Is it proper to ask thespians their age? It is, a federal judge in San Francisco says.

U.S. District Judge Vince Chhabria recently ruled on a request for an injunction against it that a California law, which prevents the film and television information website IMDB from posting actor’s real ages, is out of bounds and cannot be enforced.

While the law’s aim was to prevent age and gender discrimination in casting, the judge held that the law likely abridges expression of non-commercial free speech, writing,  “it’s difficult to imagine how AB 1687 [the law] could not violate the First Amendment.”

Yelps from a movie info site

The popular site claims it was targeted by the law, since there really isn’t another company like it that would be similiarly affected. AB1687, passed by California lawmakers and signed by Gov. Jerry Brown, barred online publication of actors’ ages.

The big problem is that a violation of this law is based on the particulars of what the site posts or publicly “says.” As constitutional law geeks know, the government telling private civilians “you can’t say this particular thing,”—in this case giving actors ages on IMDB—can amount to a content-based restriction of free speech.

If a speech ban is based on a message’s content, then the law proposing such a ban must be absolutely necessary for the government to enforce it, ala anti-hate speech statutes, the courts have held. Authorities also must seek the least restrictive means of abridging speech.

But Chhabria found that “the government has not shown how AB 1687 is ‘necessary’ to advance that goal [of averting age and gender discrimination]. In fact, it’s not clear how preventing one mere website from publishing age information could meaningfully combat age discrimination at all.”

Keeping casting info offline

In the entertainment industry, it is common for male and female actors to decline to reveal their age, not because of tact or any social construct but for business reasons. If they do, they may limit their  marketability to play different roles of varying ages.

In 2011, actress Huong Huang sued IMDB for revealing her age, which she intentionally omitted on her actress profile on the site. When IMDB “fixed” the omission and posted her age, she sued on multiple counts, including fraud and privacy violation. She said the site caused her harm because she lost acting gigs when casting directors knew her age—older than 40.

She and others noted that women, especially, often can be perceived by directors and casting directors to be “over-the-hill,” and “(i)f one is perceived to be ‘over-the-hill,’ i.e. approaching 40, it is nearly impossible for an up-and-coming actress, such as the Plaintiff,” to be considered for any roles.

IMDB ultimately won this case—no surprise since it was decided by a jury in Seattle, the headquarters home of Amazon, the defendant’s parent company. SAG-AFTRA then worked with California lawmakers to draft a measure forcing IMDB to drop actors’ ages on request. Advocates called this a key step to combat age and gender discrimination.

Hollywood’s ageism and sexism

While state lawmakers may have had their hearts in the right place, AB1687 and Huang’s case may not be the needed balm for Hollywood’s deeper woes with age and gender discrimination (as well as racism), which, hard to fathom, still exist in 2017.

While television has made strides in recent years in creating quality roles for women, movies have a long way to go, baby. As Lily Tomlin recently observed in an Elle Magazine interview: “There are a lot of shows on HBO and Netflix and Showtime that deal with an older demographic. … they are certainly more egalitarian in terms of dealing with people who are professionals in their forties and fifties….”

But while hit broadcast network shows like Scandal, How To Get Away With Murder, and This Is Us offer some fine roles for women, academic research shows that in 2016, audiences were more than twice as likely to see male as female characters in the movies; the women were younger than the men; and women characters were less likely than males to be seen at work, actually working, and were less likely to be portrayed as leaders.

Further, the top ten 2016 box office earners only had one starring role for a woman older than 40, and it was in the animated feature Finding Dory. Of course that may be because—on a subject for a whole other post for this site—most of the top 10 grossing films for 2016 were from comic books, involved (male) superheroes (Deadpool, Captain America: Civil War, Suicide Squad, Rogue One), or were animated features (Dory, Secret Life of Pets, Zootopia).
Better writing for movie roles for a spectrum of actors—women, women of color, men of color, members of the LGBTQ community and more—may not only get Hollywood out of its stereotyping rut, could it open new ways to profits, too (see Moonlight, Fences etc.)? But at least for now, writing laws that block online disclosure of actors ages won’t be a useful remedy to some persistent industry banes.