“I used to be a lawyer for the government, and I defended a number of laws that were very challenging to defend,” U.S. District Judge Vince Chhabria told a California deputy attorney general at a hearing on Thursday. “I’m trying to remember if I defended a law as challenging to defend as the one you’re defending now.”
Chhabria was referring to AB 1687, a state law passed in September that requires “commercial online entertainment service providers” like the movie industry website IMDb to take down actors’ ages upon request.
IMDb sued the state in November, claiming lawmakers bowed to Hollywood special interests when they passed the legislation. IMDb says the law impedes its First Amendment right to publish factual information and fails to further the law’s intended purpose of deterring age discrimination in the film industry.
On Thursday, Chhabria asked the state why IMDb’s motion for a preliminary injunction should not be converted to a motion for summary judgment, given that no new facts obtained through discovery would likely change his analysis on the law’s constitutionality.
“Have you given serious thought to the probability that by pressing forward with discovery your clients could be exposed to a dramatically higher fee award at the end of the day?” Chhabria asked the state’s attorney.
California Deputy Attorney General Anthony Hakl III replied that the state wants to see IMDb’s subscriber contracts for its IMDbPro service. That service gives film and TV professionals access to nonpublic information, such as contacts for agents and employers. It also lets subscribers hide ages and birth dates on their profiles and upload resumes, photos and demo reels.
Hakl said because the state law regulates contracts between subscribers and “employment service providers,” the First Amendment does not apply.
In court filings, IMDb argued the state is using the “mere existence of a subscriber agreement” to circumvent First Amendment protections and ban it from posting factual age information, regardless of whether that information came from the subscriber or another source.
Representing the intervening defendant Screen Actors Guild, which lobbied to pass the legislation, attorney Douglas Mirell argued the state should be given a chance to seek evidence on how actors’ ages are obtained and how that information is used by casting directors.
Chhabria posed the same question to Mirrel that he asked the state – had he considered that further litigation would increase the attorneys’ fees award for IMDb that his client could be liable to pay?
Mirell said he would discuss that issue with his client, adding it might affect “the scope of discovery” that the state and Screen Actors Guild would seek in the case.
Chhabria also questioned how prohibiting one source from publishing actors’ ages would further the government’s intended purpose of deterring age discrimination in the movie business.
“How does preventing one website of the millions of websites out there publishing people’s age even remotely help prevent age discrimination from happening?” Chhabria asked.
Hakl said the law would help stop age discrimination because IMDb is the “go-to source” for casting decisions.
Mirell added that IMDb touts itself as “the most comprehensive and authoritative source of information about the entertainment industry,” but Chhabria said that doesn’t mean decision makers can’t use other sources to find out actors’ ages.
The judge declined to hear any arguments from IMDb’s attorney on Thursday, signaling he had already made up in his mind on whether the law unconstitutionally restricts free speech.
Chhabria issued no official ruling but strongly indicated he would grant IMDb’s motion for an injunction, and ultimately declare the law unconstitutional.
IMDb was created in 1990 by the company’s CEO Collin Needham, and its website was launched in 1996. The online database of on-screen entertainment has grown to feature 3 million movies and TV programs along with 6 million cast and crew members. It boasts 250 million unique visitors each month, according to IMDb’s lawsuit.