We Californians have always been known for our slightly wackadoodle behavior, but this is pretty out there—even for us. A new law—signed by Governor Jerry Brown on September 24—gives actors the power to demand that IMDb remove information about their ages from the site. The law is intended to protect against age discrimination in Hollywood. And yes, free speech advocates are up in arms.
AB 1687, which was authored by Majority Leader Ian Calderon (D-Whittier), passed the assembly with broad, bipartisan support. The law, evolved out of actress Junie Hoang's failed attempt to get her age scrubbed from her IMDb page, is set to go into effect on January 1, 2017. Sites will have five days to comply with the request after someone asks that their age be removed.
The Screen Actors Guild (SAG-AFTRA) vocally lobbied for the bill, telling its members in an open letter that "Age discrimination is a major problem in our industry, and it must be addressed." According to the Guild, publishing performers’ dates of birth can cause "career damage."
SAG-AFTRA's union president Gabrielle Carteris (a.k.a. Andrea Zuckerman on Beverly Hills, 90210) published an op-ed in The Hollywood Reporter last month where she argued that if electronic casting sites had been omnipresent in 1990, when she auditioned for her role on 90210, she would never had a chance:
My role on Beverly Hills, 90210 could not have happened for me today, plain and simple. I would never have been called to audition for the part of 16-year-old Andrea Zuckerman if they had known I was 29. Electronic casting sites did not exist in 1990; today, they are prevalent and influential. And they affect casting decisions even when casting personnel don't recognize their unconscious bias.
“The statute seems to me of the most dubious constitutionality,” Floyd Abrams, one of the nation's most prominent First Amendment lawyers, told The Hollywood Reporter. “Birth dates are facts," Abrams added. "It's hard to see how the government, consistently with the First Amendment, can bar or punish their disclosure.”
"It's unconstitutional," Aaron H. Caplan, a professor of law at Loyola Law School who teaches constitutional law classes and literally wrote a con law textbook, told LAist. "It violates the First Amendment pretty clearly."
"What we basically have here is a law that says it's illegal to reveal truthful information that is ordinarily not considered deeply private or personal," Caplan said. "It's not a situation like the Hulk Hogan sex tape, where you have someone who is revealing very private information that reasonable people would want to keep secret. The mere fact of someone's date of birth is not considered secret or an invasion of privacy. It's just a piece of truthful information."
The free speech debate over AB 1687—at least as it appears in the media coverage and dueling op-eds—appears to primarily hinge on a) if age is a basic fact in the public domain, and b) whether or not the the law could have wider implications on censorship in general. The actual language of the bill is pretty narrowly focused, specifically restricting its coverage to sites that provide employment related services on a subscription basis (e.g. IMDb, IMDb Pro, StudioSystem), but First Amendment activists have still argued that the effects could be broader.
In his own op-ed for The Hollywood Reporter, the Internet Association's Michael Beckerman spoke out against age discrimination in Hollywood while arguing that "the law would seriously undermine some of our most fundamental rights, while doing nothing to eliminate discrimination in casting."
Beckerman, who is the president and chief executive of the Internet Association, called Carteris's argument "problematic" for a number of reasons:
Requiring the removal of factually accurate age information across websites suppresses free speech. This is not a question of preventing salacious rumors; rather it is about the right to present basic facts that live in the public domain. Displaying such information isn't a form of discrimination, and internet companies should not be punished for how people use public data.
In addition to these immediate harms, permitting unconstitutional limitations on free speech — even in the pursuit of similarly noble intentions — opens up a Pandora's box for more harmful consequences in the future. Currently, the law would target entertainment sites such as IMDb from posting age information about actors. But consider this: If the goal is to prevent discrimination by limiting information, should lawmakers force redactions from any website, even Wikipedia?
Slippery slope scenarios aside, government overreach is still a very real concern in regard to AB 1687. According to Caplan, the government's concern that the information in question could be used to engage in discrimination doesn't give them the right to block its publication.
"That's not a proper role for government under our system of free speech," Caplan said. "We don't make it illegal to publish truthful information because we're afraid that somebody might misuse it."
This post was updated after publication to include an interview with Aaron H. Caplan.
