Thursday, February 22, 2018 v. Becerra: Discrimination Against Older Women in the Entertainment Industry

In a win for free speech, Federal District Court Judge Vince Chhabria ruled that AB 1687, a California law that would restrict websites from publishing individuals' ages, is unconstitutional. Chhabria reasoned that, because the law singles out non-commercial speech for differential treatment, it is subject to strict scrutiny.  Even if there is some link between the availability of age information on the Internet and age discrimination in the entertainment industry, the state had not shown that the law was "actually necessary." There was no evidence that the state had explored less restrictive means of combating age discrimination, and rather than clarify the prohibition against age discrimination by the entertainment industry, the state had chosen to censor truthful information. The law was also flawed because it was underinclusive, since it only limited one type of speaker from disseminating age-related information.

And in a nod to #MeToo, Chhabria criticized AB 1687 as being fundamentally misguided for failing to attack what he sees as the main problem in the entertainment industry: sex discrimination.
The legislative materials repeatedly cite an article discussing "[t]he commonplace practice of casting a much younger female against a much older male" and lamenting the significant underrepresentation of women in leading roles and in directors' chairs. The defendants describe this as a problem of "age discrimination." While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don't typically refuse to cast an actor as a leading man because he's too old for the leading woman; it is the prospective leading woman who can't get the part unless she's much younger than the leading man. TV networks don't typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it's a manifestation of the industry's insistence on objectifying women, overvaluing their looks while devaluing everything else. The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it's trying to solve. 
Let's hope that Chhabria's words don't fall on deaf ears.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.