AB 1687: Actors' ages are off limits

It is no secret that age discrimination in Hollywood, particularly against women, limits employment opportunities available to working actors. In theory, all that should matter when considering whether to cast an actor as a character is whether the actor can believably portray that character's age. In practice, however, if the casting decision-makers know the actor's actual age, their willingness to cast the actor to portray ages different than the actor's age diminishes - or vanishes entirely. This practice hits hardest for women over 40 years old. For the rare superstar like Meryl Streep, the fact that her age is known may not create an impediment because her talent is established and her brand incorporates her age. For an up and coming actress, however, for whom maximizing the roles she can play is crucial to getting a break, having her age known can be extremely limiting - and, as she approaches age 40, it can deny her access to an ever shrinking pool of job opportunities.

IMDb.com is a website that aggregates publicly available information about the entertainment industry. It has also, through various paid subscription services, become a crucial professional resource within the casting industry. IMDb has a policy that once an actor's age is published on its web site, it will not depublish that information, even if the actor requests it to avoid age discrimination. Actors have for years decried this policy, complaining that even though an individual's age is technically public information, IMDb's ability to aggregate and channel this information to casting decision-makers - thereby undermining actors who have made great efforts to keep this information relatively inaccessible - facilitates age discrimination in casting.

In September, the Legislature passed Assembly Bill 1687 to address this problem. As of Jan. 1, 2017, the law's purpose is "to ensure that information obtained on an Internet Web site regarding an individual's age will not be used in furtherance of employment or age discrimination." The law provides that any "commercial online entertainment 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 ... [¶] Publish or make public the subscriber's date of birth or age information in an online profile of the subscriber."(Civ. Code Section 1798.83.5(b).) Under this statute, once an actor pays IMDb to be included in its casting-related services, IMDb must remove the actor's age from his or her profile on request.

Any law that requires an online publication to remove publicly available information on request raises legitimate First Amendment concerns. Not surprisingly, IMDb has recently challenged the law in federal court. But like free speech, preventing age discrimination is a compelling governmental interest. Whether the law is ultimately found constitutional therefore may turn on whether it is sufficiently narrowly tailored to accomplish that interest.