By Andrew Jadick (Rutgers Law student)
On February 22, 2017, a US District Court issued a ruling invalidating a law making it illegal for the website IMDB to publish the ages of actors. This law was enacted by the California legislature in order to combat rampant ageism in the film and television industry. According to a study by Time magazine, the careers of female actors peak at age 30, while male actors reach their career peaks at 46. While many notable actors have spoken out against this problem, it is even more of an obstacle for lessor-known actors, who can have significant trouble getting auditions based solely on their age.
Seeking to tackle this issue of ageism in Hollywood, the California legislature passed a law known as AB 1687 on September 24th, 2016. This law went into effect January 1st, 2017, and dictates that “information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.” This law was narrowly crafted to apply only to “commercial online entertainment employment providers” that charge a “subscribers” fee, as well as their free companion sites. The only major public site that appears to be affected by the law is IMDb.com, which has thus far refused to comply. As noted by the federal court however, it does not seem like this bill would pass constitutional muster.
IMDb Pro is a service that many entertainment industry professionals use to contact each other, and is a major source for casting directors to find potential actors for auditions. IMDb actor profiles include copious amounts of information on actors, including date of birth. The hope is by targeting this service, and forcing them to remove the age information of paying subscribers who request such, there will be less blatant age discrimination in the film and television industry. Though one might rightly point out that actors’ ages are easy to find out from a multitude of sources, the law mainly seeks to protect “working-class” actors who are just trying to get their foot in the door, and whose age information is only easily available on IMDb. As these individuals are not well known, their information would be much more difficult to find on public websites.
However, IMDb has not complied with this law, and has refused over 2,000 requests to remove age information from profiles. In January they filed for a preliminary injunction stopping the Attorney General of California from enforcing the law, which was later granted. Instead of tackling unfair industry practices, the website argued that the state had “chosen instead to chill free speech and to undermine access to factual information of public interest.” It alleges that the law violates the First Amendment guarantee to freedom of speech, and therefore it should not be enforced.
One of the advantages of the law is that it seems to be narrowly tailored; the wording only practically affects this specific site for now, which is the main source of information hiring parties use. It has also been argued that because the speech on IMDb is “distributed in order to propose a commercial transaction” (hire this actor), this information could be construed as commercial speech, which is subject to less constitutional protection. Under Central Hudson Gas & Electric Corp. v. Public Service Commission, a regulation of lawful commercial speech can stand only if it directly advances a substantial state interest and does so using a technique in proportion to that interest. Reducing age discrimination seems to be a substantial government interest, and the bill only affects paid subscribers, so the law is arguably constitutional.
However, other aspects of the bill show that it is in fact not constitutional. As noted by Judge Vince Chhabria of the Northern District of California, a major reason for this is that though the state does have a compelling goal, the bill is not “necessary” to advance that goal and it would not meaningfully combat discrimination. The judge clearly did not buy that state’s argument that such speech was commercial, and so applied strict scrutiny to the law rather than intermediate (where they would only have to prove the law was substantially related to an important objective.
In the continuing legal battle over this law, it is not likely that the state will be able to prove constitutionality in light of the current injunction. In addition to the reasons stated by the federal judge, the means of the law only give the power to censor to paying subscribers; free users are not protected. Further, there may be a better method legislation could use, such as directly regulating discrimination rather than enacting laws restricting speech. All in all, though the legislature did attempt to narrowly tailor the bill to protect a substantial interest, the constitutional protections of free speech lean towards the law being unconstitutional, as it only seeks to censor factual information and does not effectively address the root cause of the issue it seeks to rectify.