Federal Court Shuts Down IMDb-Targeting 'Anti-Ageism' Law Permanently
from the blunt-end-for-stupid-law dept
In the annals of stupid legislation, California's attempt to fight ageism at Hollywood studios by targeting third-party websites and using the First Amendment as a doormat will secure a prominent place in infamy. Rising from the ashes of a failed lawsuit brought by an actress who claimed IMDb cost her untold amounts of wealth by publishing her age, the law basically said IMDb couldn't publish facts on its website. Those pushing the legislation included the Screen Actors Guild, which apparently doesn't have the spine to stand up to studios and target them for discriminating against actors and actresses.
Last year, IMDb secured a temporary injunction against the state of California, forbidding it from enforcing the law while the courts sorted out its constitutionality. That day has arrived. A federal court has declared the law unconstitutional and permanently blocked California from going after IMDb because Hollywood producers participate in discriminatory hiring. (h/t Jacob Gershman)
The decision [PDF] is short. It takes only six pages for the district court to destroy the state's arguments. First, it tells the state it's not going to apply a lower First Amendment standard of scrutiny to its awful law.
California and SAG-AFTRA provide no reason to apply a lower level of judicial scrutiny to the statute than was applied at the preliminary injunction stage. AB 1687 cannot properly be considered a regulation of voluntary commercial contracts rather than a speech restriction. Upon the request of a subscriber to IMDbPro, the law requires IMDb to remove age-related information from its public-facing website, IMDb.com, regardless of the source of the information on IMDb.com. The law expressly contemplates that it will impact not just information obtained pursuant to a contractual relationship, but also information provided by members of the public…
That's just the court's warm-up. It gets worse for the state from there.
[A]s California concedes, AB 1687 is not properly considered a generally applicable law; moreover, its effects on expression are far from incidental. 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.
The court also points out the targeted speech isn't commercial speech, which receives fewer Constitutional protections.
Nor can AB 1687 plausibly be characterized as a commercial speech restriction. The speech at issue is factual information about entertainment professionals, conveyed – at least on IMDb.com – in a manner unconnected to any commercial transaction… The fact that IMDb has a financial interest in people's reliance on IMDb.com for information doesn't transform the age-related information restricted by AB 1687 into commercial speech.
The court also has some choice words for the Screen Actors Guild, which really should have known better than to have supported this censorial garbage.
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. There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination.
If SAG really wants to do something about discrimination, it should use its collective weight to make changes in the studio system, rather than enable censorship and threaten the same protections that allow movies to be made without government interference.
It's a stupid law and the district court does everything but directly call it stupid during the course of its six-page decision. It points out the state has plenty of ways of curbing age discrimination that don't involve walking all over the First Amendment. The fact that previous legislative efforts have failed is no reason for the state to decide the publication of facts must be banned. The court also notes neither the state nor SAG have shown any causal link between IMDb's publication of actors' ages and age discrimination in Hollywood studios. Even if IMDb's publications make it "easier" for studio heads to discriminate (a point the court does not concede), the statutory remedy deployed by California would only force IMDb to remove age info at the request of subscribers, which means there would still be plenty of data available for studios to "misuse."
It's a resounding loss for both entities -- both of which should have known the law was destined for the federal court chopping block while it was still in its infancy. The fact the law even exists seems to indicate both the State of California and the Screen Actors Guild are too cowardly to confront Hollywood studio execs directly.
Finally, the court calls the state and SAG out for being so jacked up about punishing IMDb that they can't even recognize the sort of discrimination they're dealing with.
Although the previously-discussed flaws in the statute are more than enough to strike it down, one final point bears mention. The defendants seem to misunderstand the problem they hope to address through AB 1687. The legislative materials repeatedly cite an article discussing "[t]he commonplace practice of casting a much younger female against a much older male" and lamenting the significant underrepresentation of women in leading roles and in directors' chairs. 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 defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it's trying to solve.
That's some fine bench-slapping. Hopefully, it will deter the state and its SAG helpers from rushing back to the legislative halls to take another stab at crafting more First Amendment-violating stupidity.
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Filed Under: ageism, ages, anti-slapp, california, free speech, hollywood, imdb, slapp
Companies: amazon, imdb
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This is very interesting. How big of a precedent does this set? Several times in the past, we've seen Techdirt stories about people trying to make exactly this claim (or even weaker ones) about random posts on the Web being "commercial speech". It would seem that this demolishes that notion entirely.
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One grain of sand doesn't make a beach...
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Proper commercial speech is discussed best in Central Hudson Gas & Electric Corp v. Public Service Commission, in my opinion. Commercial speech is basically advertising, not merely speech engaged in by a commercial entity is the gist of it, and is itself largely protected except in fairly narrow circumstances.
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How big a precedent? [was Re: ]
Let me step back and speak generally about precedents.
Precedents, and even precedential court decisions, come in all sorts of shapes and flavors. Setting aside executive or legislative precedents, the precedents set by courts generally split into “binding precedents” and “pursuasive precedents”.(*)
Binding, or “mandatory”, precedents are the decisions of higher courts that lower courts must follow. Higher courts are the supreme courts and courts of appeal, and in this context, the lower courts are the courts which get their decisions appealed up to those specific higher courts. For instance, an appeal from the Northern District of California usually goes up to the Court of Appeals for the Ninth Circuit.(†) The Ninth Circuit is the higher court and N.D.Cal. is the lower court. In short, N.D.Cal. must do what the Ninth Circuit tells it. It's not optional. Mandatory.
Pursuasive precedents are decisions that the lower courts don't have to follow. For concreteness, N.D.Cal. doesn't have to do what the Eighth Circuit, or the Tenth Circuit says. But those precedents are “pursuasive” because they make good sense. So N.D.Cal. might listen to what another circuit says, and might listen to what the state courts say—and might even listen to what some municipal court has to say about a particular matter. All depends on who's making good legal sense.
What are the “big” precedents?
Well, if the United States Supreme Court decides something—all the lower courts better listen up!
Short of that, precedential “bigliness” is actually kind of a mushy concept.
A federal district court, such as N.D.Cal., can be extremely pursuasive and influential. But it's awfully hard to measure something like that up front. Instead, you need to look at the actual impact of a particular decision over the next few decades. Some decisions just happen to get cited over and over again for a specific proposition.
But I don't think there's any general formula to predict that that'll occur. Oh, there may be rough heuristics. But the best heuristic is simply that, just playing the odds, it most often doesn't occur.
(*) That general split does ignore what's sometimes called “dead precedent” — old, moldy decisions that no one remembers.
(†) In patent cases, an appeal usually goes up to the Court of Appeals for the Federal Circuit (CAFC).
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While it is possible that some will attempt to use the district court's analysis to attempt a legislative "fix" to the problem of discrimination in the entertainment industry, a circuit court decision with such language will probably guarantee it. Thus, opening a new set of court cases that waste time and money.
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I certainly hope you're not saying that studios should never take an actor's age in to account when looking to fill a role.
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The actor's actual age is irrelevant. Their ability to portray someone of the character's age is what should matter.
If you're using the actor's age as a shortcut for saying, "Oh this woman is 30 years old, she can't possibly play a 25 year old," then you're discriminating based on age.
No one is going to argue that Sir Ian McKellen should be playing a teenager. But that's not what's being discussed here.
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You could start any discussion of California law these days with this admonition.
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After getting spanked because of her seeking a payday for her age being published, and the court finding it was more of a hobby than a job... her personal crusade resulted in time & money wasted on passing a stupid law.
She will never be able to work again & recapture the magic of her portrayal of Ghetto Girl Three in Hoodrats 2: Hoodrat Warriors.
Oh wait, she has 2 projects in production and multiple credits even after the world learned her real age. It's almost like her real age didn't matter, she just might not be that amazing of an actress & wanted an excuse other than her 'talent' for not getting jobs.
Perhaps the problem is the focus on younger demographics which requires younger stars to connect with & dumb enough to sign multi film deals to churn out crap sequels based on the theory of it worked once, it'll work again.
The world isn't fair, but this amazing lets blame a 3rd party rather than admit a deep flaw in the system that existed before, during, & will continue no matter what you do to everyone else because you are ignoring the real source of the problem.
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Which legislators voted against the first amendment?
If you're a citizen in California, here are your legislators.
AB-1687 (2015-2016): Bill Votes
Follow that link to see if your legislator lined up among the ‘ayes’—
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Re: Which legislators voted against the first amendment?
Oh, and for all of you who can't recall who's who in Sacramento.
(Via California State Legislature: Legislators and Districts)
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Re: Which legislators voted against the first amendment?
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Actually, pretty sure the voters can forget him at the next election. He's term-limited now. Won't be back.
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Film and video ARE superficial
The court writes that the problem is
Film and video are visual media - they're necessarily concerned with looks. When we watch a movie, we don't get to see how intelligent, honest, caring, hard-working, etc. the actors are - we get to see how they look and how they act.
That's all. So filmmakers can't avoid being concerned with actors looks.
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Thank Goodness for the Judiciary Branch
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Re: Thank Goodness for the Judiciary Branch
According to the AB-1687 (2015-2016) Bill Status page, the “Lead Author” was “Calderon (A)”.
So that's California Assembly Majority Leader Ian Calderon, from Whittier, representing the state's 57th Assembly District, to the southeast of LA.
That's who.
'Course he most probably didn't personally write the actual text of the bill, himself.
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Re: Thank Goodness for the Judiciary Branch
Fwiw, the majority leader in the California Assembly, Ian Calderon (57th dist.), doesn't seeem to share your respect for the judiciary. From the majority leader's statement last Wednesday regarding United States District Judge Chhabria's order—
No apologies for the censorship attempt. And not even a fig-leaf of respect for Judge Chhabria.
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