How Old Are You? IMDB’s Free-Speech Battle Against a California Statute Begins
J. Austin Anderson, KLJ Production Editor[1]
A unique California law is being challenged in federal courts, and some serious constitutional issues are implicated. Long known for its robust entertainment laws, the state passed a bill near the end of 2016 which would forbid websites such as the Internet Movie Database (IMDB) from providing ages of actors and actresses to paid subscribers of the service.[2] Decision makers within the entertainment industry use this type of service when searching for a performer to play a particular role.[3] The logic behind the bill is 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.”[4] According to legislators behind the law, age discrimination is still prevalent in the entertainment industry despite federal and state statutes discriminating such practices.[5]
IMDB has already filed for a preliminary injunction of the law, arguing that it infringes on the company’s First Amendment rights and that it would “suffer irreparable harm without injunctive relief.”[6] The Screen Actors’ Guild, a major lobbyist for the bill, called the decision to sue “regrettable.”[7] However, at least for now, IMDB will be able to continue listing the ages of actors and actresses in their database; a federal judge granted a preliminary injunction to suspend enforcement of the law until the case can be heard later this year.[8]In granting the preliminary injunction, the judge speculated on what the result of the case would be, opining that “[i]t’s difficult to imagine how AB 1687 could not violate the First Amendment.”[9] The judge also made the noteworthy determination that the law was a restriction on non-commercial speech on the basis of content.[10] This, of course, means that the statute will be examined under the lens of strict scrutiny.[11] A strict scrutiny analysis creates a major uphill battle for the state and its interested parties.[12] The state must be able to show that the statute is narrowly tailored to serve a compelling government interest, and that there are no other less–restrictive alternative methods that achieve their goal.[13] The state will almost certainly argue that IMDB is engaged in commercial speech which would remove the case from the arena of strict scrutiny, but the judge seems to believe that the strict scrutiny approach is appropriate.[14]
Under a strict scrutiny analysis, just about the only prong of the test the state seems to meet is the fact that limiting employment discrimination is a legitimate government interest.[15] It is unlikely that the state will be able to meet its burden in showing that the statute actually curbs age discrimination in any way or that withholding information that is otherwise widely available to the public is the least restrictive method of achieving their goals.[16]If the court decides that the statute is constitutionally invalid, the lobbies behind it will assuredly appeal and keep pressing the issue. One spokesperson called this suit “an early skirmish in what will be a long-term battle to ensure that entertainment industry workers are granted the same minimum employment protections as all other workers.”[17] Regardless of the outcome, this fight looks to be a lengthy one, which could very well end up in front of the Supreme Court.[1] J.D. Expected May 2018.[2] Cal. Civ. Code § 1798.83.5 (West 2017).[3] Todd Spangler, IMDB to Raise Price of IMDbPro with Addition of Casting Tools, Variety (Mar. 11, 2015, 12:45 PM), http://variety.com/2014/digital/news/imdb-raises-price-of-imdbpro-with-addition-of-casting-tools-1201129433 (demonstrating the prevalence of IMDbPro within Hollywood casting circles).[4] Cal. Civ. Code § 1798.83.5 (West 2017).[5] Bryan Sullivan, IMDb Refuses to Comply with California’s Age Discrimination Laws, Forbes (Jan. 11, 2017, 2:41 PM), https://www.forbes.com/sites/legalentertainment/2017/01/11/amazon-owned-imdb-in-age-discrimination-battle-with-state-of-california/#7a3ed3eead34 (quoting Majority Leader Ian Calderon: “Even though it is against both federal and state law, age discrimination persists in the entertainment industry. AB 1687 provides the necessary tools to remove age information from online profiles on employment referral websites to help prevent this type of discrimination.”).[6] Petitioner’s Motion for Injunctive Relief at 13, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 16, 2017).[7] Dave McNary, IMDb Sues California to Invalidate Actor-Age Law, Variety (Nov. 10, 2016, 3:45 PM), http://variety.com/2016/film/news/imdb-sues-california-actor-age-law-1201915252.[8] See generally Order Granting Plaintiff’s Motion for Preliminary Injunction, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 22, 2017).[9] Id. at 1.[10] Id.[11] See, e.g., United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000).[12] Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 844 (2006) (finding that only 22% of statutes that restrict free speech based on content survive strict scrutiny).[13] United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000).[14] Dave McNary, IMDb Sues California to Invalidate Actor-Age Law, Variety (Nov. 10, 2016, 3:45 PM), http://variety.com/2016/film/news/imdb-sues-california-actor-age-law-1201915252 (“IMDb is engaged in commercial speech and in a commercial transaction with its subscribers, and the State of California is well within its rights to regulate that transaction, especially when the abuse of that relationship has such devastating effects on California workers.”).[15] Order Granting Plaintiff’s Motion for Preliminary Injunction at 2, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 22, 2017).[16] Id.[17] Dave McNary, Judge Pauses Enforcement of IMDb Actor Age Censorship Law, Variety (Feb. 22, 2017, 4:14 PM), http://variety.com/2017/film/news/imdb-actor-age-law-injunction-1201994192.*Featured image by , licensed under CC BY-SA 3.0.