HOLLYWOOD, Calif.Age discrimination is illegal, but in some areas of employment, it’s still fairly common, especially in the entertainment industryand that definitely includes the adult entertainment industry. After all, if an adult actress is in her 20s or 30s, no matter how young she looks, it’d be more difficult obtaining a role in, say, Teen Babysitters in Heat if her actual age became widely known. Hollywood actresses (and even actors) face similar problems, which is why, in 2016, entities such as the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) pushed for the passage of what became California Assembly Bill 1687, which, according to an article by Elizabeth Nolan Brown, was ostensibly designed “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.” However, what the bill, which was eventually signed into law, actually did was prohibit a small number of websites, including most notably the Internet Movie Database (IMDb.com), from publishing a person’s age if the person objected to the site’s doing so. The law was injuncted almost as soon as it was signed and never went into effect, and in 2018, IMDb sued state Attorney General Xavier Becerra and SAG-AFTRA to get the law thrown out in its entiretyand that’s exactly what a three-judge panel of the Ninth Circuit Court of Appeals did on June 19. The decision is based on two basic legal principles: First, that the law appeared to target the speech of just one specific website, IMDb.com and its affiliated IMDbPro.com, and second, that the law created a content-based restriction on speech, and was thus subject to strict scrutiny, a barrier which the court ruled that the defendants failed to overcome. Particularly referenced in the court’s decision was IMDbPro, a subscription-based site that the court described as “Hollywood’s version of LinkedIn,” where “job-seeking subscribers create a quasi-resume? by uploading headshots, demo reels, prior jobs, and other biographical information. In turn, casting agents and producers, who also pay to subscribe, access these profiles through IMDbPro to cast actors and hire crews for projects.” The law itself specifically targeted “A commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual for a subscription payment “IMDbPro’s exact service. It is known that several adult actresses are among those listed on IMDbPro, though none have yet come forward with reports of age-based discrimination, nor have any expressed opinions on the ruling. The law also required IMDb/IMDbPro to remove a person’s age from the database upon a subscriber’s requestsomething IMDbPro has voluntarily done since 2010even though companion site IMDb is non-subscription and open to the public. SAG-AFTRA had charged that including age information in an actor’s/actress’s profile on IMDbPro “facilitat[ed] discriminatory conduct,” and in its decision, the court noted a lawsuit Hoang v. Amazon.com as well as an article published in The Guardian (UK) where actress Maggie Gyllenhaal charged that at 37, she was deemed “too old” to play a role opposite a 55-year-old man. The law also prohibited IMDbPro from “publishing age information on any public ‘companion’ website, such as IMDb.com, without regard to the source of the information,” and that restriction became the focus of the Ninth Circuit’s ruling. However, the ruling first dealt with the content-based aspect of the case, and quickly concluded that the law was indeed a content-based restriction on IMDb’s speech and should be overturned even if there were no other reasonlike the state’s claim that the statute “merely regulates contractual obligations between IMDb and subscribers to IMDbPro,” and that the speech at issue was entitled to reduced protection as either commercial speech, speech that facilitates illegal conduct, or speech implicating privacy matters. The court rejected all of those. The decision then went on to analyze how AB 1687 failed the “strict scrutiny” test, noting that the law was not the “least restrictive means” by which its goal could be accomplished, nor was it “narrowly tailored” to accomplish that goal, and thus must be overturned. SAG-AFTRA President Gabrielle Carteris announced in a press release her and her organization’s disappointment in the court’s decision, “but it changes nothing about SAG-AFTRA’s commitment to change IMDb’s wrongful and abusive conduct,” she promised. “Neither I nor our members will stop speaking out until this outrageous violation of privacy used to facilitate discriminatory hiring ends.” The full decision may be found here.
written by: Mark Kernes