From Friday’s decision (which I think is generally quite correct) in IMDb.com v. Becerra, written by Judge Bridget Bade and joined by Judges Johnnie Rawlinson and Mark J. Bennett:
In 2016, the State of California—at the behest of the Screen Actors Guild …—enacted Assembly Bill 1687 …, which prohibits a specified category of websites from publishing the ages and dates of birth of entertainment industry professionals. The statute appears to target a single entity: IMDb.com Inc….
The statute imposes two separate but closely related prohibitions.
First, it forbids the publication of age information (upon request) on paid-for subscriber profiles hosted by a “commercial online entertainment employment service provider.” The State and SAG largely focus on this portion of the statue, which restricts IMDbPro. But the parties do not dispute that IMDb already affords its subscribers the option to remove their ages from their IMDbPro profiles (but not from any companion profile on the public site) and that it has done so since 2010. There has been no suggestion that IMDb would change this policy in the absence of AB 1687.
Second, the statute prohibits a provider from publishing age information on any public “companion” website, such as IMDb.com, without regard to the source of the information. IMDb contests this provision…. Because this aspect of the statute presents the central issue on appeal, we focus our inquiry here….
The court concluded that the law was a content-based speech restriction, because “[i]t prohibits the dissemination of one type of speech: ‘date of birth or age information,'” and, “perhaps more troubling, it restricts only a single category of speakers.”
We are unpersuaded by the State’s and SAG’s argument, relying on Cohen, that the statute merely regulates contractual obligations between IMDb and subscribers to IMDbPro…. [T]he statute reaches far beyond the terms of any subscriber agreement. It applies not only to paid-for profiles—like those on IMDbPro—but also to entries on the publicly available, non-subscription site IMDb.com, regardless of agreement between IMDb and its subscribers.
The statute does not restrict only information misappropriated through the parties’ contractual relationship; it also prohibits the publication of information submitted by members of the public with no connection to IMDb. These restrictions apply regardless of whether an IMDb public profile existed independent of, or prior to, any contractual agreement between IMDb and an IMDbPro subscriber.
The court concluded that the law wasn’t limited to “commercial speech,” because that category covers speech that “does no more than propose a commercial transaction,” and “public profiles on IMDb.com do not ‘propose a commercial transaction,'” “even assuming IMDb has a financial interest in its public profiles.”
The law also wasn’t limited to “speech that itself proposes an illegal transaction,” even though the government argue that this information might facilitate age discrimination by producers: “[W]e find nothing illegal about truthful, fact-based publication of an individual’s age and birthdate when that information was lawfully obtained,” even if “a third-party might use [the speech] to facilitate its own illegal conduct.” “[I]t would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.” … “[T]he fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech.”
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