(Bloomberg View) -- Under existing doctrine, a federal district judge was probably right to temporarily block a California law designed to stop certain websites from listing actors' ages. But why shouldn't your age be a private fact you can keep to yourself? Not only can your age be used against you discriminatorily, but you also have a First Amendment right to lie about your age provided you aren’t engaging in fraud. This is an instance of a genuine, deep conflict between privacy and free speech. And in this instance, our system may have set the balance too far toward speech.
The law in question, California Assembly Bill 1687, was pushed by the Screen Actors Guild-American Federation of Television and Radio Artists, better known as the actors’ union. The law states its purpose right up front: “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”
As written, the law doesn’t prohibit you or me from announcing an actor’s age online. Instead it says that a “commercial online entertainment employment service provider” must agree not to publish the birthdate of a subscriber to that service if the subscriber demands it.
That mouthful of a description is tailored toward the Internet Movie Database, a site that, among other things, allows actors to upload their photos and resumes for simple, one-stop viewing by casting directors. In essence, the law says that IMDb can’t publish or disclose an actor’s age if the actor doesn’t want it out there.
If this law were conceived as a regulation of a contractual relationship between an online database and its subscribers, it wouldn’t necessarily run into First Amendment problems. Plenty of private contracts restrict the flow of information -- like nondisclosure agreements.
That private limit on free speech doesn’t ordinarily implicate the First Amendment protection against government suppression of communication. In principle, there’s no reason the state Legislature couldn’t pass a law that regulates nondisclosure agreements, or even mandates them in certain types of private contracts.
But the federal judge didn’t see the California law that way. Instead, the judge’s order treated the law as a restriction on IMDb “publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption.”
As the judge saw it, that made the law a content-based restriction on noncommercial speech. And in a basic sense, that description is accurate: Under the law, IMDb isn’t barred from publishing anything but an actor’s age, which is a kind of content.
Current U.S. Supreme Court doctrine requires that all content-based restrictions be subject to the highest level of judicial scrutiny. Technically, that means to survive, the law must be justified by a compelling government interest and narrowly tailored to achieve that interest by the least restrictive means possible.
In practice, almost no speech restriction can survive strict scrutiny. The judge acknowledged that protecting against age discrimination might be a compelling government interest. But he pointed out that barring IMDb from disclosing the information couldn’t be necessary as a matter of narrow tailoring because plenty of other websites publish actors’ ages.
That’s doctrinally plausible and probably correct. But it misses the point of the law. The law targeted IMDb because it's the industry's go-to source for casting. If an actor’s age is immediately available, it’s easy to use age as a tool of discrimination. The fact that the age might be uncovered only with a little more searching could actually reduce age discrimination. And it isn’t clear what other mechanism would work as effectively.
This in turn raises the deeper question of who owns age. Seen from the standpoint of the individual, one’s date of birth could easily be conceived as private information that the law ought to protect.
Indeed, you almost certainly have a First Amendment right to lie about your age. The precedent is U.S. v. Alvarez, a fascinating 2012 decision in which the U.S. Supreme Court held that Congress couldn’t make it a crime to falsely claim that you’ve won the Congressional Medal of Honor.
The defendant in the case, Xavier Alvarez, was something close to a pathological liar. In the memorable opening line of the case, Justice Anthony Kennedy made that clear: “Lying was his habit.” Yet the court held that Alvarez had a First Amendment right to lie provided he wasn’t defrauding anybody in the process. The ruling was necessary, Kennedy held, to avoid turning the government into an Orwellian ministry of truth.
If age is irrelevant to a given job determination, then there’s a constitutional right to lie about it -- including to IMDb. So why is there no right to suppress your age in the first place?
The answer is that the law protects your own speech about your age in the same way it does someone else’s speech about the same topic -- and giving both equal weight.
The law does allow some private facts to be kept secret. Health-care organizations, for example, can’t share your private information under HIPAA, the Health Insurance Portability and Accountability Act of 1996. And state laws may limit public disclosure of private facts -- as Gawker learned to its detriment after Hulk Hogan’s successful suit for invasion of privacy through the publication of a sex tape.
At present, however, a public source like IMDb can’t be barred from saying what it wants about your age. My legal advice to actors would be: Lie about it. It’s your constitutional right.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.
To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.net.
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