The Screen Actors Guild-American Federation of Television and Radio Artists ("SAG-AFTRA") is firmly standing behind the controversial California law that requires IMDb to remove age and birth date information from an actor’s profile upon request. On Thursday, the guild filed papers opposing IMDb's bid to have the law declared unconstitutional.
IMDb, an Amazon.com subsidiary, is suing over the law on free speech grounds. The plaintiff has brought a summary judgment motion that argues that the statute passed last year by California lawmakers is a content-based restriction that isn't narrowly tailored to address the intended interest of combatting age discrimination in the entertainment industry. Besides nodding to how people like to debate actors' ages and complaining how the law censors truthful information in the public interest, IMDb suggests there's a better way to crack down on age bias.
"California could achieve its goal of combatting age discrimination by, for example, enforcing existing anti-discrimination laws, or by imposing more significant penalties on those who discriminate," states plaintiffs' memorandum.
SAG-AFTRA, an intervenor in the dispute, rejects the First Amendment flag that IMDb is waiving "consequences be damned."
"While Plaintiff argues that the statute at issue infringes upon a core constitutional right to comment on the entertainment industry and report news about celebrities, it is in fact nothing of the sort," writes the guild's attorney, Douglas Mirell at Harder Mirell & Abrams. "For one thing, many of the people who are protected by the statute are either minor celebrities or have little or no fame whatsoever. Moreover, nothing in the statute prevents anyone from debating the issue of age discrimination, discussing the lives of celebrities, or engaging in similar expression. Plaintiff’s website publishes everyone’ s age regardless of whether it is relevant to any public issue at all, and does so without any comment or context. This is not an invitation to public debate. Rather, it is an open invitation for casting directors to engage in illegally discriminatory conduct."
Both the guild and California's state attorney general Xavier Becerra wanted discovery to explore age discrimination in the entertainment industry and how IMDb might contribute. The judge has already issued a preliminary injunction on the law and found that IMDb is likely to prevail. Accordingly, the judge wouldn't permit much discovery in this case. Nevertheless, SAG-AFTRA contends that discovery would show that age discrimination "is rampant within the entertainment industry," that plaintiff's website is the "go-to" place for casting information, and that removal of age information would make discrimination more difficult.
The guild has also put forward a declaration from Marilyn Szatmary, a professional who has done both casting and worked at a talent agency. She recounts here experiences where she would pitch clients for roles only to be told that the performer was "too old."
A summary judgment opposition brief from Becerra poses the issues slightly differently. California is defending its new law as a valid regulation of voluntary commercial contracts, referring to the way actors sign up for IMDb's pro site only to potentially have their information used on the free version. The state's attorney general writes that "the First Amendment is not the source of 'limitless' protection, not even for the publication of truthful information acquired lawfully."
In support of that, Becerra's legal team points to an interesting 1991 Supreme Court case that dealt with a newspaper that had promised confidentiality to a source and then got in trouble for breaching what was deemed to be a contract. The court in that case noted that there may be "incidental effects" on the newspaper's ability to gather and report news, but it was shielded.
The brief goes on to argue that the law in question is "hardly sweeping in scope. On the contrary, it narrowly proscribes the disclosure of a discreet category of information in an online profile of the subscriber. And the only reason the proscription extends to the publicly-accessible IMDb.com (as opposed to only IMDbPro), is a result of the decision by IMDb to effectively join its free Web publication to a fee-for-service product. Such an arrangement cannot be used to insulate IMDb from a legitimate business regulation. After all, a subscriber pays a fee to IMDbPro, effectively 'hiring' the service to host his or her online profile, assist with business connections, access and facilitate employment opportunities, and so on. It is undisputed that IMDbPro allows a paying subscriber to omit any mention of date of birth or age information from his or her profile. Thus, there is a basic unfairness to allowing IMDb to turn around and publish that same information on another site it owns and controls, not to mention makes freely available, just because it happens to be outside the subscription."
California's attorney general also warns that if the judge strikes the law as IMDb wishes, it would "imperil a host of similar nondisclosure laws," referring to various privacy statutes that have been enacted at the federal level. Among those cited are the Video Privacy Protection Act and teh Children's Online Privacy Protection Act.