Appeals Court Says California's IMDb-Targeting 'Ageism' Law Is Unconstitutional

from the guess-what-your-tax-dollars-have-been-up-to,-Californians dept

The state of California has lost again in its attempt to punish IMDb (the Internet Movie Database) -- and IMDb alone -- for ageism perpetrated by [checks notes] movie studios who seem to refuse to cast actresses above a certain age in choice roles.

The law passed by the California legislature does one thing: prevents IMDb (and other sites, theoretically) from publishing facts about actors: namely, their ages. This stupid law was ushered into existence by none other than the Screen Actors Guild, capitalizing on a (failed) lawsuit brought against the website by an actress who claimed the publication of her real age cost her millions in Hollywood paychecks.

These beneficiaries of the First Amendment decided there was just too much First Amendment in California. To protect actors from studio execs, SAG decided to go after a third-party site respected for its collection of factual information about movies, actors, and everything else film-related.

The federal court handling IMDb's lawsuit against the state made quick work of the state's arguments in favor of very selective censorship. In only six pages, the court destroyed the rationale offered by the government's finest legal minds. Here's just a sampling of the court's dismantling of this stupid law:

AB 1687 is a direct restriction on speech. The law prohibits certain speakers from publishing certain truthful information – information that, in many instances, is supplied by members of the public – because of concerns that a third party might use that information to engage in illegal conduct.

[...]

SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts "facilitate" age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact.

The court also pointed out that the law targeting IMDb did nothing to address the underlying problem. In fact, it appeared the state wasn't even addressing the right problem.

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. 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 state appealed and the Ninth Circuit Appeals Court is no more impressed than the lower court. (h/t Courthouse News Service)

Content-based restrictions are generally First Amendment violations. So is the targeting of certain speakers and very specific speech emanating from them. From the opinion [PDF]:

On its face, AB 1687 restricts speech because of its content. It prohibits the dissemination of one type of speech: “date of birth or age information.” And, perhaps more troubling, it restricts only a single category of speakers. Thus, AB 1687 “impose[s] direct and significant restrictions” on a category of speech. It does not apply generally.

The state argued that this only affected subscribers to the site who paid to control the information contained in their profiles. The Appeals Court says this doesn't matter. The law targets more than paid accounts. It forbids the dissemination of age information contributed by third parties.

The statute does not restrict only information misappropriated through the parties’ contractual relationship; it also prohibits the publication of information submitted by members of the public with no connection to IMDb. These restrictions apply regardless of whether an IMDb public profile existed independent of, or prior to, any contractual agreement between IMDb and an IMDbPro subscriber.

Even if money changes hands for paid accounts, the speech being targeted is not "commercial" speech. The site refers to itself as a "database" for a reason. And that nullifies the state's argument.

These free, publicly available profiles are found in an “online database of information” and are surrounded by content that “includes information on cast, production crew, fictional characters, biographies, plot summaries, trivia and reviews.” The content is encyclopedic, not transactional.

The court also dispenses with the state's argument that the publication of age information allows other parties to engage in illegal discrimination. And it does so by pointing out the obvious: the target of anti-discriminatory laws should be the entities that actually engage in discriminatory behavior.

If accepted, SAG’s interpretation of Pittsburgh Press would require this court to permit the restriction not only of speech that proposes an illegal activity but also facially inoffensive speech that a third-party might use to facilitate its own illegal conduct. [...] Rather than restrict truthful speech, the typical “method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.”

The court also notes that the law appears to have been crafted specifically to prevent one site from publishing age information. That's not what "narrowly-tailored" means in the First Amendment sense of the phrase. Narrow tailoring can impose speech restrictions that pass the First Amendment test. Targeting one site while leaving others free to publish what the law says IMDb cannot isn't Constitutional.

On its face, AB 1687 restricts only websites like IMDb.com while leaving unrestricted every other avenue through which age information might be disseminated. This presents serious concerns here because AB 1687 appears designed to reach only IMDb.

[...]

AB 1687 is underinclusive because it fails to reach several potential sources of age information and protects only industry professionals who both subscribe to such service and who opt-in. This malady means that the statute is not narrowly tailored, and thus, is unconstitutional.

And that's it for California's extremely bad law.

Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional. Here, we address content-based restrictions on speech and hold that AB 1687 is facially unconstitutional because it does not survive First Amendment scrutiny.

Even if the law had somehow survived a First Amendment challenge, it still wouldn't have prevented studios from engaging in discriminatory hiring practices. If this was really the state's concerns, it would have stepped up its regulation of the entertainment industry, rather than a single site that was unsuccessfully sued by an actress, who speculated IMDb's publication of her age was the reason she wasn't landing the roles she wanted.

Filed Under: 1st amendment, 9th circuit, ab 1687, actors, age, california, free speech, imdb, truthful information
Companies: amazon, imdb, sag-aftra


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  • icon
    That One Guy (profile), 22 Jun 2020 @ 3:43pm

    'No no, we covered the blood, no need to check more...'

    Nice of the court to point out that if the problem is age discrimination the proper target should be the ones engaging in that discrimination, not the site that was posting factual information that might 'enable' it.

    If the ones pushing the law actually cared about age discrimination then they'd go after the studios/producers that are guilty of it, but since that would involve upsetting powerful people IMDB was thrown out as a scapegoat, a way to divert focus and blame off of the guilty parties by pinning it on someone else, which thankfully the court saw through and shot down.

    reply to this | link to this | view in chronology ]

  • icon
    Madd the Sane (profile), 22 Jun 2020 @ 3:52pm

    Why go after IMDb?

    Simple: easy target. The entertainment industry is heavily entrenched in California: trying to make them budge would be a herculean effort. Better to go after the symptom than the disease, I guess.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jun 2020 @ 3:56pm

    The woman in question had a career and seemed to be where she was supposed to be. Don't know if she lost jobs to age. Kathy Bates does okay.

    reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 22 Jun 2020 @ 4:08pm

    Not just the first amendment

    Targeting one site while leaving others free to publish what the law says IMDb cannot isn't Constitutional.

    In addition to the obvious first amendment problems, wouldn't that also be a bill of attainder if it only targeted the IMDB (corporations are people, after all)? I'd like a constitutional lawyer to educate me if I'm wrong.

    reply to this | link to this | view in chronology ]

    • identicon
      President James K. Polk, 27 Jun 2020 @ 5:43am

      Re: Not just the first amendment

      I had the same thought. I guess IMDB never raised that issue since their 1st amendment claims were such a slam dunk.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 22 Jun 2020 @ 5:22pm

    Is she or isn't she, the hairdresser won't tell

    This was the entertainment industries effort to keep up with the interests of teenage (and pre-teen) boys and sometimes girls. No one has more interest in the hotness of the leading ladies than they do. It's not that others don't care, they just don't care as much.

    That law, nor its dismantlement will not change the process of selecting leading ladies one iota. The ability of the casting director to make determinations with regard to the hotness or not of the potential applicants will have little to do with the actual date of birth.

    If you're upset with this analysis, blame hormones.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 22 Jun 2020 @ 5:39pm

    Objectification of women - in films!

    I don't get the problem with "objectification" of women in movies.

    They're movies. We're not hiring the actresses to run our businesses, to do our tax returns, to design our airplanes, to cure our diseases, or to teach English literature.

    We are going to LOOK at them on the movie screen.

    If we can't objectify people whose JOB it is to be objectified, things have gone too far.

    (This applies to men, too, of course. Few people want to watch Danny DeVito play a Clint Eastwood role.)

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 22 Jun 2020 @ 6:05pm

      Re: Objectification of women - in films!

      You obviously never read the Techdirt bible:

      Techdirt is written to communist-minded people,
      independent organizers and anti-imperialists; those who carry the traditions
      and lessons of the struggles of the last decade, those who join in the struggles
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      • identicon
        Anonymous Coward, 22 Jun 2020 @ 6:18pm

        Re: Re: Objectification of women - in films!

        The truth is revolutionary ... interesting perspective.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          John Gault, 22 Jun 2020 @ 7:20pm

          Re: Re: Re: Objectification of women - in films!

          Yes, I understand you, you are a believer. But maybe you could explain one thing to me: In the past, Techdirt talked (a LOT) about seizing the "means of production" and giving them to the "people". But today, the "means of production" that has the most value is intellectual property. Just listen to Bill Barr in his recent interview, he thought protecting Intellectual Property from China (and others) as the number one national security issue for America. So, the "means of production" of today's economy are thoughts, words, programs, ideas, poetry, music, all the things that happen in people's HEADS first. How to you seize that? Wait, I know ... censor unbelievers, restrict free speech, punish those who have independent thought, brutalize those who disagree, and then WHAMMO you control what people think and say, and thus you control the "means of production".

          Unfortunately, it also means people stop producing, because there is no incentive. See Ayn Rand, Atlas Shrugged (among others)

          Right?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jun 2020 @ 6:17pm

      Re: Objectification of women - in films!

      An example: Imagine a young girl watching the subject movie/tv_show trying to understand the social dynamics around her only to be slapped in the face with the sexism referred to as "objectification".
      You are not smart enough to run this complex whatever ... go stand over there and let men ogle your body. Which she is already self conscious about.
      It takes a little empathy but I'm sure you can do it.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 22 Jun 2020 @ 6:51pm

      I don't get the problem with "objectification" of women in movies.

      Women deserve better than filmmakers turning women into the objects of desire for male characters — to the point where the female characters have no character.

      And I get the arguments about aesthetics. Of course general audiences don’t want to see an “overweight” woman in a role meant for a “sexy” woman. (Replace weight references with age and the argument still applies.) But that alone doesn’t make acceptable the shortchanging of female roles in film — especially for women who don’t meet certain standards of beauty.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 22 Jun 2020 @ 7:22pm

        Re:

        What I think you mean is "For women working, for women forced into the
        marriage marketplace, trapped in oppressive relationships, raising children
        alone, the efforts of Stephen T. Stone brought a new sense of self-worth and
        dignity; it explained the conditions of women's oppression."

        Would you agree with that?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jun 2020 @ 10:14pm

      Re: Few people want to watch Danny DeVito play a Clint Eastwood

      I beg to differ - some could be darkly hilarious

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jun 2020 @ 7:22pm

    Yeesh! What's next in the trend of stupid laws? a law prohibiting certain publishing of one's gender because sexism?

    reply to this | link to this | view in chronology ]

    • identicon
      MathFox, 23 Jun 2020 @ 1:57am

      You are completely right. I think we can root out sexism by making it illegal to mention sex on a birth certificate and consequently all other government issued ID's. And it should be made illegal to ask for someone's sex in any business transaction, including employment!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2020 @ 7:24am

    This is all very very silly.

    Why not attack the root of the problem? Simply outlaw aging.

    Prosecute physicians who knowingly offer treatment programs that don't prevent aging. Prosecute pharmaceutical firms that knowingly manufacture drugs that might be used by aging patients.

    And don't listen to those boring old M.D.s or researchers that say it is impossible. What do they know about politics? If they had addressed this issue as they ought, congress wouldn't HAVE to legislate.

    (I heard that Bill Gates has a cure for aging and is just waiting till the best time to put it on the market. He's been using makeup to appear progressively older for at least 20 years now. Unfortunately, it can only be delivered by 5G wireless.)

    While I personally admire Techdirt's editors and value its analyses, I feel that they have been sadly remiss in failing to expose this conspiracy to an obliviously unsuspecting public. Just ask yourself: are you getting older? If not, you don't need to care about this. But if so .....?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 23 Jun 2020 @ 8:23am

    Ahh yes Junie's Law...
    To make sure women of a certain age will still be cast as checks notes Ghetto Girl Three....

    reply to this | link to this | view in chronology ]


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