Northern District declares recent legislation unconstitutionally restrictive of speech

Back to the Peach Pit

If you’re of a certain age – we ourselves admit nothing, of course – but if you are of a certain age, you might have once watched “Beverly Hills 90210.” Perhaps you’re embarrassed by the devotion you felt for the show.

Perhaps you watched, seething, in a fit of ’90s irony. Still, either way – you watched it. Don’t say you didn’t.

You probably remember the character Andrea, a bookish valedictorian and school paper editor.

That character, a 15-year-old student, was played by a 29-year-old actress. Today, Gabrielle Carteris, the actress who once concealed her age to play Andrea, serves as the president of SAG-AFTRA, the largest entertainment union. And so it may not come as a surprise that she and her union lobbied hard for a recently passed California law that aims to end age discrimination by preventing the publication of actors’ ages online.

Movie Target 

The law, AB 1687, which was signed by Governor Jerry Brown in 2016, prohibited “commercial online entertainment employment service providers” from publishing or making public the date of birth or age of the subscribers.

The law set off alarm bells over at the Internet Movie Database, better known as, an online institution and one of the most popular websites in the world. In addition to being an exhaustive resource for settling every sort of movie-trivia dispute, IMDb grew to become an important tool for the entertainment industry. Its private pay service, IMDbPro, connects industry professionals – subscribers – with Hollywood honchos.

IMDb filed suit against California in the state’s Northern District to invalidate the law on constitutional grounds and render it unenforceable. IMDb’s argument: The law narrowly targets public, verifiable information – age – for censorship without a compelling public interest. The complaint urged the legislature to enforce or bolster existing anti-discrimination laws to target discriminatory behavior rather than limit public information about a group that includes both victims and non-victims of age discrimination.

In addition, the complaint alleged, AB 1687 was worded in such a way as to require that age information be scrubbed not only from the subscriber’s IMDbPro page but also from the public side of the site. This is in spite of the fact that subscribers have had the option to delete their ages from their IMDbPro pages since 2010, and that non-subscription services – think Wikipedia – would provide the same information and would not be constrained by the law’s requirements.

The Takeaway

The complaint, filed in November 2016, won IMDb a preliminary injunction preventing California from enforcing the statute; in late February 2018, the court granted IMDb’s motion for summary judgment in a strongly worded order.

The court noted the option for IMDbPro subscribers to remove their age, concluding that the law “cannot properly be considered a regulation of voluntary commercial contracts rather than a speech restriction.” Moreover, the law wasn’t aimed at commercial speech, since the information on the public site wasn’t related to a commercial transaction. And the possibility of misuse by a third party is rarely enough to justify suppression of speech, the court noted.

“AB 1687 is clearly unconstitutional,” the court maintained; it violated the First Amendment by failing to further a compelling interest and was not narrowly tailored to achieve that interest. “Rather than clarify what antidiscrimination law requires of employers in the entertainment industry, which would directly support the state’s compelling interest in ensuring those employers don’t discriminate, the legislature decided to censor a source of truthful information,” the court held.

The worst cut was saved for last. The court reframed the underlying conflict addressed by the law as a matter of sex discrimination rather than age discrimination. Women were being discriminated against specifically – men typically weren’t the subjects of age discrimination. Older actresses, not actors, were being punished. “If the government is going to attempt to restrict speech,” the court said, “it should at least develop a clearer understanding of the problem it’s trying to solve.”

The union promised to appeal the order.