Short Take: Censor First, Justify After

There are many grievous wrongs to be found in LaLaLand, but for an actress, the worst of all is to be old. Sure, they may cry about the egregious discrimination against the marginalized, but they hate the wrinkled. So when actor central website, IMDb, included dates of birth in its bios, the Republic of California cried foul and passed a law to prohibit it from telling the truth if it made people feel bad.

At the urging of the Screen Actors Guild, the California Legislature passed, and the Governor signed into law, Assembly Bill 1687. Although the language of the statute doesn’t mention IMDb, it’s drafted to apply only to IMDb, with the goal of restricting the company’s ability to post information on (the public-facing website) about the ages of people in the entertainment industry. Specifically, the statute provides that if a person who subscribes to IMDb Pro asks the company to refrain from publishing her age on, the company must comply with that request. The theory behind the statute is that, by publicly posting information about the ages of people in the entertainment industry, makes it easier for casting directors and others in the industry to engage in age discrimination.

So IMDb sued, because First Amendment and all, compelling California to justify its law under the standard of strict scrutiny. It didn’t go as well as California hoped.

The government was able to articulate a compelling purpose (namely, a desire to combat age discrimination in the entertainment industry), but it was unable to present meaningful evidence or argument in support of the notion that the statute is actually necessary to achieve that purpose.

What to do when you have neither evidence nor argument to justify the need for censorship? Discovery!

The government (joined by the Screen Actors Guild, which has intervened to help defend the statute) has now filed a motion for discovery. The government seeks permission to serve 28 document requests and 7 interrogatories, and it seeks to take depositions of IMDb representatives on 7 topics.

As Judge Vince Chhabria notes, the usual next step is cross motions for summary judgment on the First Amendment issue, because the government either has its justification for censorship when it enacted a law that facially violates the First Amendment or not. What it does not do is try to discover a reason from the other side after the fact or harass a website into submission:

In addition, while the government’s approach to discovery in this context is disturbing, two of the discovery requests are even worse: they are an outright abuse of power. It’s difficult to conceive of a reason, other than harassment, for seeking communications between IMDb and the people who filed amicus briefs on IMDb’s behalf. It’s difficult to conceive of a reason, other than harassment, for seeking information about IMDb’s efforts to lobby against AB 1687. Certainly counsel for the government was unable to think of one at the hearing on this motion.

It’s not that discovery is never available, but it only serves to illuminate open questions of fact, of which none existed here.

But in this case, IMDb contends the statute violates the First Amendment on its face. Any argument that IMDb is not subject to the statute (which was drafted to apply specifically to IMDb) would be frivolous. And the government has identified no factual question that would meaningfully affect the analysis of the constitutionality of the statute on its face.

And with that, Judge Chhabria drops the hammer.

It’s one thing for a legislature to enact a speech restriction without an adequate justification. That sometimes happens. It’s another thing for the government’s lawyers to double down on their client’s constitutional error by imposing irrelevant, burdensome, even harassing discovery obligations on a party that seeks only to vindicate its First Amendment rights in court. That should never happen. The motion for discovery is denied.

The First Amendment applies to the Chardonnay State, even when they seek to stop the publication of the truth in the name of ending accuracy discrimination (or is age just a social construct too?). Or as the judge summed it up in one sentence:

Restrict speech first and ask questions later, the government seems to say.


H/T JimTyre

13 thoughts on “Short Take: Censor First, Justify After

  1. Ahcuah

    How is it that a desire to combat age discrimination is a “compelling purpose”? It’s not as if the preliminary injunction gives any better analysis to decide: “To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood.” It’s just a proclamation from the court without a hint as to why that should be so. While the denial of the motion for discovery certainly strongly vindicates the First Amendment, inflation of what counts as “compelling” seems to make it easier for governments to get their noses under the tent in the first place.

      1. Ahcuah

        Yes, an evil. But a “compelling” evil for strict scrutiny purposes? I have to admit I don’t understand how that’s determined (feelz maybe?). (And I know Congress just can’t proclaim an evil “compelling” and expect a court to buy that.)

        1. SHG Post author

          It was an age of value judgments, which found their way into precedent. Two generations later, it’s our reality. This is why laws and/or “living” constitutional interpretations based on transitory feelings present a problem. Yesterday’s feelz are tomorrow’s strict scrutiny.

  2. wilbur

    The biggest age discrimination problem in this country is that the generations born after me will have to pay for my SSN and Medicare/Medicaid benefits, with a near zero chance of them ever getting a cent themselves. Biggest Ponzi scheme ever devised and expanded.

    Not to hijack your post, of course. Let’s carry on with IMBD’s problems. I, for one, can advance a compelling reason to discover every actress’ age and other vital statistics.

    Seriously, how could any legislator – even in California – think this law would withstand a constitutional challenge? Maybe they didn’t, but I suspect a sizeable campaign contribution can blind one to constitutional deficiencies.

  3. PseudonymousKid

    Dear Papa,

    What is this? A sensible ruling on civil discovery on SJ? Awesome. Time to fire up PACER and see what the hell California could have possibly been asking. “Tell us why we should be allowed to restrict your speech?”


    1. SHG Post author

      Civil discovery makes it sound too generic, in which case I must pluck my eyes out. First Amendment, please, for the sake of my eyes.

  4. Jim Tyre

    As Judge Vince Chhabria notes

    We know what you think of comments criticizing your spelling, but have you ever had a comment complimenting it? Most folks, even some who practice before him, drop the second “h”. (Or is it the first one?) You got it right. Well done!

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