Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, No. 18-1171

• Court: United States Supreme Court
• Writing for the Court: Justice GORSUCH delivered the opinion of the Court.
• Citation: 140 S.Ct. 1009,206 L.Ed.2d 356
• Parties: COMCAST CORPORATION, Petitioner v. NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA, et al.
• Docket Number: No. 18-1171
• Decision Date: 23 March 2020

140 S.Ct. 1009
206 L.Ed.2d 356

COMCAST CORPORATION, Petitioner
v.
NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA, et al.

No. 18-1171

Supreme Court of the United States.

Argued November 13, 2019
Decided March 23, 2020

Miguel Estrada, Los Angeles, CA, for the petitioner

Morgan L. Ratner for the United States as amicus curiae, by special leave of the Court, supporting the petitioner

Erwin Chemerinsky, Berkeley, CA, for the respondents.

Douglas M. Fuchs, Jesse A. Cripps, Bradley J. Hamburger, Samuel Eckman, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Miguel A. Estrada, Thomas G. Hungar, Gibson, Dunn & Crutcher LLP, Washington, DC, for petitioner Comcast Corporation.

Miller Barondess, LLP, Louis R. Miller, J. Mira Hashmall, David W. Schecter, Los Angeles, CA, Erwin Chemerinsky, University of California, Berkeley School of Law, Berkeley, CA, for respondents.

Justice GORSUCH delivered the opinion of the Court.

140 S.Ct. 1013

Few legal principles are better established than the rule requiring a plaintiff to establish causation. 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

This case began after negotiations between two media companies failed. African-American entrepreneur Byron Allen owns Entertainment Studios Network (ESN), the operator of seven television networks—Justice Central.TV, Comedy.TV, ES.TV, Pets.TV, Recipe.TV, MyDestination.TV, and Cars.TV. For years, ESN sought to have Comcast, one of the nation's largest cable television conglomerates, carry its channels. But Comcast refused, citing lack of demand for ESN's programming, bandwidth constraints, and its preference for news and sports programming that ESN didn't offer.

With bargaining at an impasse, ESN sued. Seeking billions in damages, the company alleged that Comcast systematically disfavored "100% African American-owned media companies." ESN didn't dispute that, during negotiations, Comcast had offered legitimate business reasons for refusing to carry its channels. But, ESN contended, these reasons were merely pretextual. To help obscure its true discriminatory intentions and win favor with the Federal Communications Commission, ESN asserted, Comcast paid civil rights groups to advocate publicly on its behalf. As relevant here, ESN alleged that Comcast's behavior violated 42 U.S.C. § 1981(a), which guarantees, among other things, "[a]ll persons ... the same right ... to make and enforce contracts ... as is enjoyed by white citizens."

Much motions practice followed. Comcast sought to dismiss ESN's complaint, and eventually the district court agreed, holding that ESN's pleading failed to state a claim as a matter of law. The district court twice allowed ESN a chance to remedy its complaint's deficiencies by identifying additional facts to support its case. But each time, the court concluded, ESN's efforts fell short of plausibly showing that, but for racial animus, Comcast would have contracted with ESN. After three rounds of pleadings, motions, and dismissals, the district court decided that further amendments would prove futile and entered a final judgment for Comcast.

The Ninth Circuit reversed. As that court saw it, the district court used the wrong causation standard when assessing ESN's pleadings. A § 1981 plaintiff doesn't have to point to facts plausibly showing that racial animus was a "but for" cause of the defendant's conduct. Instead, the Ninth Circuit held, a plaintiff must only plead facts plausibly showing that race played "some role" in the defendant's decisionmaking process. 743 Fed.Appx. 106, 107 (2018) ; see also National Assn. of African American-Owned Media v. Charter Communications, Inc. , 915 F.3d 617, 626 (CA9 2019) (describing the test as whether "discriminatory intent play[ed] any role"). And under this more forgiving causation standard, the court continued, ESN had pleaded a viable claim.

Other circuits dispute the Ninth Circuit's understanding of § 1981. Like the

140 S.Ct. 1014

district court in this case, for example, the Seventh Circuit has held that "to be actionable, racial prejudice must be a but-for cause ... of the refusal to transact." Bachman v. St. Monica's Congregation , 902 F.2d 1259, 1262–1263 (1990). To resolve the disagreement among the circuits over § 1981 ’s causation requirement, we agreed to hear this case. 587 U. S. ––––, 139 S.Ct. 2693, 204 L.Ed.2d 1089 (2019).

II

It is "textbook tort law" that a plaintiff seeking redress for a defendant's legal wrong typically must prove but-for causation. University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338, 347, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)). Under this standard, a plaintiff must demonstrate that, but for the defendant's unlawful conduct, its alleged injury would not have occurred. This ancient and simple "but for" common law causation test, we have held, supplies the "default" or "background" rule against which Congress is normally presumed to have legislated when creating its own new causes of action. 570 U.S. at 346–347, 133 S.Ct. 2517 (citing Los Angeles Dept. of Water and Power v. Manhart , 435 U.S. 702, 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) ). That includes when it comes to federal antidiscrimination laws like § 1981. See 570 U.S. at 346–347, 133 S.Ct. 2517 (Title VII retaliation) ; Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 176–177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (Age Discrimination in Employment Act of 1967).

Normally, too, the essential elements of a claim remain constant through the life of a lawsuit. What a plaintiff must do to satisfy those elements may increase as a case progresses from complaint to trial, but the legal elements themselves do not change. So, to determine what the plaintiff must plausibly allege at the outset of a lawsuit, we usually ask what the plaintiff must prove in the trial at its end. See, e.g., Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Dura Pharmaceuticals, Inc. v. Broudo , 544 U.S. 336, 346–347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) ; Ashcroft v. Iqbal , 556 U.S. 662, 678–679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

ESN doesn't seriously dispute these general principles. Instead, it suggests § 1981 creates an exception to one or both of them. At times, ESN seems to argue that a § 1981 plaintiff only bears the burden of showing that race was a "motivating factor" in the defendant's challenged decision, not a but-for cause of its injury. At others, ESN appears to concede that a § 1981 plaintiff does have to prove but-for causation at trial, but contends the rules should be different at the pleading stage. According to this version of ESN's argument, a plaintiff should be able to overcome at least a motion to dismiss if it can allege facts plausibly showing that race was a "motivating factor" in the defendant's decision. ESN admits this arrangement would allow some claims to proceed past the pleading stage that are destined to fail later as a matter of law. Still, the company insists, that is what the statute demands.

A

We don't doubt that most rules bear their exceptions. But, taken collectively, clues from the statute's text, its history, and our precedent persuade us that § 1981 follows the general rule. Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while the materials the plaintiff can rely on to show causation may change as a

140 S.Ct. 1015

lawsuit progresses from filing to judgment, the burden itself remains constant.

Congress passed the Civil Rights Act of 1866 in the aftermath of the Civil War to vindicate the rights of former slaves. Section 1 of that statute included the language found codified today in § 1981(a), promising that "[a]ll persons ... shall have the same right ... to make and enforce contracts, to sue, be parties, [and] give evidence ... as is enjoyed by white citizens." 42 U.S.C. § 1981 ; Civil Rights Act of 1866, 14 Stat. 27.

While the statute's text does not expressly discuss causation, it is suggestive. The guarantee that each person is entitled to the "same right ... as is enjoyed by white citizens" directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation. If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the "same" legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff ’s race, it follows that the plaintiff has not received the same right as a white person. Nor does anything in the statute signal that this test should change its stripes (only) in the face of a motion to dismiss.

The larger...