California’s Actor-Age Censorship Law (AB 1687), which would have required IMDb.com to remove age-related information from its web pages, was declared unconstitutional by a district court last month on free speech grounds.
SAG-AFTRA vigorously campaigned for the law, which it claimed would mitigate age discrimination in Hollywood. Within two months of the law taking effect in 2017, IMDb obtained a preliminary injunction and later filed for summary judgment claiming the legislation impermissibly restricted its First Amendment rights. Judge Vince Chhabria of the Northern District of California agreed.
Although Chhabria acknowledged the law may be well-intentioned, he applied strict scrutiny and found the law is not narrowly tailored to eliminate age discrimination in the industry.
The law is under-inclusive, Chhabria determined, because it targets solely IMDb rather than other online sources which would remain free to broadcast an actor’s age. The law also required IMDb to remove age-related information of an actor only if he or she requests the information be removed, yet the site would remain free to publish the birthdates of non-subscribers and, in theory, leave those individuals vulnerable to potential discrimination.
Chhabria found the law to be over-inclusive because it requires IMDb to remove ages of all requesting subscribers, including those under 40 who are not protected by the state’s anti-discrimination laws.
Further, Chhabria viewed the law as a direct restriction on speech prohibiting IMDb from publishing truthful information that is often supplied by the public because of speculation that a third party might use the information for unlawful purposes. “There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination,” Chhabria found.
Supporters of the law argued it regulates commercial speech and honors the contract between subscribers and IMDb who, by subscribing to the database, can select what information about them is displayed to the public. Chhabria was not persuaded. “The speech at issue is factual information about entertainment professionals, conveyed… in a manner unconnected to any commercial transaction,” he wrote. Further, the law requires IMDb to remove age-related information from its website regardless of the source of the information and, accordingly, “expressly contemplates that it will impact not just information obtained pursuant to a contractual relationship, but also information provided by members of the public,” Chhabria wrote.
In dicta, Chhabria observed the law’s legislative materials repeatedly cite an article discussing sex discrimination in the entertainment industry and opined that, although the law facially targets age discrimination in Hollywood, the actual purpose of the law is to combat sexism. “The defendants barely acknowledge this,” Chhabria noted, “much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women.”
SAG-AFTRA’s general counsel Duncan Crabtree-Ireland stated the union is “extremely disappointed with [the] ruling.” He added, “the Court unfortunately fails to understand or recognize the massive impact gender and age discrimination has on all working performers. That discrimination is facilitated by IMDb’s insistence on publishing performers’ age information without their consent…”.
SAG-AFTRA and the State of California are expected to appeal this decision to the Ninth Circuit.