Larry Smith

Few people have heard of the Civil Rights Act of 1866, which has the distinction of being the first legislation of its type to be passed in America. Andrew Johnson, who became president following the assassination of Abraham Lincoln, was a staunch white supremacist who vetoed the act twice. Fortunately, a majority of both houses of Congress overrode his second veto, which essentially allowed the law to take effect. Congress did so in the wake of the passage of the 13th Amendment, which was the first of three “Reconstruction Amendments” that were designed to usher in equality for African Americans after the Civil War. I used the phrase “essentially allowed the law to take effect” because the fight to enact it continued even after the vetoes. Various congressmen argued that the legislative branch lacked the authority to enact the law. Fortunately, Congress passed the 14th Amendment in 1868, which led to the ratification of the Civil Rights Act of 1866 — in 1870. Ironically, some historians believe that its passage ensured that formerly enslaved persons would not receive 40 acres and a mule. 

I majored in history in college, with a particular focus on African American studies. For me, the battle to pass the Civil Rights Act of 1866 is a fascinating episode in the long, hard slough for equal rights. Yet, in addition to its historical importance, the act is all the more poignant due to what is taking place this week in the United States Supreme Court. Media mogul Byron Allen has filed a $20 billion lawsuit against Comcast, the entertainment behemoth that controls much of what Americans consume via our myriad internet-accessing devices. As you read these words, Allen and Comcast are squaring off in the gilded halls that are located at 1 First Street NE in Washington, D.C. (It is important to note that Allen has filed separate suits against other cable distributors.) 

Byron Allen entered my consciousness when he was a regular contributor on a 1980s show called “Real People,” which he refers to as “the grandfather of reality TV.” Subsequently, Allen had occupied scant space between my ears until a decade or so ago when I read that he had become an extraordinarily successful entertainment entrepreneur. I learned about his background of going from being an intelligent and motivated child entrepreneur who busted his hump to put food on the table for himself and his mother. Allen’s thirst for knowledge, exceptional work ethic and preternatural business acumen drove him to build an enviable media empire called Entertainment Studios. He has put all of that at risk due to his dogged quest to level the proverbial playing field for African Americans who have the temerity to knock down the barriers to the upper echelons of entertainment. Allen is an exemplar of the Latin dictum, Inveniam viam aut faciam (“I’ll find a way, or I’ll make one”). 

Those of us who are not lawyers might find Allen’s lawsuit, which he filed in 2015, to be rather esoteric. It stems from the fact that Comcast, the nation’s largest cable distributor, declined to make several of Allen’s channels available on its system, and that it failed to do so based on racial bias. In short, he is alleging that Comcast is violating a specific provision of the Civil Rights of 1866 – Section 1981. The crux of the complaint is that Comcast is barring African Americans equal access to contracts, which the act was designed to prevent. Allen and his attorneys are arguing that even if race is not the primary reason for Comcast’s position, the company’s refusal to carry Allen’s stations is a violation of law.

For its part, Comcast is defending itself on three grounds. In no particular order, Comcast says that the suit is without merit because (1) their system carries other African American channels, including Oprah Winfrey’s OWN network; (2) Allen’s viewer base is too low to be sufficiently attractive to Comcast; and (3) Allen is misinterpreting Section 1981. Thus, even if the first two defenses are found to be insufficient, Comcast says Allen’s suit is invalid because the standard that he is using is too broad an interpretation. Comcast says that the burden is on Allen to prove that, “but for” his race, his channels would have been added to their system. (Incidentally, the Trump administration is siding with Comcast against Allen.)

As might be expected, several attorneys and law professors have opined regarding the outcome. A fair summary is that several of them believe that Allen has a high hurdle to overcome. I am not qualified to offer a prognostication as to who will prevail. However, I believe that some battles are worth fighting, even if the outcome is not what one would hope. To borrow from “The Chappelle Show,” I am hopeful that this turns out to be a case of when “keeping it real” goes right

Larry Smith is a community leader. Contact him at larry@leaf-llc.com.

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