A California law seeking to remove age information from IMDb in an effort to combat discrimination has again been deemed unconstitutional, this time by a federal appeals court.
The site sued the California Attorney General in 2016, a couple of months after the state passed SAG-AFTRA-backed Assembly Bill 1687, which would require IMDb to remove the ages or birth dates of public figures in the entertainment industry from its public site upon request by IMDBPro members. The goal was to mitigate age discrimination, but the site argues the effect is unconstitutional censorship of free speech.
U.S. District Judge Vince Chhabria in February sided with IMDb, finding the law to be unconstitutional and granting its motion for summary judgment. He also argued that the state didn’t understand the very problem it was trying to solve and said it’s really “a manifestation of the industry’s insistence on objectifying women, overvaluing their looks while devaluing everything else.”
On Friday, the U.S. Court of Appeals for the 9th Circuit affirmed Chhabria’s decision. It found that reducing incidents of age discrimination is a compelling government interest, but the state failed to explore less restrictive and more narrowly tailored methods that would address the issue without compromising free speech.
The appeals court found the content in IMDb profiles isn’t commercial speech, doesn’t facilitate illegal conduct and doesn’t implicate privacy concerns. Therefore government restriction of such content is subject to strict scrutiny.
“Here, the State has not explored, or even considered, a less restrictive means to combat age discrimination in the entertainment industry before resorting to the drastic step of restricting speech,” writes Circuit Judge Bridget S. Bade in the opinion. “Because the State ‘has various other laws at its disposal that would allow it to achieve its stated interests while burdening little or no speech,’ it fails to show that the law is the least restrictive means to protect its compelling interest. That failure alone dooms AB 1687.”
The analysis doesn’t stop there, though.
“AB 1687 restricts only websites like IMDb.com while leaving unrestricted every other avenue through which age information might be disseminated,” writes Bade. “This presents serious concerns here because AB 1687 appears designed to reach only IMDb.”
Further, the 9th Circuit found the statute to be underinclusive because it only applies to people who both subscribe to IMDbPro and request that IMDb remove their age information. Writes Bade, “This malady means that the statute is not narrowly tailored, and thus, is unconstitutional.”
The 9th Circuit also disagreed that Chhabria’s decision to deny discovery before ruling on the summary judgment motion was an abuse of discretion, finding no information that was requested could “unsettle” their conclusion that AB 1687 is a content-based restriction on speech. (Read the full opinion below.)
“At bottom, the State’s and SAG’s discovery requests reflect a fundamental misunderstanding about the State’s burden in justifying restrictions on speech,” writes Bade. “Here, it does not matter that AB 1687 would accomplish what it sets out to do. An unconstitutional statute that could achieve positive societal results is nonetheless unconstitutional.”
SAG-AFTRA on Friday issued a press release in response to the decision, including a statement from president Gabrielle Carteris. “We’re very disappointed by the decision, but it changes nothing about SAG-AFTRA’s commitment to change IMDb’s wrongful and abusive conduct,” she said. “Neither I nor our members will stop speaking out until this outrageous violation of privacy used to facilitate discriminatory hiring ends.”