The Ninth Circuit Court of Appeals issued a disappointing decision in SAG-AFTRA’s fight against age discrimination in the entertainment industry. The Court affirmed a trial court’s earlier decision preventing enforcement of Assembly Bill 1687 (“AB 1687”) as unconstitutional. AB 1687 requires subscription-based entertainment casting/hiring databases such as IMDbPro to remove paid subscribers’ date-of-birth information from its websites, including IMDb.com, upon request. The State of California and SAG-AFTRA, as the original sponsor of the legislation, had appealed the trial court’s ruling, arguing that AB 1687 merely regulated a contractual relationship between IMDbPro and its subscribers and was not the kind of speech the First Amendment affords its greatest protections.
“We’re very disappointed by the decision, but it changes nothing about SAG-AFTRA’s commitment to change IMDb’s wrongful and abusive conduct. Neither I nor our members will stop speaking out until this outrageous violation of privacy used to facilitate discriminatory hiring ends,” said SAG-AFTRA President Gabrielle Carteris.
“The Court’s conclusion that this law wouldn’t have a major impact on age discrimination in the entertainment industry is simply ill-informed. It highlights why it was so wrong for the trial court judge to deny us the opportunity to discover and present evidence that we know would have conclusively proved that point. Although no decision has been made about possible further appeals, SAG-AFTRA and our members will continue to seek out creative solutions to IMDb’s recalcitrance,” said SAG-AFTRA Chief Operating Officer and General Counsel Duncan Crabtree-Ireland.
In its briefing and oral arguments, SAG-AFTRA emphasized the practical application of the industry’s use of age information found on IMDbPro and its companion sites and its disproportionate impact on older cast and crew (particularly women and people of color) being passed over for jobs. While the Ninth Circuit acknowledged the critical importance of combating age discrimination in the entertainment industry, it nevertheless found that AB 1687’s requirement that IMDb remove age and birth dates from IMDb.com constituted an unconstitutional restraint on speech. The Ninth Circuit also recognized that publication of a person’s age and birth dates implicates privacy concerns, but declined to apply precedents calling for lesser constitutional protections for its publication.
SAG-AFTRA has been engaged in a years-long effort to reduce the rampant age discrimination that exists in casting, and which has immense adverse impact on employment opportunities for older performers, especially women and people of color. The single most egregious facilitator of this discrimination is IMDb, through its insistence on not only publishing but also promoting the ages and dates of birth of performers, especially non-celebrities for whom that information is not generally available. In 2017, at SAG-AFTRA’s behest, the State of California enacted legislation addressing this problem. Instead of correcting the problem or mitigating the harm, IMDb filed a lawsuit seeking to block the law from taking effect, which resulted in this case.
The world has changed so much since the IMDb law was passed in California and more and more citizens realize the importance of controlling their data. It’s a shame the Ninth Circuit feels that performers don’t share those same rights and are open to employment discrimination.
SAG-AFTRA was supported in its appeal by the AARP, AARP Foundation, Alliance of Retired Americans, Association of Talent Agents, Communication Workers of America, Studio Transportation Drivers, Local Union No. 399 of the International Brotherhood of Teamsters, California Labor Federation, Greenlight Women, Transgender Legal Defense & Education Fund, Inc., Transcend Legal, Inc., Equality Federation, National LGBTQ Task Force, Transgender Law Center, GLAAD, L.A. County Supervisor Sheila Kuehl and Berkeley Law Professor Catherine Fisk.