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Ninth Circuit rules California law requiring IMDb and other websites to remove actors’ age-related information on request is unconstitutional content-based restriction in violation of First Amendment.

Plaintiff, the Internet Movie Database (IMDb), sued the state of California asserting that its First Amendment rights were violated by California law AB 1687, a bill passed in 2016 to combat age discrimination in the entertainment industry. The statute requires that “a commercial online entertainment employment service provider” receiving a “subscription payment” for these services must, at the subscriber’s request, remove age-related information from the subscriber’s paid-for profile as well as from “any companion Internet Web sites under its control.” 

IMDb maintains a free public-facing website that offers a comprehensive database about movies and television shows, including profiles of actors and other entertainment industry professionals containing information that can be provided or updated by anyone with a user account. The company also offers “IMDb Pro,” a paid subscription-based service for entertainment industry professionals that, as described by the Ninth Circuit, “functions more or less as Hollywood’s version of LinkedIn” for casting and hiring purposes. The statute required IMDb, upon request from a subscriber, to remove the subscriber’s age-related information from his or her IMDb Pro profile as well as from IMDb’s free public-facing website. 

On IMDb’s First Amendment challenge, the district court granted IMDb’s request for a preliminary injunction prohibiting enforcement of the statute, and subsequently granted summary judgment in IMDb’s favor, ruling that the statute was an unconstitutional violation of IMDb’s First Amendment rights. On appeal, the Ninth Circuit affirmed. The Ninth Circuit focused its inquiry on the provision of the law requiring IMDb to remove age and date of birth information from the free public website. 

First, the court rejected the state’s argument that the First Amendment does not apply in the first instance because the statute is a law of general applicability merely regulating contractual obligations between IMDb and its subscribers. As the court explained, the law extends beyond IMDb’s agreements with IMDB Pro subscribers by prohibiting the publication of information on IMDb’s publicly available non-subscription site submitted by members of the public. Because the statute targets a particular category of content (age-related information), and restricts a particular category of speakers (IMDb and similar services), the court held that it imposes a content-based restriction that must withstand First Amendment scrutiny.

The court also rejected the state’s contentions that the regulated speech falls into certain categories of speech entitled to reduced First Amendment protection, namely, commercial speech, illegal speech and speech implicating private information. The regulated age information, the court held, was not commercial speech because it does not “propose a commercial transaction.” It also was not “illegal speech” because the publication of age information does not itself propose an illegal transaction, and the First Amendment does not permit the suppression of lawful speech “in order to deter conduct by a non-law-abiding third party.” Finally, while acknowledging that many statutes permissibly regulate disclosure of personal data, the court reasoned that, unlike those statutes, AB 1687 does more than regulate the disclosure of information obtained from individuals through some exchange, but rather prohibits the publication of information without regard to how it was obtained.

Accordingly, the Ninth Circuit applied the strict scrutiny test to determine the statute’s constitutionality, a “demanding standard” that requires the state to establish that there is no less restrictive means to further a compelling governmental interest, and that the statute is narrowly tailored to that end. As to the first factor, the court held that the state had failed to establish that there was no less restrictive, speech-neutral means to combat age discrimination in the entertainment industry, because it had not explored other means to do so “before resorting to the drastic step of restricting speech.” As to the second factor, the court explained that a content-based restriction is not “narrowly tailored” if it is either underinclusive or overinclusive in scope to achieve its aims. Here, the court explained, the statute was underinclusive because it “restricts only websites like while leaving unrestricted every other avenue through which age information might be disseminated.” Moreover, it extends protection not to everyone in the entertainment industry but only to paying IMDb Pro subscribers. The court thus held the statute not to be narrowly tailored because “it fails to reach several potential sources of age information and protects only industry professionals who both subscribe to [IMDb Pro] and who opt-in.”

Summary prepared by Wook Hwang and Jong-Min Choi