The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Friday's decision (which I think is generally quite correct) in IMDb.com v. Becerra, written by Judge Bridget Bade and joined by Judges Johnnie Rawlinson and Mark J. Bennett:
In 2016, the State of California—at the behest of the Screen Actors Guild …—enacted Assembly Bill 1687 …, which prohibits a specified category of websites from publishing the ages and dates of birth of entertainment industry professionals. The statute appears to target a single entity: IMDb.com Inc….
The statute imposes two separate but closely related prohibitions.
First, it forbids the publication of age information (upon request) on paid-for subscriber profiles hosted by a "commercial online entertainment employment service provider." The State and SAG largely focus on this portion of the statue, which restricts IMDbPro. But the parties do not dispute that IMDb already affords its subscribers the option to remove their ages from their IMDbPro profiles (but not from any companion profile on the public site) and that it has done so since 2010. There has been no suggestion that IMDb would change this policy in the absence of AB 1687.
Second, the statute prohibits a provider from publishing age information on any public "companion" website, such as IMDb.com, without regard to the source of the information. IMDb contests this provision…. Because this aspect of the statute presents the central issue on appeal, we focus our inquiry here….
The court concluded that the law was a content-based speech restriction, because "[i]t prohibits the dissemination of one type of speech: 'date of birth or age information,'" and, "perhaps more troubling, it restricts only a single category of speakers."
We are unpersuaded by the State's and SAG's argument, relying on Cohen, that the statute merely regulates contractual obligations between IMDb and subscribers to IMDbPro…. [T]he statute reaches far beyond the terms of any subscriber agreement. It applies not only to paid-for profiles—like those on IMDbPro—but also to entries on the publicly available, non-subscription site IMDb.com, regardless of agreement between IMDb and its subscribers.
The statute does not restrict only information misappropriated through the parties' contractual relationship; it also prohibits the publication of information submitted by members of the public with no connection to IMDb. These restrictions apply regardless of whether an IMDb public profile existed independent of, or prior to, any contractual agreement between IMDb and an IMDbPro subscriber.
The court concluded that the law wasn't limited to "commercial speech," because that category covers speech that "does no more than propose a commercial transaction," and "public profiles on IMDb.com do not 'propose a commercial transaction,'" "even assuming IMDb has a financial interest in its public profiles."
The law also wasn't limited to "speech that itself proposes an illegal transaction," even though the government argue that this information might facilitate age discrimination by producers: "[W]e find nothing illegal about truthful, fact-based publication of an individual's age and birthdate when that information was lawfully obtained," even if "a third-party might use [the speech] to facilitate its own illegal conduct." "[I]t would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party." … "[T]he fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech."
And the speech couldn't be restricted on the grounds that "it restricts only speech of a purely private concern":
[N]either this court, nor the Supreme Court, has held that content-based restrictions on public speech touching on private issues escape strict scrutiny. We decline to create such a broad category of speech entitled only to reduced protection and allow expanded restrictions on content-based speech….
Although many state and federal statutes "regulate data collection and disclosure" without implicating the First Amendment, such statutes regulate the misuse of information by entities that obtain that information from individuals through some exchange. See, e.g., 18 U.S.C. § 2710 (prohibiting disclosure of personally identifiable information obtained in the course of video tape rental); 47 U.S.C. § 551 (cable subscribers); 20 U.S.C. § 1232g (educational agencies); 15 U.S.C. §§ 6501–6506 (websites). Such restrictions differ significantly from AB 1687, which by its terms prohibits the publication of information without regard to how it was obtained.
Similarly, the plethora of Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, cases cited by the State and SAG do not implicate prohibitions constrained by the First Amendment. Rather, FOIA cases typically ask whether, as a matter of statutory interpretation, the government must affirmatively disclose personally identifying information. This case poses a different question entirely: whether a state can prohibit the dissemination of lawfully obtained information, albeit that of a private character.
The case that may provide the best support for the State's contention is Trans Union Corp. v. FTC (D.C. Cir. 2001). But Trans Union Corp. is distinguishable. There the D.C. Circuit rejected a First Amendment challenge against provisions of the Fair Credit Reporting Act limiting the ability of credit reporting agencies to sell consumers' private personal information. In upholding the statute, the court applied intermediate scrutiny. But although the court acknowledged the consumers' privacy interests in the data, its analysis focused on the commercial nature of the speech at issue. Moreover, the "speech" at issue—the sale of data—was itself an inherently private exchange between private parties.
Here, in contrast, IMDb posts the information on its website free of charge for the public to review. This fact alone imparts an inherently public character to the speech at issue.
We set a high bar for cordoning off new types of speech for diminished protection. Thus, although the courts have recognized some conflict between the First Amendment and privacy interests, we lack the "persuasive evidence" in this case that would permit a content-based prohibition of age information without subjecting that restriction to strict scrutiny.
Finally, the court held that the law doesn't pass strict scrutiny:
Because the State "has various other laws at its disposal that would allow it to achieve its stated interests while burdening little or no speech," it fails to show that the law is the least restrictive means to protect its compelling interest….
Similarly, a state fails to narrowly tailor a speech-restrictive law where it eliminates one form of speech "while at the same time allowing unlimited numbers of other types … that create the same problem." On its face, AB 1687 restricts only websites like IMDb.com while leaving unrestricted every other avenue through which age information might be disseminated. This presents serious concerns here because AB 1687 appears designed to reach only IMDb…. "Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." …
Accordingly, AB 1687 is underinclusive because it fails to reach several potential sources of age information and protects only industry professionals who both subscribe to such service and who opt-in….
Here, it does not matter that AB 1687 would accomplish what it sets out to do. An unconstitutional statute that could achieve positive societal results is nonetheless unconstitutional…. "Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech." …
Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional. Here, we address content-based restrictions on speech and hold that AB 1687 is facially unconstitutional because it does not survive First Amendment scrutiny….
Disclosure: I signed on to an amicus brief, written pro bono by Mary-Christine Sungaila, Polly Fohn, and Natasha Breaux (Haynes and Boone LLP) supporting the result that the court eventually reached.