California’s Strange New Age Law

Have you ever been watching a television show or movie with characters supposedly of high-school age—think Gossip Girl, Mean Girls, Greece—and then been shocked to discover that the actors portraying these characters were significantly older than their on-screen portrayals? Finding out an actor’s age has become as simple as a brief search on a smartphone, most easily on the Internet Movie Database (“IMDb”). For reference, Leighton Meester was 21 when she started playing Blair Waldorf in Gossip Girl; Rachel McAdams was 26 when Mean Girls hit theaters, and Stockard Channing was 33 when she played the role of Rizzo in the iconic musical Greece. However, the ease with which one can identify these facts might soon be significantly halted due to some new controversial legislation coming out of California.
This past September, California’s Governor Jerry Brown signed legislation that requires certain entertainment web sites, such as IMDb, to either remove or initially omit an actor’s age or birth date upon request. The law known as AB 1697 will come into effect January 2017, though several lawyers and law professors have already raised constitutionality concerns. The legislation applies broadly to any entertainment database web site that allows paid subscribers to post headshots, resumes, or other information for prospective employment. Whilst aimed at combatting the issue of age discrimination in the Hollywood casting process, and thus most directly affecting actors, the law applies to all entertainment job categories. For jurisdictional purposes the law applies to any entertainment database that has minimum contacts with California. As attorney Jonathan Handel explained in an interview with NPR, what matters for purposes of applicability is a Californian user-base—“IMDb is actually owned by Amazon. Whether it’s run out of California, whether it’s one out of Seattle, Wash., doesn’t matter. They have a lot of California users. They know it, and that means that as far as a matter of jurisdiction, they would be covered by this law.”
The Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”), the primary labor union representing film and television actors and performers worldwide, lobbied significantly for the legislation, which was initiated by past president Ken Howard and spearheaded by current president Gabrielle Carteris. In a guest column for The Hollywood Reporter, Carteris wrote of her support for the law and emphasized that ageism “permeates Hollywood’s casting process…most distinctly for women.” Carteris had played the role of 16-year old Andrea Zuckerman on Beverly Hills 90210 at the age of 29, and credits this casting decision to the fact that “electronic casting sites did not exist in 1990,” whereas nowadays they are “prevalent and influential” in affecting casting decisions.
On the opposite side of the debate, the technology community fiercely opposed the law as a violation of the First Amendment right to free speech. Michael Beckerman, Internet Association president and CEO, wrote a guest article for The Hollywood Reporter opposing the law prior to its enactment. Beckerman noted that age discrimination is a serious issue in Hollywood casting and that the internet industry “strongly supports the worthy goal of eliminating such a distinction and unfairness” but that AB 1687 “would seriously undermine some of our most fundamental rights, while doing nothing to eliminate discrimination in casting.” He further added that the “removal of factually accurate age information across websites suppresses free speech.” Several prominent legal scholars have expressed their concerns of the law’s violation of free speech in line with the Internet Association’s views. First Amendment expert Floyd Abrams of Cahill Gordon & Reindel shared his view that AB 1697 seems “of the most dubious constitutionality.” “As for limiting the impact of the statute to certain sites and protecting only some people’s birth dates, that offers yet another basis for constitutional challenge,” said Abrams. “Speaker-focused limitations on speech are less, not more, likely to pass constitutional muster. The same is true of speech-limiting laws that seem designed to protect only a favored class of people.” Carteris’ response to the law’s likely “chilling effect on free speech” is that “it is highly doubtful as the bill seeks a narrowly tailored fix that applies only to subscription-based entertainment websites.”
Will AB 1697 ultimately succeed in its fight against age discrimination? The answer to this depends largely on whether or not the statute is in fact constitutional, which will likely turn on whether or not the publishing of birth dates can be considered commercial speech, in which case it would be entitled to lesser protection. Experts have varying opinions on the matter, but it will be interesting to see if IMDb actually complies with AB 1697 next year and if its constitutionality is ever actually challenged.
Moreover, assuming AB 1697 is ever upheld as constitutional, would the law present any measurable improvement regarding the issue of Hollywood’s rampant age discrimination? This seems unlikely. If actors of a certain age are having trouble getting cast in films and television, I believe the issue is a lack of older characters being written for these programs, and not a bias among casting directors. Frankly, this law appears to be a fruitless and rather strange strategy for tackling such an issue.
Megan Levy is a J.D. candidate, 2018, at NYU School of Law.