Case 3:16-cv-06535-VC Document 79 Filed 08/24/17 Page 1 of 17

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XAVIER BECERRA
Attorney General of California
STEPAN A. HAYTAYAN
Supervising Deputy Attorney General
ANTHONY R. HAKL
Deputy Attorney General
State Bar No. 197335
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-6065
Fax: (916) 324-8835
E-mail: Anthony.Hakl@doj.ca.gov
Attorneys for Defendant
Attorney General Xavier Becerra

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IMDB.COM, INC., a Delaware corporation,

3:16-cv-06535

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v.

Plaintiff, DEFENDANT’S OPPOSITION/OPENING
BRIEF ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT

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XAVIER BECERRA, in his official capacity
as Attorney General of the State of
California,

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Defendant,

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Date:
Time:
Dept.:
Judge:
Action Filed:

October 26, 2017
10:00 a.m.
No. 4 – 17th Floor
Honorable Vince Chhabria
November 10, 2016

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SCREEN ACTOR’S GUILD-AMERICAN
FEDERATION OF TELEVISION AND
RADIO ARTISTS,

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Defendant-Intervenor.
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TABLE OF CONTENTS

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Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
I.
Section 1798.83.5 (AB 1687).................................................................................. 1
II.
The Parties ............................................................................................................... 2
III.
Plaintiff’s First Amendment Claim and Preliminary Injunction ............................. 3
Applicable Legal Standards ............................................................................................................ 3
Argument ........................................................................................................................................ 4
I.
Section 1798.83.5 Is a Valid Regulation of Voluntary Commercial
Contracts, and Any Incidental Effect on Speech Does Not Implicate the
First Amendment. .................................................................................................... 4
II.
Even If Section 1798.83.5 Concerns Speech, It Is a Permissible Regulation
of Commercial Speech. ........................................................................................... 8
Conclusion .................................................................................................................................... 11

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TABLE OF AUTHORITIES

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Page

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CASES

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Allied Structural Steel Co. v. Spannaus
438 U.S. 234 (1978) ....................................................................................................................7

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Anderson v. Holder
673 F.3d 1089 (9th Cir. 2012)...................................................................................................10
Anderson v. Liberty Lobby
477 U.S. 242 (1986) ....................................................................................................................3
Board of Trs. v. Fox
492 U.S. 469 (1989) ....................................................................................................................9
Celotex Corp. v. Catrett
477 U.S. 317 (1986) ....................................................................................................................3
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York
447 U.S. 557 (1980) ................................................................................................................8, 9
Cincinnati v. Discovery Network, Inc.
507 U.S. 410 (1993) ....................................................................................................................8
City of Richmond v. J.A. Croson Co.
488 U.S. 469 (1989) ....................................................................................................................9
Clark v. Cmty. for Creative Non–Violence
468 U.S. 288 (1984) ....................................................................................................................4
Cohen v. Cowles Media Co.
501 U.S. 663 (1991) ........................................................................................................4, 5, 6, 7

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Connecticut Bar Ass’n v. United States
620 F.3d 81 (2d Cir. 2010) ..........................................................................................................8
DVD Copy Control Ass’n, Inc. v. Bunner
31 Cal. 4th 864 (2003) ................................................................................................................7
E.E.O.C. v. Townley Eng’g & Mfg. Co.
859 F.2d 610 (9th Cir. 1988).......................................................................................................9

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Greater New Orleans Broad. Ass’n v. U.S.
527 U.S. 173 (1999) ....................................................................................................................9
Louie v. McCormick & Schmick Restaurant Corp.
460 F. Supp. 2d 1153 (C.D. Cal. 2006).....................................................................................10
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TABLE OF AUTHORITIES
(continued)

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Page
Miracle Auto Center v. Superior Court
68 Cal.App.4th 818 (1998)..........................................................................................................7
Mut. Life Ins. Co. of New York v. Phinney
178 U.S. 327 (1900) ....................................................................................................................7
Outdoor Sys. Inc. v. City of Mesa
997 F.2d 604 (9th Cir. 1993).......................................................................................................9
Reed v. Town of Gilbert, Ariz.
135 S. Ct. 2218 (2015) ................................................................................................................7
Robi v. Five Platters, Inc.
918 F.2d 1439 (9th Cir. 1990).....................................................................................................4
Snepp v. United States
444 U.S. 507 (1980) ...................................................................................................................6
Southern California Gas Co. v. Santa Ana
336 F.3d 885 (9th Cir. 2003)...................................................................................................3, 4

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Swenson v. File
3 Cal.3d 389 (1970) ....................................................................................................................7
True the Vote v. Hosemann
43 F. Supp. 3d 693 (S.D. Miss. 2014) .........................................................................................6
U.S. Trust Co. of N.Y. v. New Jersey
431 U.S. 1 (1977) ........................................................................................................................7

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Wang Laboratories, Inc. v. Mitsubishi Electronics, America, Inc.
860 F. Supp. 1448 (C.D. Cal. 1993) ...........................................................................................4

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STATUTES

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15 United States Code §§ 6501-6506................................................................................................6
18 United States Code § 2710 ...........................................................................................................6
20 United States Code 1232g ............................................................................................................6

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47 United States Code § 551 .............................................................................................................6
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TABLE OF AUTHORITIES
(continued)

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Page

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California Civil Code
§ 1798.83.5 ........................................................................................................................ passim
§ 1798.83.5(a) .............................................................................................................................2
§ 1798.83.5(b) .........................................................................................................................2, 7
§ 1798.83.5(d)(1) ........................................................................................................................1
§ 1798.83.5(d)(4) ....................................................................................................................1, 7

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Communications Decency Act § 230(c)(1).......................................................................................3

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COURT RULES

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Federal Rules of Civil Procedure
Rule 5.2(a)(2) .............................................................................................................................6
Rule 56(c) ...................................................................................................................................3

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Federal Rules of Evidence,
Rule 201 ....................................................................................................................................10

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OTHER AUTHORITIES

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Joel Kane, 27 No. 3 Cal. Emp. L. Letter 1 (Nov. 7, 2016) ...............................................................5

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Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling
Implications of A Right to Stop People from Speaking About You, 52 Stan. L.
Rev. 1049, 1057 (2000)...............................................................................................................6

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Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA
L. Rev. 1194-96 (2005) ...............................................................................................................6

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INTRODUCTION
Under section 1798.83.5 of the California Civil Code, 1 Plaintiff IMDb.com, Inc. (“IMDb”)

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is free to publish date of birth and age information as a general matter. The provision is only

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triggered if IMDb, as a commercial online entertainment employment service provider,

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voluntarily contracts with a paying subscriber for employment services and that subscriber

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requests that such information not be published. Applying only in these narrow circumstances,

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the provision is a contract-based nondisclosure rule and the Court should uphold it as valid

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regulation of voluntary commercial contracts. Any incidental effect on speech does not implicate

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a First Amendment right. If the First Amendment is implicated, section 1798.83.5 is a valid

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regulation of commercial speech. For these reasons, and as explained below, the Court should

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grant Defendant Attorney General Xavier Becerra’s motion for summary judgment and deny

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IMDb’s motion.

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BACKGROUND
I.

SECTION 1798.83.5 (AB 1687)
Effective January 1, 2017, AB 1687 added section 1798.83.5 to the California Civil Code.

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The provision governs “contractual agreements” between “commercial online entertainment

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employment service providers” and their paying subscribers. § 1798.83.5. As defined by the

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law, a “commercial online entertainment employment service provider” is “a person or business

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that owns, licenses, or otherwise possesses computerized information, including, but not limited

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to, age and date of birth information, about individuals employed in the entertainment industry,

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including television, films, and video games, and that makes the information available to the

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public or potential employers.” § 1798.83.5(d)(1). A “subscriber” is “a natural person who

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enters into a contractual agreement with a commercial online entertainment employment service

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provider to receive employment services in return for a subscription payment.”

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§ 1798.83.5(d)(4).

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All further statutory references are to the California Civil Code unless otherwise
indicated.
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The express purpose of the law is “to ensure that information obtained on an Internet Web

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site regarding an individual’s age will not be used in furtherance of employment or age

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discrimination.” § 1798.83.5(a). To that end, the statute, provides:

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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:

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(1) Publish or make public the subscriber’s date of birth or age information in an
online profile of the subscriber.

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(2) Share the subscriber’s date of birth or age information with any Internet Web
sites for the purpose of publication.

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§ 1798.83.5(b).
Under the statute, a commercial online entertainment employment service provider subject

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to the above requirement “shall, within five days, remove from public view in an online profile of

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the subscriber the subscriber’s date of birth and age information on any companion Internet Web

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sites under its control upon specific request by the subscriber naming the Internet Web sites.”

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§ 1798.83.5(b). Any such service provider “that permits members of the public to upload or

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modify Internet content on its own Internet Web site or any Internet Web site under its control

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without prior review by that provider shall not be deemed in violation of this section unless first

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requested by the subscriber to remove age information.” Id.

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II.

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THE PARTIES
Plaintiff IMDb operates http://www.imdb.com/ (“IMDb.com”), a publically-accessible

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online information database regarding films, television shows, and professionals in the

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entertainment industry. Compl. at 2. The information available on IMDb.com is provided by

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IMDb itself along with users of the site, although IMDb routinely updates and verifies

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information provided by users. Id.

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IMDb also operates IMDbPro, a paid subscription service that allows industry professionals

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to create their own profile pages, including a résumé, for example, and to access job listings,

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company information, and information regarding other industry professionals. Compl. at 2-3.
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Defendant Attorney General Xavier Becerra is sued in his official capacity as Attorney

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General of the State of California. See Compl. at 5 & n.1, supra. As the chief law officer for

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California, he is authorized to enforce state law, including section 1798.83.5.

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Defendant-Intervenor Screen Actor’s Guild-American Federation of Television and Radio

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Artists (“SAG-AFTRA”) is a large entertainment industry union, representing over 160,000

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media professionals. See Doc. No. 9 at 3 (SAG-AFTRA’s motion to intervene). The Court

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granted SAG-AFTRA’s unopposed motion to intervene to defend the constitutionality of

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section 1798.83.5 based on the organization’s involvement in the entertainment industry and its

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role as the sponsor of AB 1687. See id. & Doc. no. 38 (Order Granting Mot. to Intervene).

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III. PLAINTIFF’S FIRST AMENDMENT CLAIM AND PRELIMINARY INJUNCTION
IMDb’s motion for summary judgment is limited to its claim that section 1798.83.5 is a

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content-based regulation of speech that violates the First Amendment because it is not narrowly

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drawn to serve a compelling state interest. See Compl. at 10-11. This is the claim upon which

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the Court preliminarily enjoined the operation of the statute. 2 See Doc. No. 54 (Order Granting

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Mot. for Prelim. Inj.).

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APPLICABLE LEGAL STANDARDS
Summary judgment is appropriate if the record demonstrates no genuine issue of material

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fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,

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477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). Material facts are those necessary to the

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proof or defense of a claim, and are determined by reference to the substantive law. See

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Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The party with the burden of persuasion at

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trial “must establish ‘beyond controversy every essential element of its . . . claim.” Southern

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California Gas Co. v. Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003).

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The second claim alleged in the complaint, but currently not at issue, is that the law
violates the Commerce Clause because it is not limited “to conduct in and related to California.”
Compl. at 13. The third claim is that section 230(c)(1) of the Communications Decency Act
preempts section 1798.83.5, which IMDb argues impermissibly imposes liability on it for content
created by a third party.
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At the summary judgment stage the question before the court is whether there are genuine

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issues for trial, or whether the matter can be decided as a matter of law. Southern California Gas,

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336 F.3d at 887. Upon a showing that there is no genuine issue of material fact as to a particular

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claim, the court may grant summary judgment in the party’s favor, “upon all or any part thereof.”

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Wang Laboratories, Inc. v. Mitsubishi Electronics, America, Inc., 860 F. Supp. 1448, 1450

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(C.D. Cal. 1993); Robi v. Five Platters, Inc., 918 F.2d 1439, 1441 (9th Cir. 1990).

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ARGUMENT

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SECTION 1798.83.5 IS A VALID REGULATION OF VOLUNTARY COMMERCIAL
CONTRACTS, AND ANY INCIDENTAL EFFECT ON SPEECH DOES NOT IMPLICATE THE
FIRST AMENDMENT.

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Because section 1798.83.5 regulates economic contractual relationships, not protected

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speech, IMDb cannot meet its burden to show that the First Amendment applies to the conduct at

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issue. See, e.g., Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293 n.5 (1984)

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(“Although it is common to place the burden upon the Government to justify impingements on

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First Amendment interests, it is the obligation of the person desiring to engage in assertedly

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expressive conduct to demonstrate that the First Amendment even applies.”).

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I.

The First Amendment is not a source of “limitless” protection, not even for the publication

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of truthful information acquired lawfully. 3 Cohen v. Cowles Media Co., 501 U.S. 663, 671

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(1991). In Cohen, the Supreme Court held that the First Amendment did not prohibit a plaintiff

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from recovering damages, under a state promissory estoppel law, for a newspaper’s breach of a

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promise of confidentiality given to the plaintiff in exchange for information. Id. at 665. The

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Court reasoned, in part, that the law was one of general applicability that had “incidental effects”

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on the newspaper’s ability to gather and report the news. Id. at 669. Moreover, the Court was

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persuaded by the fact that the agreement between the plaintiff and the newspaper was in the form

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of a contract. As the Court put it: “The parties themselves . . . determine the scope of their legal

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Defendant assumes for the purposes of this motion that the age and date of birth
information published by Plaintiff is “truthful,” although there is reason to believe that is not
always the case. Plaintiff admits that IMDb.com contains at least some inaccuracies. See Compl.
at 2 (“IMDb routinely and gladly updates information on IMDb.com in order to correct verified
inaccuracies.”).
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obligations, and any restrictions that may be placed on the publication of truthful information are

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self-imposed.” Id. at 671.

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While section 1798.83.5 may not be a generally applicable law, the key point is that it has

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only “incidental effects,” if any, on IMDb’s ability to publish factual information. Cohen,

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501 U.S. at 669. Section 1798.83.5 is hardly sweeping in its scope. On the contrary, it narrowly

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proscribes the disclosure of a discreet category of information in an online profile of the

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subscriber. See Joel Kane, 27 No. 3 Cal. Emp. L. Letter 1 (Nov. 7, 2016) (“This law has a fairly

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narrow scope, and it won't directly apply to the majority of employers. However, it emphasizes

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the importance that California places on protecting against age discrimination, including by the

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entertainment industry and providers of Internet services.”). And the only reason the proscription

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extends to the publicly-accessible IMDb.com (as opposed to only IMDbPro), is a result of the

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decision by IMDb to effectively join its free Web publication to a fee-for-service product. Such

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an arrangement cannot be used to insulate IMDb from a legitimate business regulation. After all,

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a subscriber pays a fee to IMDbPro, effectively “hiring” the service to host his or her online

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profile, assist with business connections, access and facilitate employment opportunities, and so

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on. It is undisputed that IMDbPro allows a paying subscriber to omit any mention of date of birth

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or age information from his or her profile. Thus, there is a basic unfairness to allowing IMDb to

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turn around and publish that same information on another site it owns and controls, not to

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mention makes freely available, just because it happens to be outside the subscription. Section

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1798.83.5 guards against that unfairness by requiring IMDb – the company that entered into a

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voluntary contract with a paying subscriber to provide employment services – to remove date of

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birth or age information across all of the sites it controls, if that is what a paying subscriber

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chooses to do.

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In addition to narrowly proscribing a discreet category of information, section 1798.83.5
regulates the disclosure of private, sensitive information, i.e., age and birth date. 4 In a variety of
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Plaintiff tacitly concede the private nature of the information at stake. In its complaint,
Plaintiff characterized date of birth or age information as “public information.” Compl. ¶8.
Plaintiff used the same phrase at the preliminary injunction stage. See Pl.’s Mot. for Prelim Inj. at
2 & 10. But Plaintiff’s motion for summary judgment is conspicuously devoid of the phrase.
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contexts, the law deems such information as private and not subject to disclosure. See, e.g., True

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the Vote v. Hosemann, 43 F. Supp. 3d 693, 736–37 (S.D. Miss. 2014) (“various courts have

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recognized in the context of FOIA litigation that birthdates are sensitive information and have

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construed FOIA’s “Exemption 6” to protect the disclosure of birthdates”); Fed. R. Civ. P.

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5.2(a)(2) (requiring certain age information be redacted from court filings for privacy reasons).

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Indeed, acceptance of IMDb’s First Amendment theory here would imperil a host of similar

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nondisclosure laws that apply in the context of voluntary consumer transactions. See, e.g.,

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18 U.S.C. § 2710 (limiting disclosure of personal information in video tape rental or sale

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records); 47 U.S.C. § 551 (regulating collection, use, and disclosure by cable operators of

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“personally identifiable” information regarding cable subscribers); 20 U.S.C. 1232g (concerning

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“release of education records (or personally identifiable information therein . . . .”); 15 U.S.C.

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§§ 6501-6506 (Children’s Online Privacy Protection Act requirements governing disclosure of

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personal information). See also Neil M. Richards, Reconciling Data Privacy and the First

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Amendment, 52 UCLA L. Rev. 1194-96 (2005) (commercial nondisclosure or confidentiality

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rules generally have never been thought to fall within the scope of the First Amendment’s

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protection). Under IMDb’s theory, any company could circumvent nondisclosure laws like these

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if it happens to have, or starts, a separate media product line.

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Next, while section 1798.83.5 subjects contracts between IMDb and its paying subscribers

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to a particular kind of regulation, it cannot reasonably be questioned that those contracts are

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voluntary. IMDb and its paying subscribers mutually agree to enter into contracts for

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employment services, with each side remaining free not to enter into any contract in the first

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place. Thus, the decision to contract is “self-imposed.” Cohen, 501 U.S. at 671; see Eugene

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Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of A Right to

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Stop People from Speaking About You, 52 Stan. L. Rev. 1049, 1057 (2000) (“[O]ne sort of limited

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information privacy law – contract law applied to promises not to reveal information – is

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eminently defensible under existing free speech doctrine. The Supreme Court explicitly held in

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Cohen v. Cowles Media that contracts not to speak are enforceable with no First Amendment

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problems.”); see also Snepp v. United States, 444 U.S. 507, 510 n.1 (1980) (holding that
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agreement by former government employee not to publish information about agency was

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enforceable because employee accepted employment and voluntarily signed agreement). 5

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To be sure, the plain language of section 1798.83.5 places it in the category of a regulation

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of economic contracts between private parties. In relevant part, the law applies to any

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commercial online entertainment service provider “that enters into a contractual agreement to

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provide employment services.” §1798.83.5(b) (italics added). Similarly, it applies to any

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“subscriber” to those services, who the law defines as “a natural person who enters into a

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contractual agreement with a commercial online entertainment employment service provider to

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receive employment services in return for a subscription payment.” § 1798.83.5(d)(4) (italics

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added). For this reason as well, IMDb has no basis upon which to complain of a First

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Amendment violation. See Cohen; 501 U.S. at 670-71; see also DVD Copy Control Ass’n, Inc. v.

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Bunner, 31 Cal. 4th 864, 895 (2003) (“Both the United States Supreme Court and this court have

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recognized that the First Amendment right to free expression may be legitimately circumscribed

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by state law intellectual property rights.”). Certainly, as a general matter, states have

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considerable leeway in regulating contracts between private parties. See, generally, Allied

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Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978) (“It is the settled law of this court that

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the interdiction of statutes impairing the obligation of contracts does not prevent the State from

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exercising such powers as are vested in it for the promotion of the common weal, or are necessary

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for the general good of the public[.]”); U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 22

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(1977) (states have “broad power to adopt general regulatory measures without being concerned

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that private contracts will be impaired, or even destroyed, as a result”). 6

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Related to this point, the general rule is that when parties enter into contracts, they are
presumed to know and understand the applicable law, and to have drafted the provisions
accordingly. See Mut. Life Ins. Co. of New York v. Phinney, 178 U.S. 327, 341–42 (1900);
Swenson v. File, 3 Cal.3d 389, 393 (1970); Miracle Auto Center v. Superior Court, 68
Cal.App.4th 818, 821 (1998).
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Plaintiff’s reliance on Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) is
misplaced. Reed concerned restrictions on signs and billboards aimed at the general public.
The case casts no doubt on Cohen, or these other commercial contract precedents.

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II.

EVEN IF SECTION 1798.83.5 CONCERNS SPEECH, IT IS A PERMISSIBLE REGULATION
OF COMMERCIAL SPEECH.

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In the event the Court concludes that this is a First Amendment case, section 1798.83.5

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concerns commercial speech. Commercial speech is an “expression related solely to the

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economic interests of the speaker and its audience,” or, alternatively, speech “proposing a

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commercial transaction.” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New

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York, 447 U.S. 557, 560 (1980). The Supreme Court has recognized that this definition is hardly

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precise and it is often difficult to distinguish between commercial and noncommercial speech.

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See Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993) (recognizing difficulty of

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“drawing bright lines that will clearly cabin commercial speech in a distinct category”).
IMDb has argued that this case concerns speech unconnected to a business transaction. On

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the contrary, by its terms the statute regulates speech only in the context of contractual

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agreements between entities like IMDb and its paying subscribers. Additionally, because such

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contracts concern the provision of employment services by businesses like IMDb, and the receipt

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of such services by paying subscribers, any speech in connection with those contracts concerns

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the economic interests of the parties to those transactions. Thus, if section 1798.83.5 regulates

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speech at all, it regulates commercial speech. See, generally, Connecticut Bar Ass’n v. United

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States, 620 F.3d 81, 94 (2d Cir. 2010) (concluding that “the contract requirements of [a federal

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statute] qualify as commercial speech”).

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Accordingly, the strict scrutiny urged by IMDb does not apply. Rather, the less-than-strict

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review under Central Hudson applies. In Central Hudson Gas & Elec. Corp. v. Public Service

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Commission of New York, 447 U.S. 557, 566 (1980), the Supreme Court set out the four-part First

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Amendment test applicable to a statute regulating commercial speech. As the Court explained:

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At the outset, we must determine [1] whether the expression is protected by the
First Amendment. For commercial speech to come within that provision, it at least
must concern lawful activity and not be misleading. Next, we ask [2] whether the
asserted governmental interest is substantial. If both inquiries yield positive
answers, we must determine [3] whether the regulation directly advances the
governmental interest asserted, and [4] whether it is not more extensive than is
necessary to serve that interest.

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Central Hudson, 447 U.S. at 566.
Here, the first and second parts of the Central Hudson test are not at issue. Based on the

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current record, it does not appear that the relevant date of birth or age information is either

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misleading or related to unlawful activity as a general matter. Nor is there any dispute that

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combatting age discrimination in employment is a substantial and compelling state interest.

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See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 536 (1989) (remedying past

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discrimination is compelling interest); E.E.O.C. v. Townley Eng’g & Mfg. Co., 859 F.2d 610,

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620-621 (9th Cir. 1988) (same). Thus, any Central Hudson analysis turns on the third and fourth

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parts of the applicable test.

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With regard to the third part, that the regulation directly advances the government’s

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interests, California is required to point to something more than “mere speculation or conjecture”

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to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them

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to a material degree.” Greater New Orleans Broad. Ass’n v. U.S., 527 U.S. 173, 188 (1999)

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(citation omitted). Related, the fourth part of the test asks whether the speech restriction is more

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extensive than necessary to serve the interests that support it. Id. This element does not require

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that California adopt the least restrictive means for achieving its objectives. Board of Trs. v. Fox,

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492 U.S. 469, 480, (1989); Outdoor Sys. Inc. v. City of Mesa, 997 F.2d 604, 610 (9th Cir. 1993).

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Rather, there need only be a “reasonable fit” between the government’s ends and the means

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chosen to accomplish those ends. Fox, 492 U.S. at 480; see Greater New Orleans Broad. Ass’n,

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527 U.S. at 188 (requiring “a fit that is not necessarily perfect, but reasonable”).

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The Legislature passed AB 1687 to address age discrimination in the entertainment

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industry, which “remains a problem” despite the state’s civil rights laws. Sen. Rules Com.,

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Analysis of Assem. Bill No. 1687 (2015-2016 Reg. Sess.) Aug. 3, 2016, at 3; see Sen. Com. on

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Judiciary, Analysis of Assem. Bill No. 1687 (2015-2016 Reg. Sess.) June 14, 2016, at 1 (despite

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laws like Fair Employment and Housing Act and Unruh Civil Rights “age discrimination remains

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a problem in the entertainment industry”); Assem. Com. on Privacy & Consumer Protection,

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Analysis of Assem. Bill No. 1687 (2015-2016 Reg. Sess.) May 3, 2016, at 2 (“age discrimination

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continues to exist and is facilitated through public distribution of potential job applicant’s birth

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and age information via commercial online employment service providers”). 7

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Thus, IMDb’s argument that the State simply needs to enforce its current age discrimination

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laws falls short. The Legislature determined that, in this particular industry, those laws have

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proven insufficient to eliminate discrimination. As a further remedial measure, AB 1687 was

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designed to limit the availability of age information of entertainment industry professionals. As

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the author of the bill observed, “[i]n particular, actors are often cast in roles in which they portray

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characters who are younger or older than their real biological age. . . . As actors age, they are very

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concerned that they will be shut out from parts based on unlawful age bias.” Sen. Rules Com.,

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Analysis of Assem. Bill No. 1687 (2015-2016 Reg. Sess.) Aug. 3, 2016, at 4.
The restriction also is no more extensive than necessary. It only applies to commercial

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online entertainment employment service providers and subscribers who enter into contractual

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agreements for employment services. Thus, if the law regulates speech, at most it comes into

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play in the context where the remedy is needed, paid employment services specific to the

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entertainment industry. Third parties to the contractual agreements (i.e., those outside of the

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voluntary, mutually beneficial agreements like those between IMDb and its paying subscribers)

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are not covered by the law. The provisions also limit access to age information only, a limited

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category of information.

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The text of section 1798.83.5 and its legislative history show that the Legislature

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understood the problem of age discrimination in the entertainment industry to be real, adopted the

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provision to aid in solving that problem, and matched the restriction to the problem to be

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addressed. Thus, if section 1798.83.5 is to be considered a speech regulation, it is a valid

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commercial speech regulation.

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This legislative history is attached to the declaration of the undersigned filed in support
of this brief. Under Rule 201 of the Federal Rules of Evidence, the Court may take judicial notice
of the legislative history of state statutes. Anderson v. Holder, 673 F.3d 1089, 1094, n.1 (9th Cir.
2012); Louie v. McCormick & Schmick Restaurant Corp., 460 F. Supp. 2d 1153, 1155, n.4
(C.D. Cal. 2006). Defendant respectfully requests that this Court take judicial notice of the
relevant legislative history here.

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CONCLUSION
For the reasons set forth above, the Court should grant the Attorney General’s motion for

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summary judgment and deny IMDb’s motion.

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Dated: August 24, 2017

Respectfully Submitted,

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XAVIER BECERRA
Attorney General of California
STEPAN A. HAYTAYAN
Supervising Deputy Attorney General

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/s/ Anthony R. Hakl
ANTHONY R. HAKL
Deputy Attorney General
Attorneys for Defendant

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SA2016104639
12793704.doc

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CERTIFICATE OF SERVICE
Case Name:

IMDb.com, Inc. v. Xavier
Becerra

No.

3:16-cv-06535

I hereby certify that on August 24, 2017, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
DEFENDANT’S OPPOSITION/OPENING BRIEF ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on August 24, 2017, at Sacramento,
California.

Tracie L. Campbell
Declarant
SA2016104639
12795364.doc

/s/ Tracie Campbell
Signature