Imdb.Com Inc. v. Becerra

• Decision Date: 19 June 2020
• Docket Number: No. 18-15469,No. 18-15463,18-15463
• Citation: 962 F.3d 1111
• Parties: IMDB.COM INC., a Delaware corporation, Plaintiff-Appellee, v. Xavier BECERRA, Defendant, and Screen Actors Guild-American Federation of Television and Radio Artists, Intervenor-Defendant-Appellant. IMDb.com Inc., a Delaware corporation, Plaintiff-Appellee, v. Xavier Becerra, in his official capacity as Attorney General of the State of California, Defendant-Appellant, and Screen Actors Guild-American Federation of Television and Radio Artists, Intervenor-Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

962 F.3d 1111

IMDB.COM INC., a Delaware corporation, Plaintiff-Appellee,

v.Xavier BECERRA, Defendant,andScreen Actors Guild-American Federation of Television and Radio Artists, Intervenor-Defendant-Appellant.

IMDb.com Inc., a Delaware corporation, Plaintiff-Appellee,

v.Xavier Becerra, in his official capacity as Attorney General of the State of California, Defendant-Appellant,andScreen Actors Guild-American Federation of Television and Radio Artists, Intervenor-Defendant.

No. 18-15463

No. 18-15469

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 9, 2019 Pasadena, California

Filed June 19, 2020

Douglas E. Mirell (argued) and Kelly M. Raney, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California, for Intervenor-Defendant-Appellant.

Amie L. Medley (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Defendant-Appellant.

John C. Hueston (argued), Hueston Hennigan LLP, Newport Beach, California; Moez Kaba, Adam Olin, and Jenna G. Williams, Hueston Hennigan LLP, Los Angeles, California; for Plaintiff-Appellee.

Barbara A. Jones and William Alvarado Rivera, AARP Foundation, Washington, D.C., for Amici Curiae AARP, AARP Foundation, Alliance of Retired Americans and Communication Workers of America, and AFL-CIO.

Elizabeth Rosenfeld and Michael R. Odoca, Wohlner Kaplon Cutler Halford & Rosenfeld, Encino, California, for Amicus Curiae Studio Transportation Drivers, Local Union No. 399 of the International Brotherhood of Teamsters.

Mary-Christine Sungaila, Haynes and Boone LLP, Costa Mesa, California; Polly Fohn and Natasha Breaux, Haynes and Boone LLP, Houston, Texas; for Amici Curiae First Amendment Scholars and Reporters Committee for Freedom of the Press.

David Greene, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, First Amendment Coalition, Media Law Resource Center, Wikimedia Foundation, and Center for Democracy & Technology.

Before: Johnnie B. Rawlinson, Mark J. Bennett, and Bridget S. Bade, Circuit Judges.

OPINION

BADE, Circuit Judge:

In 2016, the State of California—at the behest of the Screen Actors Guild ("SAG")—enacted Assembly Bill 1687 ("AB 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. ("IMDb"). IMDb sued the State to prevent future enforcement of the statute, arguing that it violated IMDb's First Amendment speech rights and other constitutional and statutory provisions. The district court agreed and enjoined the State's enforcement of the statute—first on a preliminary basis and then permanently after further briefing by the parties. Both the State and SAG, as an Intervenor, appealed to this court.

On its face, AB 1687 prohibits the publication of specific content, by specific speakers. Therefore, it is a content-based restriction on speech that is subject to strict scrutiny. Because the State and SAG fail to demonstrate that AB 1687 survives that standard, we affirm the district court.

BACKGROUND

True to its long-form name, the Internet Movie Database, IMDb operates a free, publicly available website that offers a comprehensive database of information about movies, television shows, and video games. Visitors to IMDb.com can peruse movie reviews, trivia, plot summaries, and fictional character biographies. The site also contains encyclopedic entries on cast and crew members in the industry. Often, but not always, these biographical entries contain the subject's age or date of birth. In total, IMDb.com contains more than three million unique pages for titles and more than six million entries for cast and crew. As of January 2017, it ranked as the 54th most visited website in the world.

Compiling the data found on IMDb.com takes work. But rather than employ its own in-house army of movie buffs for the job, IMDb relies on a cheaper, more abundant workforce: its users. Thus, similar to Wikipedia, anyone with an internet connection and a user account may update and provide information for the millions of pages on the site. IMDb, however, does not take a completely hands-off role. Instead, it employs a "Database Content Team" tasked with reviewing the community's additions and revisions for accuracy.

In 2002, IMDb launched a subscription-based service for industry professionals, known as IMDbPro, to complement its public facing site. Subscribers to IMDbPro span the entertainment industry, including A-List actors, role players, writers, set designers, makeup artists, camera operators, sound editors, and many others. IMDbPro functions more or less as Hollywood's version of LinkedIn. The job-seeking subscribers create a quasi-resumé by uploading headshots, demo reels, prior jobs, and other biographical information. In turn, casting agents and producers, who also pay to subscribe, access these profiles through IMDbPro to cast actors and hire crews for projects.

In 2016, citing concerns about age discrimination in the entertainment industry, SAG sponsored legislation that eventually became AB 1687. SAG called out IMDb specifically for facilitating discriminatory conduct, citing an unsuccessful lawsuit by an aspiring actress against the company.¹ Legislative history accompanying later versions of the bill pointed to a May 21, 2015 article from The Guardian , in which an Academy Award-nominated actress alleged that a casting director rejected her for a role because of her age.²

The California Legislature passed the measure, the governor signed it into law, and the statute took effect on January 1, 2017. 2016 Cal. Legis. Serv. Ch. 555 (codified at Cal. Civ. Code § 1798.83.5 ).

The statute provides that:

A commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following: (1) [p]ublish or make public the subscriber's date of birth or age information in an online profile of the subscriber [or] (2) [s]hare the subscriber's date of birth or age information with any Internet Web sites for the purpose of publication.

Cal. Civ. Code § 1798.83.5(b)(1)–(2). This provision requires that a subscription-based service like IMDbPro,³ upon a subscriber's request, must remove the subscriber's age or date of birth from that subscriber's paid-for profile.

But the statute contains a more controversial provision. If a subscriber asks a provider to remove his or her age or date of birth from a paid-for profile, the provider also must "remove from public view in an online profile of the subscriber the subscriber's date of birth and age information on any companion Internet Web sites under its control." Id. § 1798.83.5(c) (emphasis added). Thus, if asked to do so, IMDb must remove age information not only from a subscriber-curated profile on IMDbPro, as it has done in the past, but also from any separate profile publicly available on IMDb.com.

Before AB 1687 took effect, IMDb filed a complaint under 42 U.S.C § 1983 in the Northern District of California to prevent its enforcement. IMDb alleged that AB 1687 violated both the First Amendment and Commerce Clause of the Constitution, as well as the Communications Decency Act, 47 U.S.C. § 230(f)(2). IMDb later moved for a preliminary injunction to expedite the district court's consideration of the issue. SAG then moved to intervene to defend AB 1687 alongside the State. The district court granted IMDb's motion on First Amendment grounds and entered a preliminary injunction prohibiting enforcement of the statute. The State and SAG declined to exercise their rights to appeal that decision to this court in lieu of proceeding to the ultimate resolution of the matter in the district court.

Although the parties agreed to limit the litigation to IMDb's First Amendment claim, both the State and SAG requested limited discovery before completing summary judgment briefing. The court rejected the attempt but permitted the State and SAG to file a brief "to explain with specificity what discovery they want to conduct," including draft discovery requests. The State and SAG complied and submitted twenty-eight document requests and seven interrogatories. They also proposed conducting a Rule 30(b)(6) deposition of IMDb.

The State and SAG argued that the requests fell into five broad categories meant to show: (1) whether information on IMDB.com facilitates age discrimination, (2) IMDb's intent, (3) actual incidents of age discrimination, (4) whether IMDb uses improper means to gather information, and (5) the relationship between IMDb.com and IMDbPro. The State and SAG later stated that their requests would address the fundamental issue raised in the district court's preliminary injunction order: that "[t]he government has presented nothing to suggest that AB 1687 would actually combat age discrimination."

The district court held a hearing on the discovery requests, and the State reiterated that it designed the discovery requests to gather evidence to show that AB 1687 was "narrowly tailored to meet a compelling [government] interest." The district court rejected each proposed request in a written order. In that order, the district court noted that the State would need to show that it had "no other reasonable way to combat age discrimination in the entertainment industry." The district court took issue with the requests, describing some as "disturbing" and "an abuse of power" and noting that the State attempted to "[r]estrict speech first and ask questions later." Therefore, the district court concluded that, although discovery might be warranted in some First Amendment cases, the State failed to identify any ...