962 F.3d 1111
9th Cir.
2020
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Background

  • California enacted AB 1687 (Cal. Civ. Code § 1798.83.5) prohibiting certain subscription-based entertainment employment service providers from publishing subscribers’ dates of birth or ages and, upon request, requiring removal of that information from any "companion" public websites under the provider’s control.
  • The statute appeared aimed at IMDb: a free, public, user‑contributed database (IMDb.com) plus a paid industry service (IMDbPro). IMDb already allowed age removal on IMDbPro but not from the public site.
  • IMDb sued the State (and intervening SAG‑AFTRA) under 42 U.S.C. § 1983 alleging AB 1687 violated the First Amendment; the district court granted a preliminary and then permanent injunction.
  • The Ninth Circuit focused on the companion‑website provision (removal from public IMDb.com regardless of source of information) and evaluated whether the law is a content‑based speech restriction.
  • The court held the law is content‑based and therefore subject to strict scrutiny, rejected the State’s attempts to classify the speech as commercial/illegal/private, and found the statute not narrowly tailored nor the least restrictive means to combat age discrimination.
  • The Ninth Circuit affirmed summary judgment for IMDb and also upheld the district court’s denial of the State’s discovery requests.

Issues

Issue Plaintiff's Argument (IMDb) Defendant's Argument (State/SAG) Held
Whether AB 1687 is a content‑based restriction subject to strict scrutiny AB 1687 singles out “date of birth or age” content and a particular class of speakers (subscription employment providers), so it is content‑based The law merely enforces contractual obligations and regulates commercial relationships, not public speech Court: Law is content‑based (targets specific content and speakers) and is subject to strict scrutiny
Whether the restricted speech is entitled to reduced protection (commercial, facilitating illegal conduct, or purely private) Public IMDb profiles are encyclopedic, not commercial; information is lawfully obtained and public The restriction targets commercial employment service profiles and limits speech used to facilitate discrimination; thus reduced scrutiny applies Court: Speech is not commercial in the relevant sense, does not propose illegal transactions, and privacy concerns do not justify reduced scrutiny; strict scrutiny applies
Whether AB 1687 survives strict scrutiny (compelling interest; least restrictive/narrow tailoring) State has a compelling interest in reducing age discrimination, but the law must be narrowly tailored and least restrictive Statute advances compelling interest and is tailored by limiting protection to subscribers who request removal and their companion pages Court: Reducing age discrimination is compelling, but the statute is neither the least restrictive means nor narrowly tailored (underinclusive and appears targeted at IMDb) — fails strict scrutiny
Whether the district court abused its discretion in denying discovery Discovery was necessary to show prevalence of discrimination, IMDb’s role, and insufficiency of other remedies Discovery was unnecessary because statute is facially content‑based and discovery would not change strict scrutiny analysis Court: No abuse of discretion; proposed discovery would not have altered the dispositive constitutional conclusions

Key Cases Cited

  • Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based speech restrictions trigger strict scrutiny)
  • Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (law that imposes content‑ and speaker‑based burdens is presumptively invalid)
  • Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (commercial speech defined as proposing a commercial transaction)
  • Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (factors for identifying commercial speech)
  • Playboy Entm’t Grp., Inc. v. United States, 529 U.S. 803 (2000) (strict scrutiny for content‑based restrictions)
  • R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content‑based restrictions are presumptively invalid)
  • Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (enforcement of private bargains does not necessarily raise First Amendment issues)
  • Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) (regulation of speech that proposes illegal commercial conduct may be permissible)
  • Bartnicki v. Vopper, 532 U.S. 514 (2001) (lawful speech cannot be suppressed merely to deter third‑party wrongdoing)
  • The Florida Star v. B.J.F., 491 U.S. 524 (1989) (underinclusive disclosure restrictions raise constitutional doubts)
  • Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013) (availability of less‑speech‑restrictive alternatives undermines tailoring)
  • Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994) (distinguishing state‑created speech restrictions from private bargains)
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