Just four days after the Actor Age Censorship Law (AB 1687) took effect on New Year’s Day, the controversial anti-age discrimination statute was forced to bear arms as IMDb, the world’s most popular entertainment database, took aim alleging the law infringes its right to free speech. Since AB 1687 was passed last September, more than 2,300 subscribers have reportedly demanded IMDb to remove their ages.
AB 1687 prohibits subscription-based online entertainment employment providers from posting actors’ ages. Critics argue it targets IMDb and IMDb Pro as they are the only widely-known sites that permit subscribers to post resumes, headshots or other information for prospective employers with an express policy against removing accurate ages and birth dates. Most competitor websites either do not permit actors to subscribe or already allow users to remove their ages.
On January 5, IMDb filed a motion for a preliminary injunction in the Northern District of California claiming a high likelihood its constitutional legal challenge will succeed on the merits and irreparable injury if the site were required to remove actors’ ages during the course of the case, which could span years. IMDb’s chief contention is that the law is a content-based regulation of speech subject to strict scrutiny, a test only a handful of laws in the history of American jurisprudence have passed. Conversely, if the publication of actors’ ages is categorized as commercial speech, it triggers a form of intermediate scrutiny.
In the seminal decision of Central Hudson, the U.S. Supreme Court defined commercial speech as “speech proposing a commercial transaction.” Although many find it hard to construe posting an actor’s age as a commercial transaction as defined in Hudson, SAG-AFTRA Chief Operating Officer and General Counsel Duncan Crabtree-Ireland took a broader view of commercial speech in his interview with the Hollywood Reporter. “IMDb Pro and IMDb.com are intimately entwined and interconnected” he said. “Both sites are commonly used by the casting community and both sites generate revenue for IMDb from a variety of sources, including the sales of subscriptions to the Pro service itself, as well as parent-company Amazon’s product line.”
Still, even if this speech is considered “commercial,” the Hudson Court found the regulation of truthful commercial speech is valid only if it directly advances a substantial state interest. Opponents of the suit, including SAG-AFTRA, which has asked to join the case as a defendant, claim reducing age discrimination is a substantial state interest and the law’s narrow limitation to only subscription-based websites renders it sufficiently tailored.
IMDb disagrees and claims the law is under-inclusive in that it leaves numerous websites that do not sell subscriptions free to post actors’ ages for the industry to see and consider in making hiring decisions. At the same time, IMDb argues the law is over-inclusive because it requires the site to remove the ages of all subscribers, even those who are not actors like directors, producers and casting agents who do not face a similar degree of age discrimination.
The preliminary injunction hearing is currently scheduled for February 16, 2017.