If you were old enough to watch “Beverley Hills, 90210” in the 1990’s – admittedly, I was not – you might remember Andrea Zuckerman, the show’s socially awkward, school-newspaper editor. As a 16-year-old high school student, Andrea was played by Gabrielle Carteris who at the time of casting was 29-years-old; a fact kept completely hidden from the directors of the show. While certainly a viable situation in the 1990’s, with modern technology and Google at the fingertips of even the most junior of production interns, this scenario is seldom seen in the Hollywood of the 2010’s. With online databases such as IMDb (Internet Movie Database) and Backstage.com becoming the staple of quick background checks in the entertainment industry, virtually any production company can now ensure they are hiring talent within an age demographic of their choosing.
In turn, this growing trend has led many actors to feel self-conscious and uncomfortable about their online profiles – most notably those found on IMDb – where their exact date of birth is found at the beginning of their profile. Compatible with a study done by Time magazine in 2015 ¬– which found that female actors see their careers peak at the age of 30, while male actors peak at the ripe old age of 46 – the aging talent base of Hollywood is concerned that modern technology will both stymy and end careers quicker than the pre-Internet norm. For example, Mrs. Carteris, who now currently sits as the president of SAG-AFTRA (Screen Actors Guild‐American Federation of Television and Radio Artists), notes that she would not have gotten a callback for 90210 if the directors knew she was almost 30 at the time. And without that initial break, who knows where should would have ended up?
Consequently, to combat this form of age discrimination in Hollywood casting, California legislature passed Assembly Bill 1687 (AB 1687) in October of 2016. In short, the law allows actors to request their date of birth be taken down from online databases, which, at the end of the day, targets IMDb directly. Nevertheless, the bill was met with harsh criticism from legal scholars such as Erwin Chemerinsky (Dean of UC Irvine Law School) and Eugene Volokh (Professor of Law at UCLA), who both argued that the bill likely did not pass constitutional muster under the First Amendment. Accordingly, in an order handed down on February 22nd, 2017, U.S. District Court Judge Vince Chhabria (Berkeley Law, ‘98), found AB 1687 to be unconstitutional. Ruling on a lawsuit brought by IMDb, Judge Chhabria claimed that it was “difficult to imagine how AB 1687 could not violate the First Amendment,” noting that as a restriction on “non-commercial” speech, the state of California did not successfully illustrate how targeting birthdates on IMDb was both “necessary” and “effective” in combatting age discrimination. Furthermore, Judge Chhabria suggested that there were better, more direct ways of challenging ageism in the entertainment industry; a stricter enforcement of current antidiscrimination law being one example. Similarly, other Hollywood insiders have argued that studios should take it upon themselves to enact internal policy change. Nonetheless, it is difficult to imagine studios like Warner Brothers or Universal willingly taking a broad stand against age discrimination on their own.
Regardless, I would have to agree with Judge Chhabria that AB 1687 is unconstitutional under the First Amendment; it restricts IMDb’s right to publish factual information (actors’ ages) for public consumption. However, it is frustrating that state legislation could not mitigate a problem that is affecting countless professionals in an incredibly competitive industry. On the other hand, Harvard Law professor, Noah Feldman, contends that AB 1687 could have been passed as a law more akin to a regulation on a “contractual relationship between an online database and its subscribers” – thus avoiding any conflict with the First Amendment – though he also finds the current version of the bill to be unconstitutional. For now, Professor Feldman suggests that actors simply lie about their age on IMDb because it is within their constitutional rights to do so.
While IMDb’s current lawsuit is still pending, Judge Chhabria’s ruling blocks the law from taking effect. Nevertheless, attorneys representing SAG-AFTRA claim that this order was merely an “early skirmish” in a long legal battle. While the odds are certainly against AB 1687 passing a constitutional test in the Ninth Circuit, at the very least legislators have finally acknowledged the endemic problem of ageism in the entertainment industry. But when all is said and done, age discrimination is still alive and kicking in Tinseltown.