Can California ban people from publishing the ages of Hollywood stars? A federal court is currently considering whether the state can stop the practice without running afoul of the First Amendment.
At issue is a 2016 law (Assembly Bill 1687) ostensibly designed "to ensure that information obtained on an Internet Web site regarding an individual's age will not be used in furtherance of employment or age discrimination."
But rather than address age discrimination per se, the law simply bans certain types of websites from publishing accurate age information about certain classes of entertainment workers. As such, it "sets a dangerous and unconstitutional precendent," claim lawyers for the Internet Movie Database (IMDb), "and should be deeply troubling to all who care about free speech."
The law's supporters singled out IMDb as a primary target. In addition to its massively popular free website, IMDB also offers a professional subscription service to actors, casting directors, makeup artists, and other entertainment professionals.
The way the new law was written, random websites that publish the ages of entertainment professionals are still in the clear. But any "online entertainment employment service provider" that accepts payment for its services falls under the measure's purview. For such individuals or entities, paid-user requests to remove age information must be honored within five days or else the site risks civil and criminal penalties. These providers are also barred from sharing age info with or publishing it on other sites.
"Rather than passing laws designed to address the root problem of age discrimination, the State of California has chosen to chill free speech and undermine public access to factual information," IMDb states in a suit challenging the constitutionality of the measure. "AB 1687 does not prohibit the discriminatory use of information, but instead forces the removal of factual information from the public domain."
The state said in a recent motion that the law was simply a "contract based nondisclosure rule."
But "while the law may encompass some information exchanged within the subscriber relationship, it sweeps much more broadly, preventing IMDb or third parties from posting age and date of birth information, regardless of its source," IMDb stated in an August 10 motion.
U.S. District Judge Vince Chhabria has already blocked California from enforcing the law while the case is ongoing.
At best it would seem the law is unneccessary, at least in terms of getting IMDb to delist ages. In order to gain the right to request such a thing, someone would have to be a paid subscriber to IMDbPro. And paid IMDbPro subscribers can already have their ages removed from their profiles. Meanwhile, a non-subscriber who wants their age removed is (still) legally out of luck.
Considering this—plus the fact that any non-subscription site can publish ages with impunity—and the idea that this new law will somehow hinder age-discrimination in the entertainment industry becomes laughable.
Still, that's the story California Attorney General Xavier Becerra and the Screen Actors Guild–American Federation of Television and Radio Artists (SAG-AFTRA), which has joined in the state's opposition to IMDb, are sticking with.
Becerra argued to the U.S. District Court for the Northern District of California that "if [the bill] is to be considered a speech regulation, it is a valid commercial speech regulation," because the legislature found "the problem of age discrimination in the entertainment industry to be real, adopted the provision to aid in solving that problem, and matched the restriction to the problem to be addressed."
In its own motion, SAG-AFTRA complained that IMDB "contends it has an absolute First Amendment right to disseminate the ages of everyone in Hollywood, consequences be damned, and no matter how much or little value such expression has in the marketplace of ideas." But "so long as the communication of the age of persons in the entertainment industry writ large facilitates illegal age discrimination, such expression may be regulated consistent with the First Amendment even though specific communications might not be discriminatory."
Note that the Actors Guild doesn't claim that IMDb publishes age information that's false, nor that it publishes true information obtained in an illegal manner. Rather SAG-AFTRA asserts that IMDb somehow has a legal responsibility to help actors obtain work by concealing their ages; that the state has the ability to judge what kinds of content have "value" in the "marketplace of ideas"; and that information of "little value" can be banned.
The district court will have to decide whether the state's solution represents a narrowly tailored solution to a legitimate public policy problem or an unconstitutionally broad restriction on speech.
IMDb has provided a host of arguments for why it's the latter:
- it "censors the publication of truthful information that is in the public interest";
- it is "unconstitutionally overinclusive," since it "applies equally to producers, directors, casting agents, and various other entertainment professionals of all ages, many of whom face no realistic risk of age discrimination beyond that of the general public";
- it is "unconstitutionally under-inclusive," since "it does nothing to restrict the ready availability of the same factual age information from other public sources";
- and "the state cannot prove that it is 'actually necessary' to serve its goal of combating age discrimination."
The next hearing on the case is scheduled for October 26. Per the judge's preliminary injunction on the law's enforcement, IMDB is expected to prevail.