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from the guess-what-your-tax-dollars-have-been-up-to,-Californians dept

The state of California has lost again in its attempt to punish IMDb (the Internet Movie Database) — and IMDb alone — for ageism perpetrated by [checks notes] movie studios who seem to refuse to cast actresses above a certain age in choice roles.

The law passed by the California legislature does one thing: prevents IMDb (and other sites, theoretically) from publishing facts about actors: namely, their ages. This stupid law was ushered into existence by none other than the Screen Actors Guild, capitalizing on a (failed) lawsuit brought against the website by an actress who claimed the publication of her real age cost her millions in Hollywood paychecks.

These beneficiaries of the First Amendment decided there was just too much First Amendment in California. To protect actors from studio execs, SAG decided to go after a third-party site respected for its collection of factual information about movies, actors, and everything else film-related.

The federal court handling IMDb’s lawsuit against the state made quick work of the state’s arguments in favor of very selective censorship. In only six pages, the court destroyed the rationale offered by the government’s finest legal minds. Here’s just a sampling of the court’s dismantling of this stupid law:

AB 1687 is a direct restriction on speech. The law prohibits certain speakers from publishing certain truthful information – information that, in many instances, is supplied by members of the public – because of concerns that a third party might use that information to engage in illegal conduct.

[…]

SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts “facilitate” age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact.

The court also pointed out that the law targeting IMDb did nothing to address the underlying problem. In fact, it appeared the state wasn’t even addressing the right problem.

The defendants describe this as a problem of “age discrimination.” While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don’t typically refuse to cast an actor as a leading man because he’s too old for the leading woman; it is the prospective leading woman who can’t get the part unless she’s much younger than the leading man. TV networks don’t typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it’s a manifestation of the industry’s insistence on objectifying women, overvaluing their looks while devaluing everything else.  

The state appealed and the Ninth Circuit Appeals Court is no more impressed than the lower court. (h/t Courthouse News Service)

Content-based restrictions are generally First Amendment violations. So is the targeting of certain speakers and very specific speech emanating from them. From the opinion [PDF]:

On its face, AB 1687 restricts speech because of its content. It 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. Thus, AB 1687 “impose[s] direct and significant restrictions” on a category of speech. It does not apply generally.

The state argued that this only affected subscribers to the site who paid to control the information contained in their profiles. The Appeals Court says this doesn’t matter. The law targets more than paid accounts. It forbids the dissemination of age information contributed by third parties.

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.

Even if money changes hands for paid accounts, the speech being targeted is not “commercial” speech. The site refers to itself as a “database” for a reason. And that nullifies the state’s argument.

These free, publicly available profiles are found in an “online database of information” and are surrounded by content that “includes information on cast, production crew, fictional characters, biographies, plot summaries, trivia and reviews.” The content is encyclopedic, not transactional.

The court also dispenses with the state’s argument that the publication of age information allows other parties to engage in illegal discrimination. And it does so by pointing out the obvious: the target of anti-discriminatory laws should be the entities that actually engage in discriminatory behavior.

If accepted, SAG’s interpretation of Pittsburgh Press would require this court to permit the restriction not only of speech that proposes an illegal activity but also facially inoffensive speech that a third-party might use to facilitate its own illegal conduct. […] Rather than restrict truthful speech, the typical “method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.”

The court also notes that the law appears to have been crafted specifically to prevent one site from publishing age information. That’s not what “narrowly-tailored” means in the First Amendment sense of the phrase. Narrow tailoring can impose speech restrictions that pass the First Amendment test. Targeting one site while leaving others free to publish what the law says IMDb cannot isn’t Constitutional.

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.

[…]

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. This malady means that the statute is not narrowly tailored, and thus, is unconstitutional.

And that’s it for California’s extremely bad law.

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.

Even if the law had somehow survived a First Amendment challenge, it still wouldn’t have prevented studios from engaging in discriminatory hiring practices. If this was really the state’s concerns, it would have stepped up its regulation of the entertainment industry, rather than a single site that was unsuccessfully sued by an actress, who speculated IMDb’s publication of her age was the reason she wasn’t landing the roles she wanted.

Filed Under: 1st amendment, 9th circuit, ab 1687, actors, age, california, free speech, imdb, truthful information
Companies: amazon, imdb, sag-aftra

Categories: Technology