The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A recently enacted California law, AB 1687, requires websites that "provide employment services to an individual for a subscription payment" to stop publishing a subscriber's age whenever the subscriber so demands. In practice, this law was aimed at IMDb, which lets people in the entertainment industry post various résumé information online (via its IMDb Pro service) but also publishes biographical information about people—subscribers or not—including their ages. The law wasn't limited to information that IMDb learned through its relationship with subscribers; it also covered information that IMDb independently acquired.
It's difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content. Therefore, the burden is on the government to show that the restriction is "actually necessary" to serve a compelling government interest. [Footnote: The government has not argued that birthdates or other age-related facts implicate some privacy interest that protects them from public disclosure, and it's doubtful such an argument would prevail in any event.] The government is highly unlikely to meet this burden, and certainly nothing it has submitted in opposition to the preliminary injunction motion suggests it will be able to do so.
To be sure, the government has identified a compelling goal—preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all.
And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
[Footnote: The government casts AB 1687 as ordinary economic regulation falling outside First Amendment scrutiny. But IMDb Pro's commercial relationship with its subscribers has no connection to IMDb's public site, which relies on data obtained from third parties or from the public record. The government would perhaps be on stronger ground if AB 1687 were limited to preventing IMDb from misappropriating the data furnished by subscribers to its industry-facing site.]
Sounds right to me, though I'd go further and say that such a restriction on publishing truthful information would be unconstitutional even if it did combat age discrimination more effectively than other alternatives would. (Note that I signed on to an amicus brief in the case that supported this position; the brief was written by M.C. Sungaila, and was signed by, among others, noted liberal professor and University of California at Irvine dean Erwin Chemerinsky, our own David Post and the Reporters Committee for Freedom of the Press.