” test in the Civil Rights Act of 1964, with no avail. The Court reasons ESN mistakenly misplaces a process-oriented right with the motivating factor test. Thus, the court vacated the judgement of the court of appeals and remanded the case to determine the sufficiency of ESN’s pleadings under the correct legal rule.

 In a four-page opinion concurring in part and concurring in the judgment, Ginsburg agreed but quibbled that racial violation under §1981 protects the right “to make and enforce contracts” which includes the manner in which the contract is carried out. Therefore, if race accounted for Comcast’s conduct during the contract-formation process, it should not escape liability for those injuries.

The Supreme Court held that a plaintiff alleging racial discrimination in contracts must show that the plaintiff’s race was the actual cause of the alleged injury in failing to reach agreement on a contract. 

Ultimately, this case was a set back compared to traditional in civil rights cases. As the Supreme Court continues to hear cases via teleconference due to the COVID-19 pandemic, it will be interesting to see how other cases may impact law and entertainment. . .

Feel free to share your thoughts below!

Until next time,

Lauryn