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A California law that allowed actors to forbid IMDb from posting their ages may have been well intentioned, but on Tuesday, a federal judge declared it not only to be unconstitutional, but also a bad solution to the wrong problem.
The law went into effect in 2017 after being signed by California Gov. Jerry Brown. The goal was to mitigate age discrimination in a youth-obsessed Hollywood by requiring IMDb to remove age-related information upon the request of a subscriber. It picked up backing by SAG-AFTRA, but spurred a lawsuit from IMDb, a subsidiary of Amazon. Less than two months after the law went into effect, U.S. District Judge Vince Chhabria issued a preliminary injunction. On Tuesday, he grants IMDb’s motion for summary judgment, finding it flouts the First Amendment.
“Even if California had shown that the law was passed after targeted efforts to eliminate discrimination in the entertainment industry had failed, the law is not narrowly tailored,” writes the judge. “For one, the law is underinclusive, in that it bans only one kind of speaker from disseminating age-related information, leaving all other sources of that information untouched. Even looking just at IMDb.com, the law requires IMDb to take down some age-related information — that of the members of its subscription service who request its removal — but not the age-related information of those who don’t subscribe to IMDbPro, or who don’t ask IMDb.com to take their information down.”
What’s more, the judge adds that the law is also overinclusive.
“For instance, it requires IMDb not to publish the age-related information of all those who request that their information not be published, not just of those protected by existing age discrimination laws,” states the opinion (read below). “If the state is concerned about discriminatory conduct affecting those not covered by current laws, namely those under 40, it certainly has a more direct means of addressing those concerns than imposing restrictions on IMDb’s speech.”
California attorney general Xavier Becerra attempted to argue the law was a valid regulation of voluntary commercial contracts, referring to the way actors sign up for IMDb’s Pro site only to potentially have their information used on the free version.
Chhabria rejects the argument.
“The law expressly contemplates that it will impact not just information obtained pursuant to a contractual relationship, but also information provided by members of the public,” writes the judge. “The law neither regulates any existing agreement between subscribers and IMDbPro nor imposes an after-the-fact requirement on IMDb not to disclose information provided by subscribers to IMDbPro.”
The judge says that the law’s effects on expression are far from “incidental,” calling it a direct restriction on speech given the prohibition on truthful information. He also doesn’t think of intervenor SAG-AFTRA’s contentions that possible misuse of truthful information is sufficient cause to censor.
The ruling doesn’t come as a surprise given the preliminary injunction, a stay on discovery and what was discussed at an oral hearing. But Chhabria does break some new ground by discussing an additional point.
“The defendants seem to misunderstand the problem they hope to address through AB 1687,” he writes. “The legislative materials repeatedly cite an article discussing ‘[t]he commonplace practice of casting a much younger female against a much older male’ and lamenting the significant underrepresentation of women in leading roles and in directors’ chairs. 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.”
Adds Chhabria, “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 defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it’s trying to solve.”
SAG-AFTRA COO and general counsel, Duncan Crabtree-Ireland, responded to the ruling on Tuesday afternoon, stating: “SAG-AFTRA is extremely disappointed with today’s ruling in IMDb v. Becerra and SAG-AFTRA. The Court unfortunately fails to understand or recognize the massive impact gender and age discrimination has on all working performers. That discrimination is facilitated by IMDb’s insistence on publishing performers’ age information without their consent. The ruling also refuses to recognize the reality of the commercial nature of IMDb’s database publishing operation. Despite sworn testimony submitted by SAG-AFTRA, the Court incorrectly concluded there were no material disputed factual issues, while precluding the parties from acquiring additional evidence or permitting the case to go to trial. SAG-AFTRA will continue to defend this much-needed law by appealing this ruling to the Ninth Circuit Court of Appeals.”
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