Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 1 of 15 1 2 3 4 5 DOUGLAS E. MIRELL (Bar No. 94169) dmirell@hmafirm.com DILAN A. ESPER (Bar No. 178293) desper@hmafirm.com HARDER MIRELL & ABRAMS LLP 132 S. Rodeo Dr., Fourth Floor Beverly Hills, CA 90212 Tel. (424) 203-1600 Fax (424) 203-1601 Attorneys for Defendant/Intervenor Screen Actors Guild-American Federation 7 of Television and Radio Artists 6 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 No. 3:16-cv-06535-VC IMDB.COM, INC., Plaintiff, v. XAVIER BECERRA, et al. Defendants. 14 15 16 17 SCREEN ACTORS GUILD AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant/Intervenor. 18 19 20 21 22 23 24 25 26 27 28 {00083702;8} OPPOSITION OF DEFENDANT/INTERVENOR SAGAFTRA TO MOTION FOR SUMMARY JUDGMENT Judge: Date: Time: Place: Hon. Vince Chhabria October 26, 2017 10:00 A.M. Courtroom 4, 17th Floor 450 Golden Gate Ave. San Francisco, CA 94102 Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 2 of 15 TABLE OF CONTENTS 1 2 I. INTRODUCTION ........................................................................................... 1 3 II. FACTUAL BACKGROUND ......................................................................... 2 4 III. AB 1687 RESTRICTS EXPRESSION THAT FACILITATES 5 ILLEGAL AGE DISCRIMINATION, AND IS 6 CONSTITUTIONAL. ..................................................................................... 2 7 IV. SUMMARY JUDGMENT IS INAPPROPRIATE BECAUSE 8 DEFENDANTS HAVE BEEN DENIED NECESSARY 9 DISCOVERY. ................................................................................................. 8 10 V. CONCLUSION .............................................................................................11 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 3 of 15 1 TABLE OF AUTHORITIES 2 Cases 3 Airbnb Inc. v. City and County of San Francisco, 217 F.Supp.3d 1066 4 (N.D. Cal. 2016) .............................................................................................. 5 5 Bamboo Bros. v. Carpenter, 133 Cal.App.3d 116 (1982) ......................................... 7 6 Barrick Realty, Inc. v. City of Gary, 491 F.2d 161 (7th Cir. 1974)....................... 4, 8 7 Bartnicki v. Vopper, 532 U.S. 514 (2001) ............................................................. 7, 8 8 Brandenburg v. Ohio, 395 U.S. 444 (1969) .............................................................. 7 9 Broadrick v. Oklahoma, 413 U.S. 601(1973) .......................................................... 10 10 Fenwick-Schafer v. Sterling Homes Corp., 774 F.Supp. 361 (D.Md. 11 1991) ................................................................................................................ 5 12 Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 13 1213 (11th Cir. 1982) ...................................................................................... 6 14 Goldin v. Public Utilities Commission, 23 Cal.3d 638 (1979) .................................. 6 15 Guider v. Bauer, 865 F. Supp. 492 (N.D. Ill. 1994) .................................................. 5 16 Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006 (Utah 2016) ............................ 8 17 Murphy v. Matheson, 742 F.2d 564 (10th Cir. 1984) ................................................ 6 18 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 19 413 U.S. 376 (1973) ............................................................................... passim 20 Ragin v. New York Times Co., 923 F.2d 995 (2d Cir.) .......................................... 5, 8 21 Shulman v. Group W. Productions, Inc., 18 Cal.4th 200 P.2d 469(1998) ............... 8 22 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ....................................................... 7 23 Town Tobacconist v. Kimmelman, 453 A.2d 209,(N.J. Super. 1982) ....................... 7 24 Valle del Sol, Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013) ..................................... 7 25 Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) ........................... 6, 7, 8 26 Statutes 27 AB 1687 ............................................................................................................ passim 28 Other Authorities - ii {00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 4 of 15 1 California Practice Guide: Federal Civil Procedure Before Trial § 2 14:114 (The Rutter Group 2017) ..................................................................... 9 3 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=36 4 59&meta_id=131725 ; ..................................................................................... 3 5 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=38 6 62&meta_id=150591 ....................................................................................... 3 7 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=39 8 40&meta_id=162498 ....................................................................................... 3 9 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=39 10 58&meta_id=169805 ....................................................................................... 3 11 http://deadline.com/2010/01/huge-70m-settlement-in-tv-writers-age12 discrimination-lawsuit-23180/....................................................................... 10 13 Rules 14 Fed R. Civ. Proc. 56(d) .............................................................................................. 9 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iii {00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 5 of 15 1 I. 2 INTRODUCTION Plaintiff’s motion for summary judgment incorrectly asserts that there are no 3 factual issues here – that it does not matter how prevalent age discrimination is in the 4 entertainment industry; that it does not matter how much the dissemination of the 5 ages of entertainment industry workers on Plaintiff’s website facilitates age 6 discrimination; and that it does not even matter if this commercial speech regulation 7 would substantially reduce such age discrimination. Plaintiff contends it has an 8 absolute First Amendment right to disseminate the ages of everyone in Hollywood, 9 consequences be damned, and no matter how much or little value such expression 10 has in the marketplace of ideas. 11 Defendant-Intervenor Screen Actors Guild-American Federation of Television 12 and Radio Artists (“SAG-AFTRA”) continues to contend that this is not the law. 13 First, it matters that AB 1687 directly addresses an issue – age discrimination – that 14 even Plaintiff concedes is of compelling importance.1 Second, it matters that AB 15 1687 targets the entertainment industry’s go-to website for investigating the 16 backgrounds of those seeking employment, IMDb.com. Third, it matters that AB 17 1687, if enforced, will make it more difficult for entertainment industry employers to 18 quickly factor age into account when making their hiring decisions. Fourth, it 19 matters that the expression at issue, if protected at all, is personal information that 20 receives limited First Amendment protection – the birthdate of a private citizen is not 21 political expression, art, or news. 22 While Plaintiff argues that the statute at issue infringes upon a core 23 constitutional right to comment on the entertainment industry and report news about 24 celebrities, it is in fact nothing of the sort. For one thing, many of the people who are 25 protected by the statute are either minor celebrities or have little or no fame 26 whatsoever. Moreover, nothing in the statute prevents anyone from debating the 27 28 See Dkt. 78 at 2 (“IMDb does not dispute that age discrimination should be rooted out in the entertainment industry and beyond”). 1 -1{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 6 of 15 1 issue of age discrimination, discussing the lives of celebrities, or engaging in similar 2 expression. Plaintiff’s website publishes everyone’s age regardless of whether it is 3 relevant to any public issue at all, and does so without any comment or context. This 4 is not an invitation to public debate. Rather, it is an open invitation for casting 5 directors to engage in illegally discriminatory conduct, as set forth in the Declaration 6 of Marilyn Szatmary, an experienced talent agent who describes precisely the effect 7 of IMDb.com on the entertainment industry. The effect of AB 1687 on 8 constitutionally protected speech regarding famous people is incidental and can be 9 addressed, if necessary, in an as-applied challenge. 10 11 II. FACTUAL BACKGROUND 12 13 Plaintiff successfully opposed all proposed discovery in this case. Without 14 such discovery, SAG-AFTRA was unable to develop the necessary factual record in 15 this case. However, SAG-AFTRA believes that discovery would show the 16 following: (1) that age discrimination is rampant within the entertainment industry; 17 (2) that Plaintiff’s website IMDb.com is the “go-to” website for casting information 18 in the industry; (3) that removal of age information from IMDb.com would make age 19 discrimination more difficult by removing the most ready and reliable source of such 20 information; and (4) many of the persons whose age information is posted on 21 IMDb.com are not famous or the subject of public discussion. These facts are also 22 set forth in the Declaration of Marilyn Szatmary, who worked for decades as a talent 23 agent as well as having experience as a casting director, and which is filed 24 concurrently herewith. 25 26 27 28 III. AB 1687 RESTRICTS EXPRESSION THAT FACILITATES ILLEGAL AGE DISCRIMINATION, AND IS CONSTITUTIONAL. AB 1687 is the latest in a long line of anti-discrimination laws which -2{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 7 of 15 1 recognize that barring discriminatory conduct is insufficient by itself to prevent 2 discrimination.2 It is often necessary to regulate solicitations that facilitate 3 discriminatory conduct in order to effectively combat discrimination. Such laws are 4 fully constitutional under the longstanding principle that speech which directly 5 facilitates illegal transactions or conduct is unprotected by the First Amendment. 6 The leading case is Pittsburgh Press Co. v. Pittsburgh Commission on Human 7 Relations, 413 U.S. 376 (1973). In Pittsburgh Press, the city’s Human Relations 8 Commission barred the newspaper from publishing separate male and female want 9 ads. The U.S. Supreme Court upheld the Commission’s order. “Discrimination in 10 employment is not only commercial activity, it is illegal commercial activity under 11 the Ordinance.” Id. at 388. The Commission and the courts below concluded that the practice of placing want ads for nonexempt employment in sex-designated columns did indeed “aid” employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity. Id. at 389. 12 13 14 15 16 17 18 19 20 21 22 Thus, Pittsburgh Press stands for the proposition that not only may a government bar discriminatory conduct, but may also prohibit certain expression in order to make the anti-discrimination law effective – specifically, solicitations that 23 24 2 AB 1687 received committee hearings in both the State Assembly and State Senate, as well as floor debate in both chambers, during which the need to importance of combatting age 25 discrimination in the entertainment industry was discussed and acknowledged. See http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=3659&meta_id=131725 ; 26 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=3862&meta_id=150591 ; 27 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=3940&meta_id=162498 ; and 28 http://calchannel.granicus.com/MediaPlayer.php?view_id=&clip_id=3958&meta_id=169805 . There is no doubt that this was the intention of the statute. -3{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 8 of 15 1 facilitate discriminatory conduct. 2 Importantly, Pittsburgh Press is not limited to explicit acts of 3 discrimination, as Plaintiff has argued throughout this case. Rather, the principle 4 underlying Pittsburgh Press applies to restrictions on categories of expression that 5 are not themselves facially discriminatory, but which can foreseeably be used to 6 facilitate such discrimination. Barrick Realty, Inc. v. City of Gary, 491 F.2d 161 (7th 7 Cir. 1974), demonstrates this. In Barrick Realty, the city enacted an ordinance 8 barring all “For Sale” signs on residential property in an attempt to prevent panic 9 selling that could lead to resegregation. Despite the fact that the ordinance barred 10 clearly truthful speech (after all, such homes were indeed for sale) and despite the 11 fact that the speech was not explicitly discriminatory (unlike the segregated want ads 12 in Pittsburgh Press), the ordinance was upheld because it was directed toward 13 expression that facilitated discrimination: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The history of the ordinance banning “For Sale” signs shows that it was aimed at panic selling and that its purpose was to halt resegregation. It was passed in response to the presence of numerous “For Sale” signs in some white neighborhoods, which caused whites to move en masse and blacks to replace them. There is evidence in the record that some real estate brokers who placed these signs (not including any plaintiffs) actively encouraged resegregation by unlawfully urging whites to sell quickly before they had black neighbors and lower property values. Id. at 163-64. Thus, Plaintiff’s assertions that AB 1687 regulates truthful communications and that some disclosures of particular persons’ ages will not result in discrimination miss the mark. The “for sale” signs in Barrick Realty were truthful, and it is entirely possible that some of the home sales at issue were non-discriminatory and would not have changed the racial makeup of the neighborhood. Nonetheless, the statute barring all “for sale” signs was upheld. So long as the communication of the age of persons in the entertainment industry writ large facilitates illegal age discrimination – a factual issue that can only be resolved by the kind of discovery that this Court has wholly precluded – such expression may be regulated consistent with the First -4{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 9 of 15 1 Amendment even though specific communications might not be discriminatory. 2 In Ragin v. New York Times Co., 923 F.2d 995 (2d Cir.), cert denied, 502 U.S. 3 821 (1991), the Court held that the First Amendment permitted the federal 4 government, through the Fair Housing Act, to bar housing advertisements featuring 5 white models for homes in segregated white neighborhoods and black models for 6 homes in black neighborhoods. “The complaint alleges that the ads in question 7 discourage black people from pursuing housing opportunities by conveying a racial 8 message in much the same way that the sex-designated columns in Pittsburgh Press 9 furthered illegal employment discrimination. The Times’s publication of real estate 10 advertisements that indicate a racial preference is, therefore, not protected 11 commercial speech.” Id. at 1003. 12 Once again, the expression in Ragin was not in any way untruthful or 13 misleading. Nor would all the home sales resulting from the advertisements in Ragin 14 necessarily be discriminatory. Nothing in the advertisements prevented a home 15 modeled by a black model to be sold to a white family or vice-versa. The regulation 16 prohibited what would in another context be protected artistic expression – an 17 advertiser’s choice of which models would be most effective to sell a house. 18 Nonetheless, the fact that the advertisements would facilitate acts of discrimination 19 was sufficient to permit the government to ban it. Accord Fenwick-Schafer v. 20 Sterling Homes Corp., 774 F.Supp. 361, 364 (D.Md. 1991) (following Ragin); 21 Guider v. Bauer, 865 F. Supp. 492, 497 (N.D. Ill. 1994) (federal government may 22 constitutionally bar advertisement that housing unit was “perfect for single or 23 couple” even if the statement is truthful). 24 More recently, the Pittsburgh Press rule has been applied to the online bed and 25 breakfast service Airbnb.com. In Airbnb Inc. v. City and County of San Francisco, 26 217 F.Supp.3d 1066 (N.D. Cal. 2016), the Court held that the City could 27 constitutionally ban Airbnb from accepting any fee from an advertiser of an 28 unregistered rental property, because such advertisements facilitate illegal rentals. -5{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 10 of 15 1 Id. at 1078-79. In doing so, the Court specifically rejected Airbnb’s argument that 2 Pittsburgh Press only applied if the advertisement on its face was unlawful. Id. 3 Pittsburgh Press has been applied in a wide array of factual circumstances. 4 For instance, in Goldin v. Public Utilities Commission, 23 Cal.3d 638 (1979) the 5 California Supreme Court upheld a rule requiring that telephone utilities deny service 6 to persons who utilize the telephone for illegal purposes. Goldin involved an illegal 7 escort service that utilized numerous telephone numbers to facilitate the business and 8 to provide prostitutes for its clients. The Court recognized that “when such 9 communication proposes, discusses, or is intended to encourage or facilitate a 10 commercial transaction which is itself illegal, the principle established in the 11 Pittsburgh Press case is applicable.” Id. at 657 (emphasis in original). 12 A line of cases involving head shops, which sell drug paraphernalia (such as 13 bong pipes), also confirms the applicability of the Pittsburgh Press principle. In 14 Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) the U.S. Supreme Court 15 upheld the constitutionality of a statute that prohibited the sale of certain drug 16 paraphernalia with or within close proximity to literature encouraging the use of 17 illegal drugs. The Court accepted that the statute prohibited the communication of 18 information promoting or encouraging drug use, but stated “[i]f that activity is 19 deemed ‘speech,’ then it is speech proposing an illegal transaction, which a 20 government may regulate or ban entirely” under Pittsburgh Press. Id. at 496. 21 Pursuant to Pittsburgh Press and Hoffman Estates, a number of head shop 22 laws that restrict various forms of expression have been upheld on the grounds that 23 such expression facilitates illegal conduct. Murphy v. Matheson, 742 F.2d 564(10th 24 Cir. 1984) (advertisements of head shop “are not constitutionally protected in this 25 instance because the statute is directed at commercial activity promoting or 26 encouraging illegal drug use”); Florida Businessmen for Free Enterprise v. City of 27 Hollywood, 673 F.2d 1213,(11th Cir. 1982) (“[T]he government may regulate or ban 28 entirely commercial speech related to illegal activity”); Town Tobacconist v. -6{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 11 of 15 1 Kimmelman, 453 A.2d 209 (N.J. Super. 1982) (“The statute is thus directed only to 2 advertisements which are known to have the purpose of aiding and promoting 3 violations of the Controlled Dangerous Substances Act”); Bamboo Bros. v. 4 Carpenter, 133 Cal.App.3d 116,(1982) (“If the advertisement, as in the instant case, 5 is encouraging an illegal activity, the principle established by Pittsburgh Press is 6 applicable”). 7 AB 1687 does nothing more than what numerous other statutes have done in 8 the past – i.e., restrict communication that facilitates discrimination. Moreover, it 9 does so in the context of an industry that has engaged in extensive age discrimination 10 which has persisted despite enforcement efforts – another fact that would have been 11 established by the discovery that this Court entirely precluded. Thus, AB 1687 is 12 consistent with the First Amendment. 13 Plaintiff cites Valle del Sol, Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013), for 14 the proposition that Pittsburgh Press applies solely to advertisements that are 15 themselves illegal. However, Whiting’s dictum – that speech may not be regulated 16 because it is “related” to an illegal transaction – cannot be given a broad reading; 17 doing so would be inconsistent with the U.S. Supreme Court’s holding in Hoffman 18 Estates, which permitted exactly that in upholding a ban on advocacy of narcotics 19 use (ordinarily protected by the First Amendment, at least where it did not meet the 20 strict scrutiny given to incitement laws under Brandenburg v. Ohio, 395 U.S. 444 21 (1969)) where the speech occurred in close proximity to the sale of drug 22 paraphernalia, because this related the speech to illegal conduct. Plaintiff’s citation 23 of unrelated cases from different contexts where the Supreme Court declined to 24 permit speech regulations is not relevant; nothing in any of those cases remotely 25 suggests that either Pittsburgh Press or Hoffman Estates are no longer good law. See 26 Bartnicki v. Vopper, 532 U.S. 514,(2001) (plurality opinion); Sorrell v. IMS Health 27 Inc., 564 U.S. 552 (2011). 28 As set forth in the Declaration of Marilyn Szatmary filed concurrently -7{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 12 of 15 1 herewith, there is massive age discrimination in the entertainment industry and 2 IMDb.com facilitates that discrimination as the go-to website for casting decisions. 3 Further, AB 1687 clearly can constitutionally be applied to the many people in the 4 industry who are not famous and whose birthdates are not a matter of public 5 discussion or concern, and who are threatened with age discrimination as a result of 6 Plaintiff’s activities. There are clearly genuine issues of material fact, which must be 7 resolved at trial. 8 9 IV. 10 SUMMARY JUDGMENT IS INAPPROPRIATE BECAUSE DEFENDANTS HAVE BEEN DENIED NECESSARY DISCOVERY. 11 Under governing case law in this constitutional arena, it is clear that facts 12 matter. The Pittsburgh Press line of cases uphold restrictions on expression that, 13 under different facts, could be struck down as unconstitutional. The ban on “for 14 sale” signs in Barrick Realty, the restrictions on the artistic choices of advertising 15 agencies in Ragin and the restrictions on the advocacy of narcotics use in Hoffman 16 Estates are all regulations that could be struck down if the factual predicate of a 17 relationship between the expression and the discriminatory or illegal conduct it 18 facilitated were not established. 19 SAG-AFTRA attempted to establish that factual predicate in this action 20 through discovery that sought to establish: (1) the severity and pervasiveness of age 21 discrimination in the entertainment industry; (2) the role of IMDb.com in facilitating 22 such discrimination and its role in casting decisions; and (3) the extent to which the 23 persons protected by AB 1687 are famous people whose birthdates might be the 24 subject of legitimate public discussion.3 The first two categories concern 25 3 Plaintiff’s arguments are premised on the notion that birthdates are protected expression. The test 26 for whether states may extend privacy protection to the disclosure of private facts is whether the facts are a “matter of legitimate public concern”. See, e.g., Shulman v. Group W. Productions, Inc., 27 18 Cal.4th 200, 955 P.2d 469(1998); Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006, (Utah 2016); see Bartnicki v. Vopper, 532 U.S. 514, 525 (2001) (plurality) (limiting First Amendment 28 protection of publicly disclosed private facts to information that is a matter of public concern; the concurring and dissenting opinions sought an even narrower First Amendment test). As amicus -8{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 13 of 15 1 information relevant to whether the case law concerning facilitation of discrimination 2 apply to the statute. The last of these three categories concerns evidence to rebut 3 Plaintiff’s argument that AB 1687 sweeps within its scope a substantial amount of 4 protected expression concerning the discussion of celebrities’ ages and personal 5 lives. 6 All of SAG-AFTRA’s and the Attorney General’s proposed discovery was 7 rejected by this Court. Under Fed. R. Civ. Proc. 56(d), it is not appropriate to grant 8 summary judgment when essential discovery necessary to oppose the motion was 9 prevented. 10 Additionally, the Declaration of Marilyn Szatmary, a talent agent and casting 11 director with decades of experience, establishes genuine issues of fact as to all these 12 issues. 13 To obtain relief under Rule 56(d) , SAG-AFTRA must show four things: (1) 14 facts indicating a likelihood that controverting evidence exists; (2) specific reasons 15 why such evidence was not discovered earlier; (3) the steps or procedures that the 16 party proposes to obtain the evidence in a reasonable time; and (4) an explanation of 17 how these facts will suffice to defeat summary judgment. Beverly Reid O'Connell & 18 Karen L. Stevenson, California Practice Guide: Federal Civil Procedure Before 19 Trial § 14:114 (The Rutter Group 2017 20 Here, there is a likelihood that SAG-AFTRA will be able to establish that 21 evidence in each of these categories exists – that age discrimination is pervasive, that 22 IMDb.com facilitates it as the “go to” entertainment industry site, and that AB 1687 23 24 AARP noted in its brief in opposition to Plaintiff’s preliminary injunction motion, birthdates are subject to extensive privacy protections under existing statutes and are generally not treated as 25 public information. Dkt. 35 at 7-8. While the public discussion of a famous celebrity’s age is likely a matter of public concern, there is no reason that the various statutes discussed in the AARP 26 brief that prohibit the dissemination of the birthdates of non-famous people who are not the subjects of public fascination would be constitutionally suspect. If Plaintiff’s position were taken 27 to its logical conclusion, the public disclosure of personally identifying information of ordinary, non-famous people is completely protected by the First Amendment, and the government may not 28 restrict this. That would completely compromise privacy laws that protect people’s personal identifying information, and there is no justification for recognizing such a right. -9{00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 14 of 15 1 applies to the birthdates of numerous non-celebrities whose personal information is 2 not subject to public discussion and interest. This discovery was obviously not 3 conducted due exclusively to this Court’s ruling prohibiting all discovery. SAG4 AFTRA and the Attorney General proposed specific steps and procedures to obtain 5 such discovery in their joint request to conduct limited discovery (Dkt. 68) which 6 this Court denied (Dkt. 73). Finally, under the case law relied upon by SAG7 AFTRA, a showing of the pervasiveness of age discrimination, and the 8 relationship/role that IMDb.com has and plays in its facilitation, can defeat summary 9 judgment. Similarly, a showing that AB 1687 applies mostly to unprotected speech 10 that does not relate to famous people defeats Plaintiff’s arguments even if they are 11 correct that Pittsburgh Press is inapplicable and the statute is subject to strict 12 scrutiny. See Broadrick v. Oklahoma, 413 U.S. 601(1973) (statute must be 13 “substantial[ly]” overbroad in relation to the statute’s legitimate scope to be struck 14 down on a facial challenge). 15 Indeed, even Plaintiff’s moving papers rely upon factual claims that have 16 never been subject to discovery. For instance, Plaintiff speculates that AB 1687 17 applies to numerous people (such as producers, directors, casting agents, etc.) who 18 face no serious threat of age discrimination. Dkt. 78 at 1, 10. This, of course, is pure 19 conjecture in the absence of discovery to develop the facts. Plaintiff could have 20 taken discovery to establish that these groups of people do not face a serious threat of 21 age discrimination, but instead Plaintiff opposed all discovery.4 22 Because this motion can only be determined after discovery, which SAG- 23 AFTRA has not been permitted to take, it should be denied. 24 25 4 It is worth noting that Plaintiff’s implication that only actors face age discrimination in the entertainment industry is inconsistent with reports that, for instance, writers also face such 26 discrimination. A group of writers received a $70 million settlement based on a claim of age 27 discrimination. Nikki Finke, “Huge $70M Settlement In TV Writers Age Discrimination Lawsuit: CAA Lone Holdout,” Deadline: Hollywood (Jan. 22, 2010), (at http://deadline.com/2010/01/huge28 70m-settlement-in-tv-writers-age-discrimination-lawsuit-23180/ ). Once again, discovery would be necessary to sort out whether there really are categories of individuals listed on IMDb.com who do. - 10 {00083702;8} Case 3:16-cv-06535-VC Document 80 Filed 08/24/17 Page 15 of 15 1 2 V. CONCLUSION For the foregoing reasons, Plaintiff’s motion for summary judgment should be 3 denied. 4 5 Respectfully submitted, 6 DATED: August 25, 2017. DOUGLAS E. MIRELL DILAN A. ESPER HARDER MIRELL & ABRAMS LLP 7 8 9 /s/ Douglas E. Mirell By ___________________________ Douglas E. Mirell Attorneys for Defendant/Intervenor Screen Actors Guild-American Federation of Television and Radio Artists 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 {00083702;8}