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California has filed its opposition to IMDb’s attempt to stop a controversial new law over the display of an actor’s age. The state tells a California federal judge that the statute is more about contracts than speech.
California Gov. Jerry Brown signed the law in September after Hollywood’s biggest actors’ guild lobbied for the change. SAG-AFTRA aimed to combat age discrimination by forcing certain websites to remove age information upon request.
In November, IMDb filed suit and demanded an injunction on enforcement. The Amazon.com subsidiary argues the law is “unconstitutionally over-inclusive because it requires IMDb to censor the factual age-related information of producers, directors, casting agents, and myriad other entertainment professionals, many of whom face no realistic risk of age discrimination from the publication of their ages on IMDb.”
IMDb has drawn support from the EFF, the First Amendment Coalition, the Wikimedia Foundation and The Center for Democracy & Technology. Meanwhile, SAG-AFTRA is looking to intervene in the case by being named as a defendant.
In a brief filed on Thursday, California’s deputy attorney general Anthony Hakl draws attention to exactly how the law functions. Most have assumed that any actor can request age removal, but the law specifically reserves removal requests to a “subscriber” of services that enters into a “contractual agreement to provide employment services to an individual.”
In other words, what IMDb Pro does when it allows actors to build profiles, showcase their talents, access contact information for agents and publicists, and so forth. A fee is charged, and what California is saying is that any of these customers have the right to tell the service to not post their ages on the IMDb platform as a whole, including the portion that the wider public can access without registration.
Nevertheless, some legal experts read the statute and conclude it is impermissibly targeting only IMDb, because of the lack of other public websites with a “companion” employment service quite like IMDb Pro. (Oddly, despite IMDb’s lawsuit, the statute arguably benefits the website by giving actors an incentive to pay for the premium version.)
Regardless, Hakl focuses on the fact that actors are contracting with IMDb Pro and asserts there is no First Amendment problem here.
“Simply stated, section 1798.83.5 involves a contract-based nondisclosure rule,” he writes. “It is a valid regulation of voluntary commercial contracts, and any incidental effect on speech does not implicate a First Amendment right. State regulation of commercial contracts is unremarkable, and IMDb should not be allowed to shield its commercial contract activity from legitimate commercial regulation simply by linking it with its own free, public information Web site. Finally, even if the law implicates the First Amendment, which it does not, it is nonetheless a lawful regulation of commercial speech. Section 1798.83.5 is a regulation that is no more extensive than necessary to further California’s substantial, indeed compelling, state interest in combatting age discrimination.”
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