Comcast Wins Supreme Court Case Over Interpretation of Civil Rights Law 52
An anonymous reader quotes a report from Ars Technica: Comcast has won a US Supreme Court case against Byron Allen's Entertainment Studios Networks (ESN), dealing a major blow to Allen's attempt to prove that Comcast's refusal to carry ESN channels was motivated by racial bias. The key question taken up by the court was whether a claim of race discrimination under the 42 U.S.C. 1981 statute can proceed without a "but-for causation." As the Legal Information Institute explains, a "but-for test" asks "but for the existence of X, would Y have occurred?"
The US Court of Appeals for the 9th Circuit ruled in 2018 that the case could proceed because ESN "needed only to plausibly allege that discriminatory intent was a factor in Comcast's refusal to contract, and not necessarily the but-for cause of that decision." The Supreme Court ruling issued yesterday reversed that decision, saying that a "plaintiff bears the burden of showing that the plaintiff's race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit." Because of yesterday's unanimous Supreme Court ruling, ESN would have to prove that racism was a determining ("but-for") factor in Comcast's decision rather than just one motivating factor. ESN and the National Association of African American Owned Media were seeking a $20 billion judgment because of Comcast's refusal to pay for carriage of ESN networks, namely Cars.TV, Comedy.TV, ES.TV, JusticeCentral.TV, MyDestination.TV, Pets.TV, Recipe.TV, and The Weather Channel. Comcast has said it didn't pay for ESN channels because of lack of customer demand for the company's programming and the bandwidth costs of carrying the channels. Comedian and media mogul Byron Allen founded ESN in 1993 and is the company's chairman and CEO. "Few legal principles are better established than the rule requiring a plaintiff to establish causation," Justice Neil Gorsuch wrote in the court's decision against ESN. "In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred 'but for' the defendant's unlawful conduct. The plaintiffs before us suggest that 42 U.S.C.1981 departs from this traditional arrangement. But looking to this particular statute's text and history, we see no evidence of an exception."
The US Court of Appeals for the 9th Circuit ruled in 2018 that the case could proceed because ESN "needed only to plausibly allege that discriminatory intent was a factor in Comcast's refusal to contract, and not necessarily the but-for cause of that decision." The Supreme Court ruling issued yesterday reversed that decision, saying that a "plaintiff bears the burden of showing that the plaintiff's race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit." Because of yesterday's unanimous Supreme Court ruling, ESN would have to prove that racism was a determining ("but-for") factor in Comcast's decision rather than just one motivating factor. ESN and the National Association of African American Owned Media were seeking a $20 billion judgment because of Comcast's refusal to pay for carriage of ESN networks, namely Cars.TV, Comedy.TV, ES.TV, JusticeCentral.TV, MyDestination.TV, Pets.TV, Recipe.TV, and The Weather Channel. Comcast has said it didn't pay for ESN channels because of lack of customer demand for the company's programming and the bandwidth costs of carrying the channels. Comedian and media mogul Byron Allen founded ESN in 1993 and is the company's chairman and CEO. "Few legal principles are better established than the rule requiring a plaintiff to establish causation," Justice Neil Gorsuch wrote in the court's decision against ESN. "In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred 'but for' the defendant's unlawful conduct. The plaintiffs before us suggest that 42 U.S.C.1981 departs from this traditional arrangement. But looking to this particular statute's text and history, we see no evidence of an exception."
I guess the judges have Fios (Score:2)
Re:I guess the judges have Fios (Score:4, Insightful)
The only property they have worth mentioning is The Weather Channel, the others are just wastes of bandwidth. If they gave prisoners only those channels to watch, it would be considered cruel and unusual punishment. I can't stress it enough, those channels suck.
The Weather Channel is starting to loose its luster too. They now come up with their own names for snow storms just to try to cash in on it like they do with hurricane coverage.
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...because we have a few of those channels on our Fios, and they SUCK. Old, retreaded content, repeated endlessly.
The only property they have worth mentioning is The Weather Channel, ...
To be fair, The Weather Channel is a bit repetitive too. Rain, Wind, Cold, Snow, Sun, Hot, Day, Night -- rinse and repeat. I wish they'd get some new content. I mean, once you seen a few episodes, you've seem them all.
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You joke but they actually started playing shows like storm chasers.
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You wish, but your comment is a couple decades out of date. You'd wait hours for something like a weather forecast.
Seems reasonable.... (Score:3)
I think poor programming choices are pretty much color blind when it comes to race, and its sad when that race card gets thrown around so quickly and easily these days, when it isn't obvious that it is a concern in the issue.
Throwing it around too often, devalues it and makes it less impactful when there actually IS a case for discrimination made.
Things like the race card and the #MeToo and other hot bed issues, need to be carefully deployed ONLY when there is real harm and intention that can be proven...otherwise, people start to turn a deaf ear to any utterance of it and it then gets lost in the noise of life.
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Seems reasonable. (Score:2)
Not racist, just not carrying content nobody wants to pay for. From the list, I am not missing anything other than probably paying another $6-$10 dollars a month for ESN access. I guess if the content is so valuable, ESN could just set up (another) streaming subscription service.
If they could do something about the shopping channels, sports channel "bundles", and reduce the price, of programming, it would be a good thing.
À la carte selection would be so much better. You could turn on and off channels
In addition, this was a 9-0 ruling. (Score:5, Insightful)
8 justices signed the Courts opinion, and RBG provided a concurring opinion.
ESN lost, and lost big.
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Now they need to invalidate the "disparate impact" doctrine.
Re:In addition, this was a 9-0 ruling. (Score:4, Insightful)
Now they need to invalidate the "disparate impact" doctrine.
So true. Disparate impact is possibly the dumbest idea ever. If more of [aggrieved group] commit murders do we stop prosecuting murder? For murder people generally say no but for other instances they just toss out standards instead of holding everyone accountable. A great example of this from Commiefornia is the ban on willfull defiance. Similar bans exist, officially or unofficially, on most forms of behavior because certain groups cannot be bothered to follow rules or play nice with others. Basic common sense should apply and that easily disqualifies disparate impact. Consistent standards of conduct that are applied evenly should remain, even if certain groups have trouble following the rules.
Citations: https://www.latimes.com/califo... [latimes.com]
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Disparate Impact is a reasonable doctrine - when applied correctly. And that "correctly" requires that the two populations be otherwise identical, a sine qua non that was ignored by mathematically incompetent lawyers and judges before the ink was dry on the original case.
And that's the biggest problem with any sort of model or statistical analysis as applied to law: The judges (and even the lawyers) are nowhere near competent to understand what it all means. It's as bad, nay, worse, than having those same
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Disparate Impact is a reasonable doctrine - when applied correctly. And that "correctly" requires that the two populations be otherwise identical, a sine qua non that was ignored by mathematically incompetent lawyers and judges before the ink was dry on the original case.
And that's the biggest problem with any sort of model or statistical analysis as applied to law: The judges (and even the lawyers) are nowhere near competent to understand what it all means. It's as bad, nay, worse, than having those same 80+ year old judges that can't use email trying to make decisions over complicated technology issues.
If the 'applied correctly' part is too hard then it makes for an impractical legal doctrine. You know it's bad law when all the cases after it only serves to narrow it's scope. At best it's an example of what happens in the long term when two wrongs attempt to make a right.
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This is exactly what crossed my mind when I read the article. Disparate impact is a fancy way to say statistical differences that are suspect. However, you get your day in court, and actual forbidden behavior must be proven and not just assumed, when criminal or civil penalties are at stake.
See, countries don't do so well when the powerful can just assert your guilt and call it a day.
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Well, the alternative standard being proposed was that so long as they could find any random racist asshole at any company, you could make a federal case out of every one of their business deals. This preserves the existing standard where you have to show that the racist asshole you found was actually relevant to the decision made.
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It's actually slightly stronger than that, though you really wouldn't want to toe the line on this one. This would actually allow a statement like "You can't even pay the security deposit? I'm not renting to no broke n-word." as long as you could show you do not rent to anyone without a security deposit. The actual outcome had to change, not just showing your true colors. That would stack the deck against you in other cases though.
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That's how it works; being an asshole isn't a tort.
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You're right that the statement has to be "but for" them being a racist, you would not have been harmed. In practice, in an example like yours, I think a fair person could conclude that you were going to find any reason to deny a black person and if anyone at the company had ever rented to someone without a security deposit, you'd be up a creek.
So the moral of the story is still "don't be a racist idiot" in the end, this ruling just prevents them from letting lawsuits spiral out of control. "Buy our stuff
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They actually agree a lot.
Get over it Byron! (Score:3, Insightful)
No-brainer decision And it was 9-0 to overturn (Score:2)
https://www.law.cornell.edu/su... [cornell.edu]
The Ninth Circuit reversed, holding that ESN needed only to plead facts plausibly showing that race played “some role” in the defendant’s decision making process and that, under this standard, ESN had pleaded a viable claim.
SCOTUS Held: A 1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit.
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If I recall, the 9th is THE most overturned circuit court of all the US circuit courts.
About the only way to get it to be less "whacky" is to have the President replace judges out there as best he can.
I know the present administration has been busy these past 3x years trying to put out as many judges that respect the constitution as possible, but the
Re:What about the 9th Circuit Court of Appeals (Score:5, Informative)
The 9th Circuit has the highest total number of appeals reversed. But that's just because it covers the largest population (over 20%), and so hears the most cases. Same difference as looking at total military spending (where the U.S. is the highest in the world) vs. military spending as percent of GDP (where the U.S. is only a bit above the world average). The 9th Circuit gets a lot of cases reversed simply because it hears a lot more cases. And the U.S. just spends a lot on its military because it has a lot more money.
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But that's just because it covers the largest population (over 20%), and so hears the most cases.
How would a court hear more cases than another just because of population size? If (for example) a court can hear one case per day and has 250 open days, then it doesn't really matter if you have 10 million people or 1 million people, you can still only hear 250 cases per year.
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Because authorized judges per population is very roughly constant, which means that the 9th Circuit has far and away more judges than any other circuit [wikipedia.org], as in 90% more than the next largest circuit.
And the 9th Circuit is not a single
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Fat-fingered. 70% more than the next largest circuit (5th Circuit).
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Wrong [politifact.com].
6th Circuit - 87 percent;
11th Circuit - 85 percent;
9th Circuit - 79 percent;
3rd Circuit - 78 percent;
2nd Circuit and Federal Circuit - 68 percent;
8th Circuit - 67 percent;
5th Circuit - 66 percent;
7th Circuit - 48 percent;
DC Circuit - 45 percent;
1st Circuit and 4th Circuit - 43 percent;
10th Circuit - 42 percent.
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They didn't make it that way, it organically grew. The last circuit split was in 1981 [wikipedia.org]. Before that you have to go back to 1929 [wikipedia.org]. Congress doesn't change anything quickly.
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Because they also have more judges on the 9th.
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If I recall, the 9th is THE most overturned circuit court of all the US circuit courts.
About the only way to get it to be less "whacky" is to have the President replace judges out there as best he can.
I know the present administration has been busy these past 3x years trying to put out as many judges that respect the constitution as possible, but they can't load them all.
I'm sure they've been targeting that district, but not sure how much success they've had.
Consider that in the 2020 election.
The 9th Circuit is located in San Francisco, so they are well to the left of the rest of California, much less the country as a whole. Hopefully they get replaced en masse and we get back to sanity.
Re:What about the 9th Circuit Court of Appeals (Score:4, Insightful)
>"I'm sure you will enjoy the coming theocracy"
If the "coming theocracy" means adhering to the meaning, language, and intent of Constitution, then please, bring it on...
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3x years trying to put out as many judges that respect the constitution, WHERE THE CONSTITUTION IS POLITICALLY CONVENIENT TO THE PRESIDENT, as possible.
FTFY
There are other parts of the constitution more than the second amendment. There are parts of the constitution that are not even amendments. The Constitution has the elastic clause, which allows for flexible interpretation of the constitution as the founders realized that culture and needs will change over time.
When there is a Democrat President they will
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Well, then, the 87% rate of the 6th Circuit and the 85% rate of the 11th Circuit ought to really blow your mind.
The median reversal rate is 70%, so where's your line between "insane" and "unremarkable," pray tell?
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It's going to get to a point where black people will be rejected because "I know you'll just scream about racism the instant you're told "No""
Damn it (Score:2)
I'd rather get COVID-19 than say something nice about Comcast, so I'm torn between saying, "Well done Comcast" and going out and inhaling deeply at my nearest Walmart. What to do? What... to... do...?
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How about we fine Comcast $20 billion and give the money to Covid-19 relief instead of Byron Allen?
Two guys are alone in a forest at night. (Score:2)
1: What was that sound?
2: I think it was a but-for.
1: What's a butt for?
2: For pooping!
Limits of insanity (Score:1)