Can the government force a publication to omit information about a public figure? In general, the answer is no. We have this thing called the First Amendment, which not only guarantees freedom of speech but also provides limits on “prior restraint,” or preventing the publication of certain information.
Jaws dropped when we asked First Amendment experts about a new law, signed by Gov. Jerry Brown over the weekend, that forces IMDb.com, the Internet Movie Database, to remove the accurate ages of celebrities in cases where those people request it.
The idea is to prevent age discrimination in Hollywood. State Assembly majority leader Ian Calderon of Whittier says he wrote AB 1687 mainly to protect performers new to the film and television industry, since the ages of established stars are more likely to have been burnished into the internet's memory.
“Even though it is against both federal and state law, age discrimination persists in the entertainment industry,” Calderon said. “AB 1687 provides the necessary tools to remove age information from online profiles on employment referral websites to help prevent this type of discrimination. … This bill is aimed at protecting lesser known actors and actresses competing for smaller roles.”
The law makes IMDb out to be a entertainment insider's employment website, even though to a vast majority of users it's simply a Wikipedia for Hollywood. That could be a problem if this legislation is subject to a court challenge.
“This raises serious First Amendment problems,” says Irwin Chemerinsky, dean of UC Irvine's School of Law. “The law is clear that there is a First Amendment right to publish truthful information that is lawfully obtained. Holding someone liable for publishing accurate facts likely violates the First Amendment.”
If this ends up in court, the case could pit a publication's First Amendment rights against the state's interest in protecting its citizens against age discrimination and against violations of privacy.
“It probably could survive First Amendment scrutiny on the grounds the state would claim it has an interest in protecting private information and on the grounds it would prevent age discrimination on the front end,” said attorney Michael S. Overing, a free-speech expert at the USC Annenberg School for Communication & Journalism.
However, this law could be challenged in either state court or federal court, since it involves constitutional law, Overing said. In the case of the latter, U.S. courts likely would favor free speech over those other interests, the professor said.
Overing said that if he were challenging the legislation in federal court, he'd argue that information in IMDb serves as news as well as résumé content.
“I would make a First Amendment argument,” he said. “I would say my use of age is newsworthy and therefore I get to put it online and you can't make me take it down. The newsworthiness can give way when there's a compelling state interest — privacy and age discrimination. But it's going to take a real strong argument to prove that.
“You're trying to tell someone what they can and cannot say,” Overing added. “I find that really offensive.”
Peter Scheer, executive director of the First Amendment Coalition, says it's possible his organization could sue to block implementation of AB 1687. He questions whether the group would have standing in court, however, since it does not represent celebrities. It could, however, represent the everyday IMDb user. “In my view, this law is blatantly unconstitutional,” he said. “You can't rewrite history.”
He compared the law to a ruling by the European Union's Court of Justice that compels Google to remove search results on private individuals who have good reason to object to the links produced. For example, someone arrested years ago but otherwise rehabilitated could request that Google no longer provide results linking to that arrest. Such an edict wouldn't fly in the United States because of the First Amendment.
“You can't take out of circulation true facts because you don't like the true facts,” Scheer said. “IMDb is being forced by the government to censor itself.”
Indeed, one of the primary defenses against libel, for example, is truth.
“We would love to challenge this law,” Scheer said. “It was done with good intentions, but I'm sure that it's unconstitutional. What a stupid law.”