Yesterday, a Washington state federal judge enjoin enforcement of California’s AB 1687, which restricted certain entertainment websites from reporting an actor’s or actresses’ birth details without their consent. The statute attempted to reverse the decision from Hoang v. Amazon.
Round 1: Hoang v. Amazon and IMDb
In 2011, actress Junie Hoang sued IMDb, a wholly-owned subsidiary of Amazon, because it added her true birth date to her profile even though she has purposefully omitted it due to the fact that
In the entertainment industry, youth is king. If one is perceived to be “over-thehill,” i.e., approaching 40, it is nearly impossible for an up-and-coming actress, such as the Plaintiff, to get work as she is thought to have less of an “upside,” therefore, casting directors, producers, directors, agents/managers, etc. do not give her the same opportunities, regardless of her appearance or talent.
In 2013, a jury rejected Hoang’s claim and the decision was affirmed by the 9th Circuit in 2015.
Round 2: AB 1687
Last year, California enacted AB 1687 which provides that
(b) A commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following:(1) Publish or make public the subscriber’s date of birth or age information in an online profile of the subscriber.(2) Share the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.
The bill was enacted based on arguments, such as this by the Association of Talent Agents:
[unlawful] age discrimination continues to exist and is facilitated through public distribution of potential job applicant’s birth and age information via commercial online employment service providers.
Round 3: IMDb, Inc. v. Becerra
IMDb immediately challenged the new law on the basis that it was an unlawful restraint on speech. Yesterday, federal judge Vince Chhabria granted IMDb’s request for a preliminary injunction finding it to be an unlawful restraint on speech.
With respect to the first part of the preliminary injunction test, it’s difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content. See Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818-19 (9th Cir. 2013). Therefore, the burden is on the government to show that the restriction is “actually necessary” to serve a compelling government interest.1 Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 799 (2011).
This is where California’s argument collapses since the statute imposes a restraint on speech but does not address the real problem – age discrimination in Hollywood.
The government is highly unlikely to meet this burden, and certainly nothing it has submitted in opposition to the preliminary injunction motion suggests it will be able to do so. To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is “necessary” to advance that goal. In fact, it’s not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal anti-discrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of anti-discrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website
In a footnote, however, the court suggested a possible workaround for the state:
The government would perhaps be on stronger ground if AB 1687 were limited to preventing IMDb from misappropriating the data furnished by subscribers to its industry-facing site.