A new California anti-discrimination law has been criticized as unconstitutional, but a more pressing question might be whether or not it can be effective in combating age bias in Hollywood.
Last week, California Governor Jerry Brown enacted into a law a bill that would require the Internet Movie Database and other subscription-based entertainment sites to remove subscribers’ birth dates upon request. The Screen Actors Guild had vocally advocated for the bill, AB 1687, as a counter-measure to rampant age discrimination in the entertainment industry, and celebrated its passage in a statement from SAG-AFTRA president Gabrielle Carteris on the union’s website.
“Like all employees, performers deserve a fair opportunity to prove what they can do, and this bill will help them do just that,” Carteris, who was well past her teenage years when she got her big break in the original Beverly Hills, 90210, said in the statement. The actress has said that she is certain she would not have been given the 90210 role had the casting directors been aware of her actual age.
As detailed in a legistlative summary, the new law “Prohibits a commercial online entertainment employment service provider, as defined, that enters into an agreement to provide certain employment services from publishing information about the subscriber’s age in an online profile of the subscriber, and would require the provider to remove the subscriber’s age information from public view in any online profile of the subscriber on any companion Internet Web site under the provider’s control, if requested by the subscriber.”
While the new law is, at least in theory, a victory for SAG, actors who wish to control what personal information becomes public, and those against age-based discrimination in general, this one measure is certainly not going to abolish age discrimination overnight. Critics of the law have argued it is unconstitutional and a violation of free speech. “The statute seems to me of the most dubious constitutionality,” First Amendment lawyer Floyd Abrams of New York’s Cahill Gordon & Reindel told The Hollywood Reporter. “Birth dates are facts. It's hard to see how the government, consistently with the First Amendment, can bar or punish their disclosure.”
The central conflict seems to lie in whether or not the information posted on IMDb qualifies as commercial speech, which does not benefit from the same degree First Amendment protections as private or journalistic speech. IMDb’s non-subscriber arm is accessible to anyone, and includes biographical details like a performer’s birth date. More detailed information like agent contacts is available through the subscription-based IMDb Pro; and paying subscribers can also submit their resumes and headshots for consideration among agents and casting directors using the website. As THR pointed out, the law only applies to databases that allow paying subscribers to use it to attract prospective employers, but companion sites under the same control -- like the free version of IMBb -- will be subject to the same legislation.
From THR:
UCLA Law School’s Eugene Volokh, a First Amendment expert, says the IMDb Pro information is indeed commercial speech — “i.e., speech that is distributed in order to propose a commercial transaction” (hire this actor) — but that the information on the free site is not, because the age information on that consumer-facing site doesn’t propose a commercial transaction. “That information is functionally fully protected speech, not the less-protected commercial advertising of services,” said Volokh. “I don’t think that the law can require IMDb to remove the age information even from the publicly available [site], for which the great majority of readers aren’t employers but just curious members of the public.”
UC Irvine Dean and Constitutional scholar Erwin Chemerinsky agreed the new law appears to be in conflict with First Amendment protections. “Creating liability for the truthful reporting of lawfully obtained information is deeply problematic under the First Amendment,” told THR. “It is different to say ‘men only’ or ‘women only’ or ‘whites only’ in an ad. That is discrimination that is impermissible. A birthday or an age is a fact, and I don’t think there can be liability under the First Amendment for publishing true facts.”
The publishing of actors’ factual ages may be contributing to the problem of age-based discrimination in Hollywood, but alone is not discrimination itself. Still, SAG-AFTRA COO and general counsel Duncan Crabtree-Ireland believes the law should be upheld in the interest of the greater good of fighting age discrimination. “Both sites clearly constitute less-protected commercial speech” Crabtree-Ireland told THR. “In any event, the substantial government interest in preventing age discrimination is more than sufficient to justify this narrowly tailored rule.”
Constitutionality aside, it’s difficult to imagine what this law will do in the short term to overcome age discrimination in Hollywood. Even if IMDb is required to delete birthdates for the majority of its membership (highly unlikely for a number of reasons, not the least of which is that each removal will require an individual request), journalists, news outlets and non-commercial organizations with full protection from the First Amendment can and likely will continue to publish actors’ birthdates and ages, information which is readily available outside of IMDb, even if the database may often be the original source. If you do a Google search of an actress’ age (which according to Google autocomplete, is among the most popular searches for almost any female celebrity), IMDb is typically not the first result that includes the birthdate. Google’s own entry often includes it, and then there’s Wikipedia which is not a commercial enterprise and therefore could not be subjected to the AB 1647 law.
It appears that law will primarily benefit future Hollywood generations and/or lesser-known performers, as the age of most any actor with a relatively high profile by now can be confirmed with or without IMBb, unless that individual has taken careful steps since the beginning of their career to obscure their birthdate. In putting up one barrier against ageist practices, the passage of the law can be seen as a step in the right direction, but it will very likely not have any meaningful impact unless there is a culture change, and IMDb is only a tiny fraction of an ageist culture. Perhaps it’s just that change that Carteris and other advocates for the law are helping to bring about, but at this point it is difficult to see how legislation that is being accused by some as censorship will have a meaningful impact on an industry bias that our society at large eagerly perpetuates.
If IMBb does not challege the AB 1687 law, it will go into effect on January 1, 2017.
