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According to IMDb, Tom Cruise was born on July 3, 1962. That makes him 57 years old. Such information is unlikely to disappear from the digital sphere based on an oral argument on Monday before the 9th Circuit Court of Appeals.
The federal appeals court is the latest to take up AB 1687, which California lawmakers passed in 2016 in an effort to crack down on age discrimination in the entertainment industry. Under the law, a provider of online entertainment employment services must remove the age of any subscriber who so requests. IMDb, a subsidiary of Amazon.com, operates a premium site for professionals, meaning that under this law, Hollywood actors and actresses have an avenue to censor age-related information on IMDB.com, a website for all to see.
In 2018, a federal judge ruled AB 1687 to be unconstitutional under the First Amendment.
On Monday, the office of California’s attorney general as well as SAG-AFTRA attempted to convince a three-judge panel at the 9th Circuit to come to a different conclusion.
The bid to revive the age-censorship law didn’t go well with all three judges expressing great skepticism.
Circuit Judge Bridget Bade questioned how the law “sweeps broadly,” applying even beyond contractual relationships while her colleague, Mark J. Bennett, noted how the age information could be found on other sites like Wikipedia, which wouldn’t be regulated by California’s law. Johnnie Rawlinson, the third judge on the panel, also struggled to understand how the law in question truly stopped discrimination and whether there might be better and more direct ways to address age bias.
In other words, the law is both overinclusive and underinclusive — and Deputy Attorney General Amie Medley struggled to address sharp questioning on how AB 1687 was an effective means to an ends.
Douglas Mirell, an attorney representing SAG-AFTRA, took his own shot by discussing how IMDb touts itself as the “bible for age-related information.” As such, in his view, California lawmakers are within their rights to have IMDb in their sights. Mirell also nodded to IMDb’s argument that because AB 1687 won’t impact Wikipedia, California lawmakers haven’t really addressed a problem. Overinclusive? Underinclusive? “They can’t have it both ways,” he said.
Mirell also made the primary argument that what California intended to do with AB 1687 was to regulate a relationship between IMDbPro and its subscribers, and thus, the law only pertains to commercial speech. Under this framework, a court needn’t apply strict scrutiny to the regulation of speech.
But the law tells IMDb what can’t be posted on its public-facing website.
“How is it commercial speech when they are not charging people to access it?” asked Bennett.
Mirell responded by saying the website was the source for Hollywood casting directors.
“So if you are successful, then you are commercial?” asked Bade.
“No, not based on success, but based on what it’s used for,” replied Mirell.
John Hueston, the attorney representing IMDb, encountered much less aggressive questioning from the judges. He was asked for a response to the issue of whether California was regulating commercial speech. The judges also attempted to alleviate confusion about whether IMDb was misappropriating information cultivated from its paid subscribers for the public site.
Among other arguments, Hueston stressed that IMDb was populating its website with age information from publicly available websites. He also talked of how in California, anyone can get ahold of someone else’s birthdate by requesting public records.
Hueston added that California’s law was a “slippery slope,” in that websites could also be forced to censor place of birth due to concerns over nation-of-origin discrimination.
At one point, the hearing provided a lighter moment.
Bade noted that the ages of all three 9th Circuit judges were online.
Medley retorted, “Well, you are public figures.”
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