A new California law that will require IMDb to omit or remove age and birth date from an actor’s profile upon request is likely unconstitutional, a half-dozen lawyers and law professors have told The Hollywood Reporter in the two days since its enactment, citing First Amendment concerns.
A seventh lawyer and former law professor, an expert in discrimination law, was equivocal but thought on balance that the law, known as AB 1687, would survive a constitutional challenge, while SAG-AFTRA’s general counsel and the bill’s sponsor were confident that the statute could withstand litigation.
More typical was the opinion of one of the country’s most prominent First Amendment lawyers, Floyd Abrams of New York’s Cahill Gordon & Reindel, who in a half-century of law practice has frequently appeared in the U.S. Supreme Court, including on such notable matters as the Vietnam-era Pentagon Papers case and, more recently (and less beloved by liberals), Citizens United, a case that unleashed a flood of corporate money in politics on free speech grounds.
“The statute seems to me of the most dubious constitutionality,” Abrams told THR in an exclusive interview. “Birth dates are facts. It’s hard to see how the government, consistently with the First Amendment, can bar or punish their disclosure.”
The legislation, which SAG-AFTRA facilitated and which the governor signed Saturday after overwhelming passage in both houses of the legislature, is intended to reduce age discrimination in the entertainment industry. Currently, birth dates are prominently displayed on IMDb profiles, which the union says has led to casting directors and their staffs unavoidably taking note of – and sometimes acting on – the information. Discrimination against persons over 40 based on their age is unlawful under federal and state law, but age bias remains a problem for actors, among others, and not just those who are over 40.
“Hundreds of members complain to us each year about the career devastation resulting from inclusion of this personal information on their profile,” said the union’s COO and general counsel, Duncan Crabtree-Ireland.
To reduce discrimination, and for privacy reasons, some have asked IMDb to remove their birth dates (full disclosure: as this reporter did, in 2007 and 2008), but the company’s policy is clear: “We do not remove valid dates of birth.”
Entreaties by SAG-AFTRA and others, and even an actress’ (ultimately unsuccessful) 2011 lawsuit, have failed to change that policy. “Legislation was never our first choice,” said Crabtree-Ireland. “Only after IMDb rebuffed our efforts at a voluntary solution did we elect to pursue legislation.”
But will the statute succeed? That depends on various factors, including whether IMDb chooses to comply with the law or to challenge it – and on whether the provisions, which are set to go into effect Jan. 1, are constitutional.
The devil may lie in the details. The law applies to entertainment database sites that allow paid subscribers to post résumés, headshots or other information for prospective employers. Only a paying subscriber can make a removal or omission request, but the statute also encompasses any “companion” websites under common control with the paid site — for example, IMDb as well as IMDb Pro.
In fact, “for example” may be a bit misleading, because IMDb and IMDb Pro are effectively the legislation’s only target: although the statute’s language is general, the Amazon-owned sites seem to be the only services that fall within the law’s scope. According to sources, other websites with casting information either already allow users to opt out on ages and birth dates or, like Gracenote’s Studio System, don’t generally have actors (or other data subjects) as subscribers. Nor do investigative databases like LexisNexis, but those are more commonly used by lawyers, private detectives and journalists, not casting directors and producers hell-bent on discovering a performer’s date of birth.
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Indeed, an actor told THR that in practice IMDb and IMDb Pro are the main sources of age information that hiring authorities see. (IMDb and Gracenote both failed to respond to inquiries from THR two days ago regarding the new legislation.)
If IMDb were to violate the new statute, the consequences include damages, attorney’s fees and injunctions, as spelled out in an adjacent section of the state’s Civil Code. Although the statute may be most critical for actors, it applies to all entertainment job categories. And boldface names are said not to be the focus of the legislation.
“While age information for Hollywood’s biggest stars is readily available from other online sources,” said the bill’s sponsor, Assembly Majority Leader Ian Calderon, “this bill is aimed at protecting lesser known actors and actresses competing for smaller roles.” According to sources, actresses in particular have been a persistent target of age bias.
But whether the statute is Constitutional probably turns on whether the expressive activity — publishing birth dates — is considered commercial speech and, if so, whether the lesser protection afforded such speech leaves IMDb’s sites subject to regulation.
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It’s a legal thicket. Until 1976, the Supreme Court had held that commercial speech wasn’t protected at all by the Constitution, but that changed when the Court changed course and declared such speech eligible for limited protection. Four years later, the tribunal decided Central Hudson Gas & Electric, a case that still controls. It laid out a definition of commercial speech and a multipart test that attempts to balance First Amendment concerns with regulatory goals.
Under Hudson, commercial speech — defined as “speech proposing a commercial transaction” — is unprotected if it is misleading or is “related to illegal activity.” As an example of the latter, the Court cited a 1973 case, Pittsburgh Press, that upheld an antidiscrimination law that prohibited gender-biased employment ads.
A lower court decision from 1971, U.S. v. Hunter, is also still considered good law: it upheld a prohibition on explicitly racist real estate ads. And 20 years later, another Court of Appeals allowed a claim to proceed in Ragin v. New York Times, which alleged a more subtle form of discriminatory speech: that out of thousands of models who appeared over the years in real estate ads in the Times, almost none were black, and the few who were, were shown as buying or renting in predominantly black neighborhoods only.
But back to Hudson: If the communication is neither misleading nor related to unlawful activity, a regulation of commercial speech can stand only if it directly advances a substantial state interest (rather than being ineffective) and does so using a technique in proportion to that interest (as contrasted with a situation where a more limited restriction on commercial speech would suffice).
Is the age information on IMDb Pro and IMDb commercial speech? UCLA Law School’s Eugene Volokh, a First Amendment expert, says the IMDb Pro information is indeed commercial speech — “i.e., speech that is distributed in order to propose a commercial transaction” (hire this actor) — but that the information on the free site is not, because the age information on that consumer-facing site doesn’t propose a commercial transaction.
“That information is functionally fully protected speech, not the less-protected commercial advertising of services,” said Volokh. “I don’t think that the law can require IMDb to remove the age information even from the publicly available [site], for which the great majority of readers aren’t employers but just curious members of the public.”
Depriving the public of truthful information struck a number of others as the core issue.
“Creating liability for the truthful reporting of lawfully obtained information is deeply problematic under the First Amendment,” said UC Irvine dean and Constitutional scholar Erwin Chemerinsky. “It is different to say ‘men only’ or ‘women only’ or ‘whites only’ in an ad. That is discrimination that is impermissible. A birthday or an age is a fact, and I don’t think there can be liability under the First Amendment for publishing true facts.”
Said Bruce Johnson, of Seattle’s Davis Wright Tremaine, “Obviously, to the extent that it requires the removal of truthful information from websites reporting on matters of public interest, the statute would appear to be an unconstitutional abridgement of First Amendment rights.”
Not so fast, says SAG-AFTRA’s Crabtree-Ireland.
“IMDb Pro and IMDb.com are intimately entwined and interconnected” he said. “Both sites are commonly used by the casting community and both sites generate revenue for IMDb from a variety of sources, including the sales of subscriptions to the Pro service itself, as well as parent-company Amazon’s product line.”
Accordingly, he says, “These intertwined sites, part of a single business, should be analyzed together and, in our view, both sites clearly constitute less-protected commercial speech. In any event, the substantial government interest in preventing age discrimination is more than sufficient to justify this narrowly tailored rule.”
Similarly, bill sponsor Calderon said the limitation to subscribers will help insulate the new law, as THR reported Saturday.
“Requiring websites to remove all age information from profiles would seem to run afoul of the First Amendment restrictions on the regulation of commercial speech,” Calderon had said in a statement to THR. “Limiting the bill to only subscribers makes it clear that the bill advances an important government interest — that of reducing age discrimination in a manner that is substantially related to that interest and no more extensive than necessary to achieve that interest.”
But others see that same specificity as a Constitutional infirmity.
“I think [the law] has serious constitutional problems,” said Kelli Sager, a prominent Los Angeles-based First Amendment expert also at Davis Wright Tremaine. (Full disclosure: The firm has represented THR.) “As a constitutional matter, the government could not forbid news organizations from publishing accurate information about the age of actors (or directors, or anyone else in the entertainment industry).”
She continued, “The suggestion by the proponents that this law is constitutional because it targets ‘commercial’ enterprises with ‘subscribers’ doesn’t avoid that problem: It isn’t consistent with the definitions used in the law — and also doesn’t make sense, given that a business that depends on income from ‘subscribers’ is more likely to accede to the subscriber’s wishes concerning the information that will be posted about them anyway.”
Said Harvey Silverglate of Boston’s Zalkind Duncan & Bernstein, who has practiced civil liberties and criminal defense law since the 1960s, “Limiting the power to censor only to paying members does not save the legislation. From one perspective, it makes the situation worse by granting the right-to-censor only to those who can afford to ‘bribe’ their way out of having age disclosed.”
Abrams agreed.
“As for limiting the impact of the statute to certain sites and protecting only some people’s birth dates, that offers yet another basis for constitutional challenge,” he said. “Speaker-focused limitations on speech are less, not more, likely to pass constitutional muster. The same is true of speech-limiting laws that seem designed to protect only a favored class of people.”
In contrast, Crabtree-Ireland insists that the law’s limited scope is a strength. “AB 1687 is narrowly drafted to achieve one specific goal,” he said: “to deter age discrimination in casting by empowering performers to remove their age information from subscription based online services used for casting in the entertainment industry.”
Citing a 1998 decision by the West Coast’s 9th Circuit that found a commercial database that sold arrest information to be “a pure economic transaction…comfortably within the ‘core notion’ of commercial speech,” Crabtree-Ireland added, “Similar laws involving commercial speech have withstood First Amendment challenges when narrowly drafted and effectuating a substantial government interest.”
Zev Eigen, a discrimination expert and former Fox lawyer and Northwestern professor now at Littler Mendelson in L.A., agreed, feeling that the importance of the state interest in prohibiting discrimination would allow the statute to survive a legal challenge.
But that may be assuming that a dispute over age information even sees the inside of a courthouse. IMDb’s terms of service require that cases be arbitrated. Court decisions give great deference to arbitration clauses; and an arbitrator might not give the same deference to the new California law, especially in light of another provision of the terms of service, which specifies that Washington State law apply. That sets up a potential tussle with the California law, particularly in light of a clause that states that the rights accorded under the statute are non-waivable.
The terms of service do allow, alternately, for pursuing an action in small claims court, but there the limit on damages is $10,000, and injunctions are not available (unless specifically authorized by the applicable statute, which doesn’t seem to be the case here).
An action by the state Attorney General or a local DA wouldn’t be subject to the arbitration clause, but it’s unclear whether those officials have the power to use the new law. The legislative analyses of the bill did not address these questions, nor even do more than briefly allude to Constitutional issues either.
There are other issues, too. Age discrimination is only prohibited as against the over-40 set, but the IMDb law isn’t so limited. Does that make it over-broad? Perhaps not: In an industry where a 30 year-old actress is more likely to face age bias than a 30 year-old male actor, there’s an argument that the law’s breadth of coverage (as regards the age of the individual) is necessary in order to address gender bias.
Sager suggested another issue is vagueness in the statute’s definition of such terms as “commercial online entertainment employment service provider” and “age information.” She also questioned whether the government even has the power to address age discrimination in the entertainment industry at all, calling it “a complex issue, if you are talking about hiring people to perform in an expressive work,” and said that if so, such conduct should be “regulated directly, by forbidding discrimination, rather than by enacting laws aimed at restricting speech.”
Meanwhile, Silverglate got to much the same question, suggesting that age, independent of appearance, could sometimes be a bona fide factor in casting decisions.
“I do think there are First Amendment (and state equivalent) problems with official state action that prohibits the disclosure of information, especially when it is reasonable to say that the information is relevant to a legitimate purpose,” he said. “The fact that there is a scenario by which the inclusion of age information might inform a relevant, and non-discriminatory purpose, dooms this legislation. Information as to age can be central to the legitimate hiring process.”
That’s a lot of uncertainty for one short statute. But one thing is clear: If there’s a fight to be had on this issue, SAG-AFTRA will be in it, notwithstanding the fact that litigation is distinct from the union’s more traditional collective bargaining function.
“SAG-AFTRA has made a long-term commitment to remedying the problem of misuse of performer age information,” said Crabtree-Ireland. “For this law to be effective, we will have to be vigilant, both in defending the law from potential challenges, and in seeing that it is effectively enforced.”
He added, “Whether implementation of the law is streamlined or fraught, we will be there doing whatever is necessary to defend our members from this harmful practice.”
