California’s Effort to Suppress the Publication of Age Information Violates the Constitution–IMDb v. Becerra

IMDb has a subscription service, where subscribers can remove their age from their personal profiles (this feature wasn’t at issue in this case), and a free service, where IMDb displays an actor’s age (compiled from unspecified sources) even if the actor deleted the age information in the subscription service.

In Hoang v., an actress couldn’t hold IMDb liable for publishing her true age even though she alleged that it led to age discrimination against her. At the urging of the Screen Actors Guild, California passed a law to overturn the Hoang ruling. The law prohibits (1) “the publication of age information (upon request) on paid-for subscriber profiles hosted by a ‘commercial online entertainment employment service provider,'” and (2) “a provider from publishing age information on any public ‘companion’ website, such as, without regard to the source of the information.” IMDb challenged the law on Constitutional grounds. The Ninth Circuit sided with IMDb.

The court says the law is content-based because it restricts a single category of speech (age information). To avoid strict scrutiny, the government claimed the statute deserved reduced scrutiny because it addressed:

  • commercial speech. “The facts here do not present a close question; public profiles on do not ‘propose a commercial transaction.’…The content is encyclopedic, not transactional.”
  • illegal speech. “We find nothing illegal about truthful, fact-based publication of an individual’s age and birthdate when that information was lawfully obtained.” The court says the illegal speech exception cannot be stretched to cover “facially inoffensive speech that a third-party might use to facilitate its own illegal conduct.”
  • speech implicating private matters. “Content-based restrictions on public speech touching on private issues” still trigger strict scrutiny.

Because none of these exceptions apply, the court applied strict scrutiny. Naturally, the statute fails. The court credits the legislative goal of reducing age discrimination, but the legislature did not properly show that it chose the least restrictive means. The law also isn’t narrowly tailored because it sought to suppress age information only on IMDb, not the other place where that information might be published. Later, the court adds: “An unconstitutional statute that could achieve positive societal results is nonetheless unconstitutional.”

While it was always clear that the anti-IMDb law violated the First Amendment, the court’s discussion has potentially broader implications for other privacy laws.

The court addressed the First Amendment/privacy interface:

Although many state and federal statutes “regulate data collection and disclosure” without implicating the First Amendment, such statutes regulate the misuse of information by entities that obtain that information from individuals through some exchange. Such restrictions differ significantly from AB 1687, which by its terms prohibits the publication of information without regard to how it was obtained.

This is a confusing passage because it collapses together three discrete stages in the lifecycle of data: (1) data gathering, (2) data disclosure/publication, and (3) data misuse. The court isn’t specific about where IMDb gets its age data used in the free service, but this passage implies that the data source may matter. At minimum, if the data is obtained from other publicly available sources, it seems illogical to restrict IMDb’s republication even at the data subject’s request. As a result, the CCPA probably had to exclude information in government records to satisfy the Constitution (something the legislature only fixed last year).

The court also confusingly distinguishes the constitutionally-permissible restrictions on credit reporting agencies selling private consumer data:

the “speech” at issue—the sale of data—was itself an inherently private exchange between private parties. Here, in contrast, IMDb posts the information on its website free of charge for the public to review. This fact alone imparts an inherently public character to the speech at issue.

I don’t understand this distinction. Presumably the CRA’s data sale is more commercial than editorial content publication. Even so, in neither case does the subject data propose a commercial transaction, so I’m not sure why the business model of the publisher should affect the speech’s nature. Even if speech is published to limited audiences and not to a global Internet audience, it still gets the same First Amendment protections, no?

I have been thinking about the opinion’s applicability to the CCPA. In particular, the anti-IMDb law provided a mandatory erasure right of truthful age data. The CCPA similarly provides a broad erasure right that can reach truthful published data. The ruling suggests that companies may be able to reject some data removal requests because they curtail the business’ speech rights. Could this principle also support businesses refusing opt-outs of data “sales” (many of which are not actually cash-for-data “sales”) to the extent that such sales constitute publication?

Case citation: Inc. v. Becerra, 2020 WL 3396306 (9th Cir. June 19, 2020)

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