For a state with cities like Berkeley, which birthed the Free Speech Movement 54 years ago, California’s record on respecting the First Amendment is surprisingly spotty. That is especially true for the expressive activities of businesses. The state, as well as its municipalities, often curtail businesses’ speech, or compel them to speak, as a way to demonstrate government is “doing something” to solve complex social or public-health problems.
Occasionally, but not nearly often enough, courts reintroduce California’s censors to the First Amendment, as the U.S. Court of Appeals for the Ninth Circuit did last year in striking down San Francisco’s warning-label mandate for “sugary” drinks. On February 20, a Northern District of California judge handed the state its latest speech-regulation defeat, striking down a law designed to limit information that entertainment database company IMDb.com could publish (IMDb.com Inc. v. Becerra).
A 2016 California law, AB 1687, required the company, upon the request of a person who subscribes to the private IMDb Pro service, to remove his or her age from their public IMDb biography. The law claims to advance the state’s interest in preventing age discrimination—if IMDb doesn’t list a performer’s age, casting directors and others in the entertainment industry are less likely to pass over that person due to their age. The company filed suit and sought injunctive relief in November 2016, arguing the law violated the First Amendment.
Judge Vince Chhabria granted IMDb’s preliminary injunction motion on February 22, 2017. Almost exactly a year after imposing the injunction, Judge Chhabria granted IMDb’s motion for summary judgment.
California had argued that the challenged law regulated commercial speech, which traditionally receives somewhat lesser constitutional protection than non-commercial speech. Judge Chhabria appropriately shot down that argument, explaining that the restricted information is conveyed “in a manner unconnected to any commercial transaction” and that IMBb.com’s “financial interest in people’s reliance on [it] for information” does not mean the speech is commercial. The court’s reasoning will be valuable for other business plaintiffs in First Amendment challenges, as state and federal regulators routinely attempt to classify all expression by businesses as “commercial speech.”
The court also rebuffed California’s argument that it may ban the publication of entertainers’ age because the information facilitates a third party’s unlawful discrimination. Such a theory, “if successful, would enable states to forbid publication of virtually any facts,” Judge Chhabria explained. He added (citing for support a commercial-speech ruling, Sorrell v. IMS Health Inc.) that a third party’s possible misuse of information “almost never” justifies state suppression of truthful speech.
Judge Chhabria agreed that the law advanced a compelling state interest, but held that it was not narrowly tailored to achieve that interest. The state legislature did little more than “assert that there is a causal link” between age listings on IMDb.com and age discrimination. He also found the law to be underinclusive in that it leaves unregulated every other publisher of age-related information and applies only if an IMDb Pro subscriber requests an age take-down. In addition, the state failed to demonstrate that it considered any less-restrictive alternatives to regulating speech, such as amending age-discrimination laws.
Even if Judge Chhabria had agreed with the state’s characterization of the speech as commercial in nature, the outcome would arguably have been the same. The Supreme Court held in IMS Health that speaker- and content-based discrimination of commercial speech must withstand “heightened scrutiny.” The Court intended that such scrutiny, as Washington Legal Foundation recently argued in an amicus brief, be higher than the “intermediate scrutiny” applied under the Court’s Central Hudson test for commercial speech limits. The same flaws Judge Chhabria identified in his “strict scrutiny” of California’s content-based speech ban would doom the law under heightened scrutiny.
Finally, if any doubt remains that California is especially hostile to businesses’ speech rights, consider the discovery request it filed after the court imposed a preliminary injunction. The state sought, among other items, documents on IMDb’s efforts to lobby against the challenged law as well as its communications with third parties that filed supportive amicus briefs. Judge Chhabria strongly rejected these requests, writing:
In a normal civil case, these kinds of irrelevant and burdensome discovery requests are merely annoying. But this is a First Amendment case. … Against this backdrop, the government’s discovery requests are more than annoying. They’re disturbing. … [T]wo of the discovery requests are even worse: they are an outright abuse of power. It’s difficult to conceive of a reason, other than harassment, for seeking [such] communications … .
The result in IMDb.com should also be considered in the context of unrelated ongoing litigation in the Eastern District of Pennsylvania, Chamber of Commerce of Greater Philadelphia v. City of Philadelphia. That suit argues that a city ordinance prohibiting employers from inquiring about job applicants’ salary history violates the First Amendment. The city’s purported interest is prevention of gender discrimination. As with California’s AB 1687, Philadelphia simply presumes a causal connection between salary-history requests and discrimination. Also, the city argues that the ordinance regulates commercial speech.
The challenger has urged the court to evaluate the restriction under the same strict-scrutiny standard that Judge Chhabria applied in IMDb.com. WLF argued in its supportive amicus brief that regardless of how the court categorizes the speech, the ordinance discriminates against employers’ speech based on its content, and is thus presumptively unconstitutional.
Politicians and regulators should not treat businesses’ speech, be it non-misleading promotion of a legal product or truthful statements expressed in the course of economic activity, as collateral damage in attaining their social- or health-policy goals. Those goals may be unquestionably valid, but speech restrictions must be “actually necessary,” as Judge Chhabria explained—a last, not first resort in policymaking. We trust that our courts will keep that firmly in mind if governments persist in targeting speech rather than conduct.
Also published by Forbes.com on WLF’s contributor page.