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Supreme Court Crushes Media Diversity in Ruling on Lawsuit Accusing Comcast of Racial Discrimination

Web ExclusiveMarch 31, 2020
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The Supreme Court is in coronavirus lockdown and has postponed oral arguments until some future date, but they managed to hand down five opinions on last Monday, including a decision considered a blow for the civil rights community: the case of Comcast v. National Association of African American-Owned Media. We find out more from author Matt Stoller, who wrote about this in his in-depth new piece for The American Prospect headlined “Remote Control: A civil rights lawsuit highlights how Comcast’s monopoly crushes media diversity.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman. We’re broadcasting from New York City, the center of the pandemic, the epicenter of the pandemic in the United States. Like most of the country, the Supreme Court is in coronavirus lockdown, has postponed oral arguments until some future date. But they did manage to hand down five opinions on Monday, including in the case of Comcast v. The National Association of African American Media, and that decision was a blow for the civil rights community.

For more, we’re joined by author Matt Stoller, who wrote about this in his new piece for The American Prospect headlined “Remote Control: a civil rights lawsuit highlights how Comcast’s monopoly crushes media diversity.”

Welcome back to Democracy Now!, Matt. Can you just go through this story? I mean, most people are worried about how to get mass protective equipment, how to protect others and their families in this time of the pandemic. And the Supreme Court hands down this decision. Explain what it’s all about.

MATT STOLLER: Yeah. So, I wrote this story before the pandemic emerged. It’s a story of how monopoly, the debate over monopoly power, which has really exploded the last few years, hits the black community, and particularly black businesspeople. And the one area where you have a bunch of wealthy black businesspeople who can finance and create businesses and have a network together is largely in the entertainment space, because that was sort of one of the first places — media and entertainment in the ’70s and ’80s were one of the first places where where black entrepreneurs were able to compete on a level playing field.

And what this story is about is, it’s basically — it’s about a series of black entertainment moguls who started media networks or television shows. They’re people like, you know, Sean “Diddy” Combs, 50 Cent, Magic Johnson, people you know, right? And how, as a condition of Comcast’s NBC purchase 10 years ago under the Obama administration, Comcast had to promise to give them — let them carry their station to their customers. So, Comcast is around 20 million households that subscribe to pay TV services, and they said, “OK, we’re going to carry black-owned and Latino-owned media channels.” And then they didn’t. And so, a lot of these — so, all of these media moguls either shut down their TV stations or are angry and are speaking out. And it’s really the first conflict between monopoly power where it’s more of a — it’s kind of a civil rights issue, as well, because the people involved are black or Latino.

Now, the ringleader of this is a guy named Byron Allen, who’s a weird guy and a little bit of like a showman, P.T. Barnum type of showman, kind of uses civil rights rhetoric, but also, you know, loves Rupert Murdoch and has done some very self-serving things. But he has essentially been suing both Comcast and Charter for tens of billions of dollars under a very old — actually, the country’s oldest civil rights law, which is the Civil Rights Act of 1866. And he’s saying, “Hey, you are not contracting with me on equal terms.” And the Civil Rights Act of 1866 says that black people and white people get to be contracted on equal terms. It was a civil rights act just after the Civil War.

And Comcast, aided by the Trump administration, said, “You know what? We don’t actually think that you have provided the burden of proof that you need.” So, you know, a lot of civil rights statutes say that if you can prove that race was one factor into the decision, then there’s a violation of the rule. But what Comcast and then also the Trump administration said is that, “No, actually, you have to prove that the only reason that you didn’t get this contract is because you’re black” — what’s called a “but-for standard.” So, but for the fact that you are black, you would have — you know, the outcome would have been different. And that is a much higher burden to meet. And a lot of the, you know, things like the terms of negotiation and how the deal came together are obviously influenced by race, but they’re not — it’s not necessarily that you can prove — really, it’s really hard to prove that the only reason that you didn’t get something is because you are black or Latino versus white.

And so, the Supreme Court established this much higher standard for using the Civil Rights Act of 1866, and then — and remanded the decision to the circuit court or the district court to continue the case. But it was this really interesting moment where you had a bunch of kind of black entrepreneurs, and who are reasonably well capitalized, trying to address — trying to actually build businesses — right? — in a more socially equal nation than it was in the 1960s or ’50s, and still being blocked by monopoly.

And so, what I find really fascinating about the story is, as you’ve seen a kind of anti-monopoly movement emerge, you know, one of the really notable gaps in that movement is that you don’t have a lot of black businesspeople or Latino businesspeople saying this is a real problem. And there are a lot of reasons for that. But one of the reasons is that there’s just no — the main one is that there’s no capital in those communities. So, white communities have access to capital and banks, they have money, whereas black businesspeople just don’t. And now in the one area where they actually do, which is in entertainment, you’re seeing them run up against monopoly. So, this is kind of a moment. This is kind of a breakthrough moment, in a sense, for people who care about monopoly, because what you’re seeing is the movement has become kind of more multiracial.

And I guess the last thing is, I kicked off the story with a feud by 50 Cent, the hip-hop artist, who has the most popular show on the Starz network, which is called Power, and the Starz network was recently kicked off Comcast, because Comcast says, “We don’t want — you know, we only want to make our own content now or make deals with the really big guys, like Disney or AT&T/Time Warner. And so we’re going to kick Starz off, and we’re going to replace you with a cheaper version.” And so, 50 Cent put up on his Instagram a kind of a really insulting post, targeted not at kind of a fellow hip-hop guy. It’s like not like a hip-hop battle, but targeted at David Cohen, who is the billionaire CEO of Comcast. And it’s this fascinating moment where you’re seeing like the conflict, like kind of a cultural conflict, but around business, playing out. And I think it’s important, because it does broaden the nature of power in America. It broadens that debate to include race in a real way.

AMY GOODMAN: It was a 9-to-0 decision. Sonia Sotomayor, Ruth Bader Ginsburg —

MATT STOLLER: Yeah, right.

AMY GOODMAN: — they sided with Neil Gorsuch in the majority.

MATT STOLLER: Right. So, there was probably a deal cut, because the standard that the Supreme Court chose was not quite as bad as the standard that Comcast wanted. And, I guess, in return for making the standard only terrible, instead of like absolutely egregious, my guess is that the four kind of Democrats went along with it.

But also, you know, you’ve got to recognize that there’s this sort of this impression among a lot of sort of liberals and Democrats that the members of the Supreme Court who were appointed by Democrats, like Ruth Bader Ginsburg or Stephen Breyer, are kind of unheroic. And they’re not. I mean, they’re terrible. They are — you know, Stephen Breyer was a super pro-monopolist who was heavily influenced by Robert Bork, far more right-wing than most Democrats on business questions and banking questions. Ruth Bader Ginsburg is a pro-monopoly extremist. That’s why she got a 96-to-2 confirmation when she was confirmed.

You know, the Democratic Party — I know there’s this sort of fantasy that the Democratic Party is — kind of like represents the people, and maybe they do some bad things, but they’re like — they’re not quite as bad as the Republicans. That’s a fantasy. It’s just not true. And you can see it when you actually look at corporate power, private power, where Democrats really just don’t pay attention or don’t care. And then, when they do act, they act in these really egregious ways. So that’s kind of like the — you know, and I think it’s very — it’s changeable. We can address it. It’s just that we have to start paying attention to it. It’s also changeable on both sides. I mean, the Republicans are changing, too. So, this is kind of an interesting moment, an interesting pivot point for America, where you’re seeing this ideological shift, but it hasn’t yet hit the institutions yet. But I think it will.

AMY GOODMAN: So, finally, Matt Stoller, you’ve written a lot about what’s coming to be called coronavirus capitalism — 


AMY GOODMAN: — and about how the pandemic is really exposing the economic structure in this country and how it made us more vulnerable to what’s happening right now. Explain your analysis.

MATT STOLLER: Yeah, so, I wrote a piece in The Nation in 2011 on the fragility of our supply chains. And my book, Goliath: The 100-Year War Between Monopoly Power and Democracy, is really focused on the physical nature of production, how we actually defeated the robber barons to build up the arsenal to democracy prior to World War II, a chapter in there called “Trustbusters Against Hitler,” you know, really trying to return us to the questions of how we make things, how we distribute things, how we sell things, what’s behind the supermarket shelf.

So right now we’re in this weird moment of consumer-oriented politics. And what we’re starting to see with the coronavirus is shortages, because we have mismanaged, consolidated our supply chains into monopolies and then offshored those, often to China, but not exclusively to China. And so now, when we need to make things, we can’t. A lot of us have been warning about this problem for quite a long time. It was fairly obvious in the early 2000s that it was happening. There were really serious problems that almost destroyed us after Sandy. New York was on the brink of starvation, and the food system came back just in time. We have had medical shortages for since 2005. We know about this problem. It has nothing to do with capitalism. That’s just kind of a brand that like a lot of the lefties like to throw around, because they don’t want to actually think about the physical nature of production. But it has to do with the fact that we used to make things in this country, and we did it in a decentralized way by using our antitrust laws, our banking laws, our regulatory power, to make sure that you didn’t have concentrated control. And then, in the 1970s and 1980s, the left decided that all they cared about was consumer rights and low consumer prices, and the right said the same thing: “That’s good, as long as we can concentrate corporate power.” And so, for the last 40 years, we’ve been concentrating power, consolidating power, and that means that you consolidate the supply chains, as well. And then they’ve been been — when you pool production, you also pool risk. And so, that’s what we’ve done.

And you’re starting to see we’re revisiting that. On the right, you’re seeing a much more aggressive approach to medical supply chains. So you’re seeing Marco Rubio and Josh Hawley, Mike Gallagher, Tom Cotton saying, “Hey, why is all our medicine made in China?” You see Tucker Carlson talking about it. I think, on the left, you’re seeing some members, like Mark Pocan, saying, “Hey, this is kind of weird.” You’re seeing a real debate now about how we do antitrust enforcement, because antitrust is the tip of the spear for a lot of the consolidation problems that we’ve faced. I mean, I think you’re going to see a real — you’re going to see a lot of changes in the foreign policy community, in the Pentagon, as they all of a sudden realize that they’re heavily dependent on China for all sorts of vital goods and services and weapon systems.

So, this is largely not a left-wing reimagining of our corporate system. This is actually more of a right-wing business and national security world reimagining of where we are. The left is largely not paying attention to this stuff. So I’m really glad you’re bringing me on and talking about it, because it’s actually really important. And we have to move away from that kind of weird consumer-oriented way of thinking and move back towards thinking about the physical nature of production. And that’s what we’re starting to do because of the supply chain problems.

AMY GOODMAN: Matt Stoller, I want to thank you for being with us, research director at the American Economic Liberties Project and author of Goliath: The 100-Year War Between Monopoly Power and Democracy. To see Part 1 of our discussion, go to I’m Amy Goodman. Thanks so much for joining us.

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“News for All the People”: Juan González & Joseph Torres on the Epic Story of Race & the U.S. Media

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