The court found the law, designed to limit age discrimination in the entertainment industry, unconstitutionally restricts speech because it prevents websites like the Internet Movie Database from publishing the ages and birth dates of industry professionals.
The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) had sponsored AB 1687. The law would have regulated the publication of age-related information in the entertainment industry. The Ninth Circuit noted that the “statute appear[ed] to target a single entity: IMDb.com Inc.”
Age discrimination is obviously a pervasive and serious problem. However, upholding the law would have had major implications for First Amendment protections. Furthermore, it is doubtful that AB 1687 would have seriously lowered the instances of age or gender discrimination.
Overview of IMDb.com, IMDbPro, and AB 1687
IMDb.com provides a comprehensive internet database of information about movies, television shows, and other entertainment, as well as biographical information on many actors and crew members. Profiles often include the person’s age or date of birth. The information is largely supplied by users of the site.
IMDb also has a subscription service called IMDbPro. IMDbPro subscribers can create an online resume, including headshots, demo reels, and employment history. Casting agents and producers can access these profiles to hire actors and crew.
Under AB 1687, upon the request of a paid subscriber, IMDb would be barred from displaying his or her age or date of birth on IMDbPro or “any companion Internet Web sites under its control,” including the publicly available IMDb.com website. IMDb.com’s policy had been to honor requests to remove age information only from IMDbPro profiles.
The Ninth Circuit’s Opinion
In IMDb.com, the Ninth Circuit found that AB 1687 implemented a “content-based restriction on speech,” namely age information, and, “perhaps more troubling, it restricts only a single category of speakers” and that the strict scrutiny standard applied.
The Ninth Circuit rejected analogies to laws enforcing contracts that restrict speech. AB 1687 imposed conditions not contained in any subscriber agreement and barred the display of age information regardless of its source.
The court also rejected that the law only implicated commercial speech. IMDb did not display the age-related information as part of a transaction or advertisement. The court further rejected the argument that the law would merely regulate activity that facilitates illegal conduct. That “a third-party might use [the speech] to facilitate its own illegal conduct” is insufficient.
Additionally, the court refused to recognize an exception to strict scrutiny for “public speech touching on private issues.”
Under the strict scrutiny test, the Ninth Circuit, like the district court, found that preventing age discrimination is a compelling governmental interest. However, the Ninth Circuit found that the state gave little consideration to whether the law was the least restrictive method to achieve its policy goals. The Ninth Circuit was also critical that the law targeted only IMDb and only provided protections for paid subscribers.
Impact of the Decision
SAG-AFTRA intervened in the case. SAG-AFTRA’s opening brief emphasized the magnitude of the problem of discrimination and attempted to frame the case as a referendum on whether age discrimination is acceptable.
For example, SAG-AFTRA unfairly stated that the judge “flatly denied that age discrimination is an issue in the entertainment industry requiring abatement.” In fact, District Judge Vince Chhabria (an appointee of President Obama and former law clerk to Supreme Court Justice Stephen Breyer) found that “the government has identified a compelling goal—preventing age discrimination in Hollywood.” See order granting preliminary injunction (Feb. 22, 2017).
Age discrimination and gender discrimination are obviously pervasive and serious problems. However, it seems doubtful that AB 1687 would have meaningfully helped. In their briefing, neither SAG-AFTRA nor the state provided any serious rebuttal to an obvious argument: It is easy to find people’s age on the internet without the help of IMDb.
The state asserted in its opening brief that “well-known celebrities’ ages and birthdays can be found online, [but] nothing in the record suggests that is universally the case for other entertainment professionals.” While perhaps not “universally,” common experience is that it is easy to find the age of most people. The state was defending a law targeting speech. It should have presented evidence justifying the necessity of the law, and not pointed to the lack of evidence against the state’s position.
In contrast to the doubtful reductions in discrimination, upholding the law would have had major implications on First Amendment rights. It would be a remarkable precedent to uphold a law banning the dissemination of truthful information already publicly available.
The U.S. Supreme Court has protected the publication of the identity of children being prosecuted in juvenile proceedings as well as crime victims when the information had been made available in court proceedings, even if only to a limited audience. Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The Supreme Court even protected a publisher that knew a source had obtained information illegally. Bartnicki v. Vopper, 532 U.S. 514 (2001).
The California Assembly especially seemed to have thought little of free speech implications. This seems strange in a state known for its strict anti-SLAPP law targeting lawsuits that inhibit free speech rights. In the various analysis of the law from the Assembly, only one contained a reference to free speech rights, and it was two sentences about the commercial nature of the speech.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Scott Lesowitz, a former assistant U.S. attorney for the Southern District of California, is a founding partner of Lesowitz Gebelin LLP where he practices civil litigation, IP, and internet-related law in Los Angeles.