A recent decision by a federal court in California has called into question the constitutionality of a state law aimed at preventing age discrimination in the entertainment industry. In IMDb.com, Inc. v. Becerra, the online film and entertainment website IMDb won a preliminary injunction request allowing it to continue listing actors’ ages in their online profiles, which contravenes California legislative measure A.B. 1687.
A.B. 1687 was signed into law on September 24, 2016 to push back against what SAG-AFTRA President Gabrielle Carteris called “the ageism that permeates Hollywood’s casting process.” Under the law entertainment employment service providers who have contracts with subscribers are required to remove upon request subscribers’ dates of birth and ages from the public view within five days. Interestingly, the bill does not provide any penalties for noncompliance or recourse for those harmed. The court in the present case keyed in on the likelihood of IMDb’s success in the lawsuit going forward, stating plainly that “it's difficult to imagine how AB 1687 could not violate the First Amendment.”
Noting that “the statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption,” the court concluded that the statute amounts to “a restriction of non-commercial speech on the basis of content." Content-based restrictions on non-commercial speech require the government to show that the restriction is "actually necessary" to serve a compelling interest. The court felt “the government is highly unlikely to meet” its burden based on its submissions in opposition to the preliminary injunction motion. While a compelling government interest was identified, namely “preventing age discrimination in Hollywood,” the court said “it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all.”
The government's argument that AB 1687 is an "ordinary economic regulation falling outside First Amendment scrutiny" also failed. The government tried to link IMDb's website age disclosures to the company's subscriber service, but the court pointed out that "IMDb Pro's commercial relationship with its subscribers has no connection to IMDb's public site, which relies on data obtained from third parties or from the public record." The parties are set for a case management conference on March 21st.