imdb.com Inc v. Xavier Becerra

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IMDB.COM INC., a Delaware No. 18-15463
corporation,
Plaintiff-Appellee, D.C. No.
3:16-cv-06535-
v. VC

XAVIER BECERRA,
Defendant,

and

SCREEN ACTORS GUILD-AMERICAN
FEDERATION OF TELEVISION AND
RADIO ARTISTS,
Intervenor-Defendant-
Appellant.
2 IMDB.COM V. SAG-AFTRA

IMDB.COM INC., a Delaware No. 18-15469
corporation,
Plaintiff-Appellee, D.C. No.
3:16-cv-06535-
v. VC

XAVIER BECERRA, in his official
capacity as Attorney General of the OPINION
State of California,
Defendant-Appellant,

and

SCREEN ACTORS GUILD-AMERICAN
FEDERATION OF TELEVISION AND
RADIO ARTISTS,
Intervenor-Defendant.

Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding

Argued and Submitted September 9, 2019
Pasadena, California

Filed June 19, 2020

Before: Johnnie B. Rawlinson, Mark J. Bennett,
and Bridget S. Bade, Circuit Judges.

Opinion by Judge Bade
 IMDB.COM V. SAG-AFTRA 3

SUMMARY *

Civil Rights

The panel affirmed the district court’s grant of summary
judgment in favor of plaintiff in an action challenging
enacted Assembly Bill 1687, which prohibits a specified
category of websites from publishing the ages and dates of
birth of entertainment industry professionals.

The panel first determined that Assembly Bill 1687 (“AB
1687”) appeared to target a single entity: the Internet Movie
Database, IMDb, Inc. IMDb operates a free, publicly
available website, IMDb.com, that offers a comprehensive
database of information about movies, television shows, and
video games. Similar to Wikipedia, anyone with an internet
connection and a user account may update and provide
information for the site, subject to review by IMDb. IMDb
also operates a subscription-based service for industry
professionals, known as IMDbPro. AB 1687 requires that a
subscription-based service like IMDbPro, upon a
subscriber’s request, must (1) remove the subscriber’s age or
date of birth from that subscriber’s paid-for profile; and must
also (2) remove from public view in an online profile of the
subscriber, the subscriber’s date of birth and age information
on any companion Internet Web sites under its control.

Focusing its analysis on the statute’s provision
pertaining to companion websites, such as IMDb.com, the
panel held that AB 1687 prohibits the publication of specific

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 IMDB.COM V. SAG-AFTRA

content by specific speakers. It was therefore a content-
based restriction on speech that was subject to strict scrutiny.
The panel rejected defendants’ argument that the statute
merely regulated contractual obligations between IMDb and
subscribers to IMDbPro. The panel held that the statute
reaches far beyond the terms of any subscriber agreement. It
applies not only to paid-for profiles—like those on
IMDbPro—but also to entries on the publicly available, non-
subscription site IMDb.com. It therefore prohibited the
publication of information submitted by members of the
public with no connection to IMDb.

The panel further rejected the contention that strict
scrutiny did not apply because the speech implicated by AB
1687 fell into one of three categories of speech entitled only
to reduced protection: (1) commercial speech; (2) illegal
speech; and (3) speech implicating private matters.

The panel held that the content found in profiles on
IMDb’s public website did not meet the standard for
commercial speech because the profiles on IMDb.com do
not propose a commercial transaction. The panel further
held that the speech did not facilitate illegal conduct, and
finally the panel held that neither this court, nor the Supreme
Court, has held that content-based restrictions on public
speech touching on private issues escape strict scrutiny.

The panel held that AB 1687 did not survive strict
scrutiny. Although the panel agreed with the district court
that reducing incidents of age discrimination is a compelling
government interest, the panel held that the statute was
neither the least restrictive means to accomplish that goal,
nor narrowly tailored. The panel determined that the State
had not explored, or even considered, a less restrictive means
to combat age discrimination in the entertainment industry
 IMDB.COM V. SAG-AFTRA 5

before resorting to the drastic step of restricting speech. The
panel further found that AB 1687 was underinclusive
because it failed to reach several potential sources of age
information and protected only industry professionals who
subscribe to IMDbPro, and who ask for their age information
to be removed from the public website, IMDb.com.

The panel held that the district court did not abuse its
discretion in denying the parties’ discovery requests, stating
that it failed to see how any of the proposed requests would
affect the panel’s conclusion on the merits.

COUNSEL

Douglas E. Mirell (argued) and Kelly M. Raney, Greenberg
Glusker Fields Claman & Machtinger LLP, Los Angeles,
California, for Intervenor-Defendant- Appellant.

Amie L. Medley (argued), Deputy Attorney General; Mark
R. Beckington, Supervising Deputy Attorney General;
Thomas S. Patterson, Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, Los Angeles, California; for Defendant-Appellant.

John C. Hueston (argued), Hueston Hennigan LLP, Newport
Beach, California; Moez Kaba, Adam Olin, and Jenna G.
Williams, Hueston Hennigan LLP, Los Angeles, California;
for Plaintiff-Appellee.

Barbara A. Jones and William Alvarado Rivera, AARP
Foundation, Washington, D.C., for Amici Curiae AARP,
AARP Foundation, Alliance of Retired Americans and
Communication Workers of America, and AFL-CIO.
6 IMDB.COM V. SAG-AFTRA

Elizabeth Rosenfeld and Michael R. Odoca, Wohlner
Kaplon Cutler Halford & Rosenfeld, Encino, California, for
Amicus Curiae Studio Transportation Drivers, Local Union
No. 399 of the International Brotherhood of Teamsters.

Mary-Christine Sungaila, Haynes and Boone LLP, Costa
Mesa, California; Polly Fohn and Natasha Breaux, Haynes
and Boone LLP, Houston, Texas; for Amici Curiae First
Amendment Scholars and Reporters Committee for
Freedom of the Press.

David Greene, Electronic Frontier Foundation, San
Francisco, California, for Amici Curiae Electronic Frontier
Foundation, First Amendment Coalition, Media Law
Resource Center, Wikimedia Foundation, and Center for
Democracy & Technology.

OPINION

BADE, Circuit Judge:

In 2016, the State of California—at the behest of the
Screen Actors Guild (“SAG”)—enacted Assembly Bill 1687
(“AB 1687”), which prohibits a specified category of
websites from publishing the ages and dates of birth of
entertainment industry professionals. The statute appears to
target a single entity: IMDb.com Inc. (“IMDb”). IMDb
sued the State to prevent future enforcement of the statute,
arguing that it violated IMDb’s First Amendment speech
rights and other constitutional and statutory provisions. The
district court agreed and enjoined the State’s enforcement of
the statute—first on a preliminary basis and then
permanently after further briefing by the parties. Both the
State and SAG, as an Intervenor, appealed to this court.
 IMDB.COM V. SAG-AFTRA 7

On its face, AB 1687 prohibits the publication of specific
content, by specific speakers. Therefore, it is a content-
based restriction on speech that is subject to strict scrutiny.
Because the State and SAG fail to demonstrate that AB 1687
survives that standard, we affirm the district court.

BACKGROUND

True to its long-form name, the Internet Movie Database,
IMDb operates a free, publicly available website that offers
a comprehensive database of information about movies,
television shows, and video games. Visitors to IMDb.com
can peruse movie reviews, trivia, plot summaries, and
fictional character biographies. The site also contains
encyclopedic entries on cast and crew members in the
industry. Often, but not always, these biographical entries
contain the subject’s age or date of birth. In total, IMDb.com
contains more than three million unique pages for titles and
more than six million entries for cast and crew. As of
January 2017, it ranked as the 54th most visited website in
the world.

Compiling the data found on IMDb.com takes work. But
rather than employ its own in-house army of movie buffs for
the job, IMDb relies on a cheaper, more abundant workforce:
its users. Thus, similar to Wikipedia, anyone with an
internet connection and a user account may update and
provide information for the millions of pages on the site.
IMDb, however, does not take a completely hands-off role.
Instead, it employs a “Database Content Team” tasked with
reviewing the community’s additions and revisions for
accuracy.

In 2002, IMDb launched a subscription-based service for
industry professionals, known as IMDbPro, to complement
its public facing site. Subscribers to IMDbPro span the
8 IMDB.COM V. SAG-AFTRA

entertainment industry, including A-List actors, role players,
writers, set designers, makeup artists, camera operators,
sound editors, and many others. IMDbPro functions more
or less as Hollywood’s version of LinkedIn. The job-seeking
subscribers create a quasi-resumé by uploading headshots,
demo reels, prior jobs, and other biographical information.
In turn, casting agents and producers, who also pay to
subscribe, access these profiles through IMDbPro to cast
actors and hire crews for projects.

In 2016, citing concerns about age discrimination in the
entertainment industry, SAG sponsored legislation that
eventually became AB 1687. SAG called out IMDb
specifically for facilitating discriminatory conduct, citing an
unsuccessful lawsuit by an aspiring actress against the
company. 1 Legislative history accompanying later versions
of the bill pointed to a May 21, 2015 article from The
Guardian, in which an Academy Award-nominated actress
alleged that a casting director rejected her for a role because
of her age. 2

The California Legislature passed the measure, the
governor signed it into law, and the statute took effect on
January 1, 2017. 2016 Cal. Legis. Serv. Ch. 555 (codified at
Cal. Civ. Code § 1798.83.5).

1
See Second Amended Complaint, Hoang v. Amazon.com, Inc., No.
2:11-cv-01709-MJP (W.D. Wash. Apr. 25, 2012), ECF No. 45.
2
Ben Child, Maggie Gyllenhaal: At 37 I Was “Too Old” for Role
Opposite 55-Year-Old Man, The Guardian (May 21, 2015),
https://www.theguardian.com/film/2015/may/21/maggie-gyllenhaal-too-
old-hollywood.
 IMDB.COM V. SAG-AFTRA 9

The statute provides that:

A commercial online entertainment
employment service provider that enters into
a contractual agreement to provide
employment services to an individual for a
subscription payment shall not, upon request
by the subscriber, do either of the following:
(1) [p]ublish or make public the subscriber’s
date of birth or age information in an online
profile of the subscriber [or] (2) [s]hare the
subscriber’s date of birth or age information
with any Internet Web sites for the purpose of
publication.

Cal. Civ. Code § 1798.83.5(b)(1)–(2). This provision
requires that a subscription-based service like IMDbPro, 3
upon a subscriber’s request, must remove the subscriber’s
age or date of birth from that subscriber’s paid-for profile.

But the statute contains a more controversial provision.
If a subscriber asks a provider to remove his or her age or
date of birth from a paid-for profile, the provider also must
“remove from public view in an online profile of the
subscriber the subscriber’s date of birth and age information
on any companion Internet Web sites under its control.” Id.
§ 1798.83.5(c) (emphasis added). Thus, if asked to do so,
IMDb must remove age information not only from a
subscriber-curated profile on IMDbPro, as it has done in the

3
Neither party disputes that IMDb is a “commercial online
entertainment employment service provider” that “provides employment
services” to “subscribers” through IMDbPro.
10 IMDB.COM V. SAG-AFTRA

past, but also from any separate profile publicly available on
IMDb.com.

Before AB 1687 took effect, IMDb filed a complaint
under 42 U.S.C § 1983 in the Northern District of California
to prevent its enforcement. IMDb alleged that AB 1687
violated both the First Amendment and Commerce Clause of
the Constitution, as well as the Communications Decency
Act, 47 U.S.C. § 230(f)(2). IMDb later moved for a
preliminary injunction to expedite the district court’s
consideration of the issue. SAG then moved to intervene to
defend AB 1687 alongside the State. The district court
granted IMDb’s motion on First Amendment grounds and
entered a preliminary injunction prohibiting enforcement of
the statute. The State and SAG declined to exercise their
rights to appeal that decision to this court in lieu of
proceeding to the ultimate resolution of the matter in the
district court.

Although the parties agreed to limit the litigation to
IMDb’s First Amendment claim, both the State and SAG
requested limited discovery before completing summary
judgment briefing. The court rejected the attempt but
permitted the State and SAG to file a brief “to explain with
specificity what discovery they want to conduct,” including
draft discovery requests. The State and SAG complied and
submitted twenty-eight document requests and seven
interrogatories. They also proposed conducting a Rule
30(b)(6) deposition of IMDb.

The State and SAG argued that the requests fell into five
broad categories meant to show: (1) whether information on
IMDB.com facilitates age discrimination, (2) IMDb’s intent,
(3) actual incidents of age discrimination, (4) whether IMDb
uses improper means to gather information, and (5) the
relationship between IMDb.com and IMDbPro. The State
 IMDB.COM V. SAG-AFTRA 11

and SAG later stated that their requests would address the
fundamental issue raised in the district court’s preliminary
injunction order: that “[t]he government has presented
nothing to suggest that AB 1687 would actually combat age
discrimination.”

The district court held a hearing on the discovery
requests, and the State reiterated that it designed the
discovery requests to gather evidence to show that AB 1687
was “narrowly tailored to meet a compelling [government]
interest.” The district court rejected each proposed request
in a written order. In that order, the district court noted that
the State would need to show that it had “no other reasonable
way to combat age discrimination in the entertainment
industry.” The district court took issue with the requests,
describing some as “disturbing” and “an abuse of power”
and noting that the State attempted to “[r]estrict speech first
and ask questions later.” Therefore, the district court
concluded that, although discovery might be warranted in
some First Amendment cases, the State failed to identify any
“factual question that would meaningfully affect the analysis
of the constitutionality of the statute on its face.”

The district court later granted IMDb’s motion for
summary judgment on its First Amendment facial challenge
to AB 1687. First, the district court rejected the State’s and
SAG’s attempts to deflect any level of scrutiny under the
First Amendment. Thus, the court concluded that AB 1687
could not “properly be considered a regulation of voluntary
commercial contracts” because it “neither regulates any
existing agreement between subscribers and IMDbPro nor
imposes an after-the-fact requirement on IMDb not to
disclose information provided by subscribers to IMDbPro.”
The district court further dismissed the contention that the
statute was either a law of general applicability, a law that
12 IMDB.COM V. SAG-AFTRA

regulated commercial speech, or a law that regulated speech
that “facilitates” discrimination. The court therefore
proceeded to a strict scrutiny analysis. Although the district
court found that combating age discrimination in the
entertainment industry was a compelling government
interest, it determined that the State failed to introduce any
evidence to show that AB 1687 was “actually necessary.”
Specifically, the court noted that “the record provides no
evidence that California explored less-speech-restrictive
alternatives, like amendment, clarification, or enhanced
enforcement of antidiscrimination laws, before imposing
this restriction on IMDb’s speech.” Moreover, it found that
the law was not narrowly tailored because the law was both
underinclusive and overinclusive. Accordingly, the district
court found the statute in conflict with the First Amendment.
Both the State and SAG appealed the district court’s
summary judgment order, as well as its order denying
discovery, to this court.

We review the district court’s discovery rulings for an
abuse of discretion, see Surfvivor Media, Inc. v. Survivor
Prods., 406 F.3d 625, 630 (9th Cir. 2005), and its grant of
summary judgment de novo, Asarco LLC v. Atl. Richfield
Co., 866 F.3d 1108, 1118 (9th Cir. 2017).

DISCUSSION

We first address a fundamental disagreement between
the parties: which portion of the statute should be the focus
of our analysis. The statute imposes two separate but closely
related prohibitions.

First, it forbids the publication of age information (upon
request) on paid-for subscriber profiles hosted by a
“commercial online entertainment employment service
provider.” See Cal. Civ. Code § 1798.83.5(b)(1)–(2). The
 IMDB.COM V. SAG-AFTRA 13

State and SAG largely focus on this portion of the statue,
which restricts IMDbPro. But the parties do not dispute that
IMDb already affords its subscribers the option to remove
their ages from their IMDbPro profiles (but not from any
companion profile on the public site) and that it has done so
since 2010. There has been no suggestion that IMDb would
change this policy in the absence of AB 1687.

Second, the statute prohibits a provider from publishing
age information on any public “companion” website, such as
IMDb.com, without regard to the source of the information.
IMDb contests this provision. Indeed, this provision was the
focus of IMDb’s challenge and request for injunctive relief
in the district court, and it remains the focus of the parties’
dispute on appeal. Because this aspect of the statute presents
the central issue on appeal, we focus our inquiry here.

I. AB 1687 Imposes a Content-Based Restriction on
Speech

Next, we must determine whether AB 1687 implements
a content-based restriction on speech subject to First
Amendment scrutiny, or whether it is simply a law of general
applicability immune from the strictures of the First
Amendment as the State and SAG contend. We conclude
that it is the former.

The First Amendment, as incorporated and applied to the
states by the Fourteenth Amendment, curtails a state’s ability
to implement “content-based” restrictions on speech. Reed
v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). A speech-
restricting statute is “content-based” if it, “by its very terms,
singles out particular content for differential treatment.”
Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009)
(en banc). Such restrictions are disfavored and
“presumptively invalid.” See R.A.V. v. City of St. Paul,
14 IMDB.COM V. SAG-AFTRA

505 U.S. 377, 382 (1992). Thus, the government bears the
burden of demonstrating the constitutionality of a speech-
restricting statute. United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 816 (2000); see also Sorrell v. IMS
Health Inc., 564 U.S. 552, 571–72 (2011).

In contrast, a law of general applicability does not
“offend the First Amendment simply because [its]
enforcement” may have an “incidental effect[]” on speech.
See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991)
(concluding that the First Amendment does not bar a cause
of action for promissory estoppel). Private parties may
freely bargain with each other to restrict their own speech,
and those agreements may be enforced, without implicating
the First Amendment. See id. at 671. This principle is
limited; we will not characterize a “state-created” restriction
on speech as a “simple bargain” if it “existed independently
of, and prior to, any interaction between” the speaker and
another. Lind v. Grimmer, 30 F.3d 1115, 1118–19 (9th Cir.
1994). Furthermore, a law’s practical effects are not merely
“incidental” when it imposes restrictions “based on the
content of speech and the identity of the speaker.” IMS
Health, 564 U.S. at 567.

On its face, AB 1687 restricts speech because of its
content. See Reed, 135 S. Ct. at 2227. It prohibits the
dissemination of one type of speech: “date of birth or age
information.” Cal. Civ. Code § 1798.83.5(b). And, perhaps
more troubling, it restricts only a single category of speakers.
Id. § 1798.83.5(d)(1). Thus, AB 1687 “impose[s] direct and
significant restrictions” on a category of speech. See Lind,
30 F.3d at 1118. It does not apply generally. The statute
affects IMDb’s speech in a manner that is far more than
“incidental” and therefore it must withstand First
Amendment scrutiny. See IMS Health, 564 U.S. at 567.
 IMDB.COM V. SAG-AFTRA 15

We are unpersuaded by the State’s and SAG’s argument,
relying on Cohen, that the statute merely regulates
contractual obligations between IMDb and subscribers to
IMDbPro. AB 1687 does not simply enforce a bargain
between IMDb and its subscribers. IMDb contracts with its
subscribers to allow them to create profiles on IMDbPro that
are viewed by casting directors and agents. Under these
agreements, IMDb permits IMDbPro subscribers to control
the dissemination of their own age-related information on
their own paid-for profiles. But the statute reaches far
beyond the terms of any subscriber agreement. It applies not
only to paid-for profiles—like those on IMDbPro—but also
to entries on the publicly available, non-subscription site
IMDb.com, regardless of agreement between IMDb and its
subscribers. See Cal. Civ. Code § 1798.83.5(c). The statute
does not restrict only information misappropriated through
the parties’ contractual relationship; it also prohibits the
publication of information submitted by members of the
public with no connection to IMDb. These restrictions apply
regardless of whether an IMDb public profile existed
independent of, or prior to, any contractual agreement
between IMDb and an IMDbPro subscriber.

For these reasons, Cohen does not support the State’s and
SAG’s position. Instead, Cohen itself calls into question the
propriety of state regulations that “define[] the content of
publications that would trigger liability.” 501 U.S. at 670.
Here, IMDb and its subscribers have not “determine[d] the
scope of their legal obligations.” See id at 671. Through AB
1687, the State usurped that determination. Moreover, the
enactment of the statute belies the State’s argument that AB
1687 merely requires IMDb to keep its promises. In its
absence, IMDb would owe no such duty to its subscribers.
Therefore, the statute is subject to analysis under the First
Amendment.
16 IMDB.COM V. SAG-AFTRA

II. Reduced Protection Does Not Apply to the Speech AB
1687 Restricts

In the majority of cases, we apply the most exacting form
of review—strict scrutiny—to determine the validity of a
content-based restriction on speech. See, e.g., Reed,
135 S. Ct. at 2227; Animal Legal Def. Fund v. Wasden,
878 F.3d 1184, 1204 (9th Cir. 2018). But this is not an
absolute rule and some categories of speech receive reduced
protection. See United States v. Swisher, 811 F.3d 299, 313
(9th Cir. 2016) (en banc) (“Even if a challenged restriction
is content-based, it is not necessarily subject to strict
scrutiny.”).

For example, courts permit content-based restrictions on
select categories of speech “which are ‘of such slight social
value . . . that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality.’” R.A.V., 505 U.S. at 383 (quoting Chaplinsky v.
New Hampshire, 315 U.S. 568, 572 (1942)) (listing
categories of speech traditionally entitled to reduced
protection); see also Lind, 30 F.3d at 1118 (“[C]ategories,
such as fighting words and obscenity . . . are undeserving of
full First Amendment protection.”). The courts similarly
afford reduced protection to commercial speech. See, e.g.,
Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 820–21 (9th Cir.
2013) (applying reduced level of scrutiny to content-based
regulation of commercial speech).

Nevertheless, state legislatures do not have
“freewheeling authority to declare new categories of speech
outside the scope of the First Amendment.” See United
States v. Stevens, 559 U.S. 460, 472 (2010). Thus, “without
persuasive evidence that a novel restriction on content is part
of a long (if heretofore unrecognized) tradition of
proscription, a legislature may not revise the ‘judgment [of]
 IMDB.COM V. SAG-AFTRA 17

the American people,’ embodied in the First Amendment,
‘that the benefits of its restrictions on the Government
outweigh the costs.’” Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786, 792 (2011) (alteration in original) (quoting
Stevens, 559 U.S. at 470)).

The State and SAG each argue that the speech implicated
by AB 1687 falls into one of three categories of speech
entitled only to reduced protection: (1) commercial speech;
(2) illegal speech; and (3) speech implicating private
matters. We disagree.

A. Commercial Speech

First, the content found in profiles on IMDb’s public
website does not meet the standard for commercial speech.
Commercial speech “does no more than propose a
commercial transaction.” See Va. State Bd. of Pharmacy v.
Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762
(1976) (internal quotation and citation omitted). “Where the
facts present a close question, ‘strong support’ that the
speech should be characterized as commercial speech is
found where the speech is an advertisement, the speech
refers to a particular product, and the speaker has an
economic motivation.” Hunt v. City of Los Angeles,
638 F.3d 703, 715 (9th Cir. 2011) (citing Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 66–67 (1983)). However,
the speaker’s “economic motivation” is “insufficient by
itself” to render speech commercial. Bolger, 463 U.S. at 67;
see also Dex Media W., Inc. v. City of Seattle, 696 F.3d 952,
959 (9th Cir. 2012) (declining to conclude that speech was
commercial where it failed to satisfy “two of the three Bolger
factors”).

The facts here do not present a close question; public
profiles on IMDb.com do not “propose a commercial
18 IMDB.COM V. SAG-AFTRA

transaction.” Va. State Bd. of Pharmacy, 425 U.S. at 762.
These free, publicly available profiles are found in an
“online database of information” and are surrounded by
content that “includes information on cast, production crew,
fictional characters, biographies, plot summaries, trivia and
reviews.” The content is encyclopedic, not transactional.
Similarly, although AB 1687’s restrictions apply to profiles
hosted by those providing employment services, those
restrictions also extend to those profiles on companion sites
where content is uploaded by members of the public. Cal.
Civ. Code § 1798.83.5(c). Such profiles do not “propose a
commercial transaction.” Va. State Bd. of Pharmacy,
425 U.S. at 762.

Because IMDb’s public profiles do not “propose a
commercial transaction,” we need not reach the Bolger
factors. See Hunt, 638 F.3d at 715 (concluding that the
Bolger factors are relevant if the facts present a “close
question”). But even if the question were close, nothing in
the record indicates that IMDb.com profiles either (1) are an
advertisement or (2) refer to a particular product. See id.
Thus, even assuming IMDb has a financial interest in its
public profiles, these profiles are not commercial speech.
See Dex Media W., Inc., 696 F.3d at 960 (noting that
“economic motive in itself is insufficient to characterize a
publication as commercial”). 4

4
We similarly reject the State’s argument that IMDb public profiles
qualify as “commercial speech” because AB 1687 “extends the
contractual obligation of confidentiality to other websites.” This
argument merely repackages the State’s earlier argument that the First
Amendment does not apply at all.
 IMDB.COM V. SAG-AFTRA 19

B. Speech that Facilitates Illegal Conduct

Second, we reject SAG’s reliance on Pittsburgh Press
Co. v. Pittsburgh Commission on Human Relations,
413 U.S. 376 (1973), to argue a lower level of scrutiny
applies because AB 1687 “regulates activity that facilitates
illegal conduct.”

In Pittsburgh Press, the Supreme Court addressed a
challenge to a city ordinance that prohibited discrimination
on various bases, including sex. 413 U.S. at 378. To support
that prohibition, the ordinance forbade the dissemination of
advertisements that “indicate[d] any discrimination because
of sex.” Id. (internal quotations and alterations omitted).
The National Organization of Women filed a complaint with
the Pittsburgh Commission on Human Relations alleging the
Pittsburgh Press violated these provisions because it
published advertisements for job openings with “the
captions ‘Jobs–Male Interest,’ ‘Jobs–Female Interest,’ and
‘Male–Female.’” Id. at 379, 392–93. The Court upheld the
ordinance as consistent with the First Amendment, noting
that the newspaper’s “First Amendment interest” was
“altogether absent when the commercial activity itself”—
i.e., the indication of a preference on the basis of sex—“is
illegal.” Id. at 389.

That rationale does not apply here. Pittsburgh Press
implicates only those instances when the state restricts
speech that itself proposes an illegal transaction. See, e.g.,
United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers
to engage in illegal transactions are categorically excluded
from First Amendment protection.” (citing Pittsburgh Press
Co., 413 U.S. at 388)); Valle Del Sol Inc., 709 F.3d at 822
(“Nothing in Pittsburgh Press . . . suggests that we should
expand our inquiry beyond whether the affected speech
proposes a lawful transaction . . . .”). But we find nothing
20 IMDB.COM V. SAG-AFTRA

illegal about truthful, fact-based publication of an
individual’s age and birthdate when that information was
lawfully obtained.

If accepted, SAG’s interpretation of Pittsburgh Press
would require this court to permit the restriction not only of
speech that proposes an illegal activity but also facially
inoffensive speech that a third-party might use to facilitate
its own illegal conduct. But as the Supreme Court has noted,
“it would be quite remarkable to hold that speech by a law-
abiding possessor of information can be suppressed in order
to deter conduct by a non-law-abiding third party.”
Bartnicki v. Vopper, 532 U.S. 514, 529–30 (2001); see also
IMS Health, 564 U.S. at 577 (“But the fear that people would
make bad decisions if given truthful information cannot
justify content-based burdens on speech.” (internal quotation
and citation omitted)). 5 Rather than restrict truthful speech,
the typical “method of deterring unlawful conduct is to
impose an appropriate punishment on the person who
engages in it.” Bartnicki, 532 U.S. at 529. Thus, nothing in
the First Amendment nor our precedent permits the drastic
step that SAG advocates.

5
We similarly reject SAG’s reliance on Barrick Realty, Inc. v. City
of Gary, 491 F.2d 161 (7th Cir. 1974), which held that a regulation
prohibiting the display of “for sale” signs did not violate the First
Amendment. Id. at 164. Barrick Realty, however, predates the Supreme
Court’s modern commercial speech jurisprudence. See Linmark Assocs.,
Inc. v. Twp. of Willingboro, 431 U.S. 85, 95 n.9 (1977) (“We express no
view as to whether Barrick Realty can survive Bigelow [v. Virginia,
421 U.S. 809 (1975)] and Virginia Pharmacy Bd.”). And, in Linmark
Associates, the Court struck down on First Amendment grounds a
regulation identical to that at issue in Barrick Realty. 431 U.S. at 96–97.
 IMDB.COM V. SAG-AFTRA 21

C. Speech Implicating Privacy Concerns

Finally, both the State and SAG argue that a less exacting
standard of review applies to AB 1687 because “it restricts
only speech of a purely private concern.” However, neither
this court, nor the Supreme Court, has held that content-
based restrictions on public speech touching on private
issues escape strict scrutiny. We decline to create such a
broad category of speech entitled only to reduced protection
and allow expanded restrictions on content-based speech.

To be sure, courts have long recognized that the First
Amendment and an individual’s right to privacy present
competing concerns. See, e.g., The Florida Star v. B.J.F.,
491 U.S. 524, 530–31 (1989) (collecting cases).
Nevertheless, we will not cordon off new categories of
speech for reduced protection unless it “is part of a long (if
heretofore unrecognized) tradition of proscription.” Entm’t
Merchs. Ass’n, 564 U.S. at 792 (citing Stevens, 559 U.S. at
470). Neither the State nor SAG identify any compelling
evidence that content-based restrictions on lawfully obtained
age information have any historical analog. Thus, we will
not exclude information about a person’s age “from the
normal prohibition on content-based restrictions.” See Nat’l
Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361,
2372 (2018) (quoting United States v. Alvarez, 567 U.S. 709,
722 (2012) (plurality opinion)).

The authority presented by the State and SAG does
nothing to change this conclusion. Although many state and
federal statutes “regulate data collection and disclosure”
without implicating the First Amendment, such statutes
regulate the misuse of information by entities that obtain that
information from individuals through some exchange. See,
e.g., 18 U.S.C. § 2710 (prohibiting disclosure of personally
identifiable information obtained in the course of video tape
22 IMDB.COM V. SAG-AFTRA

rental); 47 U.S.C. § 551 (cable subscribers); 20 U.S.C.
§ 1232g (educational agencies); 15 U.S.C. §§ 6501–6506
(websites). Such restrictions differ significantly from AB
1687, which by its terms prohibits the publication of
information without regard to how it was obtained.

Similarly, the plethora of Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, cases cited by the State and SAG
do not implicate prohibitions constrained by the First
Amendment. Rather, FOIA cases typically ask whether, as
a matter of statutory interpretation, the government must
affirmatively disclose personally identifying information.
See, e.g., U.S. Dep’t of Def. v. Fed. Labor Relations Auth.,
510 U.S. 487 (1994). This case poses a different question
entirely: whether a state can prohibit the dissemination of
lawfully obtained information, albeit that of a private
character. Cf. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 934 (D.C. Cir. 2003) (“Indeed, in
contrast to FOIA’s statutory presumption of disclosure, the
First Amendment does not ‘mandate[] a right of access to
government information or sources of information within the
government’s control.’” (alteration in original) (quoting
Houchins v. KQED, 438 U.S. 1, 15 (1978) (plurality
opinion))).

The case that may provide the best support for the State’s
contention is Trans Union Corp. v. FTC, 267 F.3d 1138
(D.C. Cir. 2001), denying reh’g from, 245 F.3d 809. But
Trans Union Corp. is distinguishable. There the D.C.
Circuit rejected a First Amendment challenge against
provisions of the Fair Credit Reporting Act limiting the
ability of credit reporting agencies to sell consumers’ private
personal information. See id. at 1143. In upholding the
statute, the court applied intermediate scrutiny. Id. at 1140.
But although the court acknowledged the consumers’
 IMDB.COM V. SAG-AFTRA 23

privacy interests in the data, its analysis focused on the
commercial nature of the speech at issue. See id. at 1141.
Moreover, the “speech” at issue—the sale of data—was
itself an inherently private exchange between private parties.
Here, in contrast, IMDb posts the information on its website
free of charge for the public to review. This fact alone
imparts an inherently public character to the speech at issue.
See Snyder v. Phelps, 562 U.S. 443, 453 (2011) (stating that
the “‘content, form, and context’ of the speech” determine
whether it is of public concern (quoting Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985))).

We set a high bar for cordoning off new types of speech
for diminished protection. Thus, although the courts have
recognized some conflict between the First Amendment and
privacy interests, we lack the “persuasive evidence” in this
case that would permit a content-based prohibition of age
information without subjecting that restriction to strict
scrutiny. See Nat’l Inst. of Family & Life Advocates,
138 S. Ct. at 2372 (internal quotation and citation omitted).

III. AB 1687 Does Not Survive Strict Scrutiny

Because AB 1687 does not regulate commercial speech,
or any other form of speech entitled to reduced scrutiny only,
we apply strict scrutiny to determine its validity. This “is a
demanding standard,” Entm’t Merchs. Ass’n, 564 U.S.
at 799, and “[i]t is rare that a regulation restricting speech
because of its content will ever be permissible,” Playboy
Entm’t Grp., Inc., 529 U.S. at 818. Accordingly, the state
must show that the statute “furthers a compelling
governmental interest and is narrowly tailored to that end.”
Reed, 135 S. Ct. at 2231. “If a less restrictive alternative
would serve the Government’s purpose, the legislature must
use that alternative.” Playboy Entm’t Grp., Inc., 529 U.S.
at 813. Similarly, a statute is not narrowly tailored if it is
24 IMDB.COM V. SAG-AFTRA

either underinclusive or overinclusive in scope. Animal
Legal Def. Fund, 878 F.3d at 1204.

We agree with the district court that reducing incidents
of age discrimination is a compelling government interest.
Thus, we must determine only whether AB 1687 is the least
restrictive means to accomplish that goal and narrowly
tailored. We conclude that it fails on both points.

A. Least Restrictive Means

Even if a state intends to advance a compelling
government interest, we will not permit speech-restrictive
measures when the state may remedy the problem by
implementing or enforcing laws that do not infringe on
speech. See Vill. of Schaumburg v. Citizens for a Better
Env’t, 444 U.S. 620, 637 (1980); see also Italian Colors
Rest. v. Becerra, 878 F.3d 1165, 1178 (9th Cir. 2018)
(“California could also enforce its existing laws . . . .”).
“[B]ecause restricting speech should be the government’s
tool of last resort, the availability of obvious less-restrictive
alternatives renders a speech restriction overinclusive.”
Valle Del Sol Inc., 709 F.3d at 826 (citation omitted). Here,
the State has not explored, or even considered, a less
restrictive means to combat age discrimination in the
entertainment industry before resorting to the drastic step of
restricting speech.

Neither the State nor SAG dispute that speech-neutral
remedies exist. See, e.g., California Fair Employment &
Housing Act, Cal. Civ. Code §§ 12900–12996. Yet, they
offer little argument to show why these laws are insufficient.
Although the State points to evidence in AB 1687’s
legislative history, this history is murky at best. This
evidence consists largely of a single, anecdotal account of
discrimination from one actress in an article in The
 IMDB.COM V. SAG-AFTRA 25

Guardian. But the article does not address whether the
actress attempted to avail herself of any other remedy or why
any other remedy was insufficient. In sum, the article offers
nothing to show that less-restrictive means are insufficient
to combat age discrimination. 6

The legislative history similarly cites statistics from the
U.S. Equal Employment Opportunity Commission
(“EEOC”). These statistics purport to show that age
discrimination claims rose thirty-eight percent from 2006 to
2013. But the EEOC statistics are generalized and do not
speak to a specific industry. Thus, the State cannot show
that the entertainment industry experiences higher rates of
age discrimination than industries that are not affected by
age information on IMDb’s websites. Moreover, it does not
follow that a rising rate of such claims indicates that the
current law, or another speech-neutral law, would be
insufficient to address this problem.

Thus, the State cannot meet its burden because it fails to
point to any evidence demonstrating that less restrictive
measures would not be effective. 7 See Valle Del Sol Inc.,

6
The article further cites statistical evidence from both an ACLU
initiative to fight industry discrimination and a San Diego State
University study detailing discrimination rates in the entertainment
industry. But both studies appear concerned with sex discrimination
rather than age discrimination.
7
SAG cites a statement by Los Angeles County Supervisor Sheila
Kuehl to support its claim that less restrictive measures would not be
effective. But this evidence was not before the district court. Instead,
the statement was submitted to this court for the first time during the
pendency of the appeal. SAG offers no justification for this court to now
consider it as evidence, and we decline to do so. See United States v.
Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
26 IMDB.COM V. SAG-AFTRA

709 F.3d at 827 (“Nothing in the record shows that Arizona
could not effectively pursue its interest in traffic safety by
enforcing or enacting similar kinds of speech-neutral traffic
safety regulations.”). Because the State “has various other
laws at its disposal that would allow it to achieve its stated
interests while burdening little or no speech,” it fails to show
that the law is the least restrictive means to protect its
compelling interest. See Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 949 (9th Cir.
2011) (en banc). That failure alone dooms AB 1687.

B. Narrowly Tailored

Similarly, a state fails to narrowly tailor a speech-
restrictive law where it eliminates one form of speech “while
at the same time allowing unlimited numbers of other types
. . . that create the same problem.” Reed, 135 S. Ct. at 2231.
On its face, AB 1687 restricts only websites like IMDb.com
while leaving unrestricted every other avenue through which
age information might be disseminated. This presents
serious concerns here because AB 1687 appears designed to
reach only IMDb. Cf. Entm’t Merchs. Ass’n, 564 U.S. at 802
(“Underinclusiveness raises serious doubts about whether
the government is in fact pursuing the interest it invokes,
rather than disfavoring a particular speaker or viewpoint.”
(emphasis added)).

In defense of the statute, the State argues that the
limitation is justified because IMDb is the principal source
of the age information available to casting directors. But we
have never conditioned our strict scrutiny analysis on
whether others outside the scope of the statute are currently
engaging in the same speech. Cf. The Florida Star, 491 U.S.
at 540 (noting that a statute was underinclusive because it
restricted newspapers from disseminating information but
not a hypothetical individual from maliciously spreading
 IMDB.COM V. SAG-AFTRA 27

that same information). Similarly, it is irrelevant to our
analysis that other mediums may contain age information on
a more circumspect basis. “A ban on disclosures effected by
‘instrument[s] of mass communication’ simply cannot be
defended on the ground that partial prohibitions may effect
partial relief.” Id. (alteration in original) (citation omitted).
Because AB 1687 leaves open the possibility that others may
disseminate age information unfettered, we cannot conclude
that its “selective ban . . . satisfactorily accomplishes its
stated purpose.” Id. at 541; see also Smith v. Daily Mail
Publ’g Co., 443 U.S. 97, 104–05 (1979) (finding statute
underinclusive when it prohibits publication of information
in only one medium).

Furthermore, the statute is underinclusive because it
limits its restrictions to those who both (1) subscribe to
IMDbPro and (2) request that IMDb remove his or her
information from its public website. See Cal. Civ. Code
§ 1798.83.5(c). Although the State and SAG describe this
feature as one that demonstrates the statute’s narrow
tailoring, this limitation calls into question the State’s true
motives in enacting the statute. And the State does not
extend the protection to everyone in the entertainment
industry despite contending that age discrimination warrants
the serious step of infringing on First Amendment rights;
instead, it extends this protection only to those who pay to
subscribe to IMDbPro, and who ask for their age information
to be removed from IMDb.com. The State might be able to
offer some justification for this feature, but it has not done
so here, buttressing the conclusion that the law is woefully
underinclusive.

Accordingly, AB 1687 is underinclusive because it fails
to reach several potential sources of age information and
protects only industry professionals who both subscribe to
28 IMDB.COM V. SAG-AFTRA

such service and who opt-in. This malady means that the
statute is not narrowly tailored, and thus, is unconstitutional.

IV. The District Court Did Not Abuse its Discretion
in Denying Discovery

That leaves one final issue for us to resolve. In the
typical case, a district court permits each party to gather any
relevant, non-privileged information in the possession of any
opposing party or third party essential to proving its position.
Here, however, the district court rejected the State’s and
SAG’s attempts to do so. Each argues that this was an abuse
of discretion. We disagree.

A district court abuses its discretion with respect to
discovery orders only “if the movant diligently pursued its
previous discovery opportunities, and if the movant can
show how allowing additional discovery would have
precluded summary judgment.” Qualls v. Blue Cross of
Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994). We do not doubt
that the State and SAG diligently pursued discovery here.
But we fail to see how any of the proposed discovery
requests would affect our conclusion on the merits.

SAG contends that additional discovery would have
been used to establish the following:

(1) the severity and pervasiveness of age
discrimination in the entertainment industry;
(2) the role of IMDb.com in facilitating age
discrimination; and (3) the extent to which
AB 1687 protects professionals in the
entertainment industry, including
professionals who are not famous performers
whose ages or birthdates may be the subject
of legitimate discussion.
 IMDB.COM V. SAG-AFTRA 29

Similarly, the State asserts it would have used discovery to
identify information that would refute the district court’s
conclusions: (1) that “AB 1687 bans only one kind of
speaker from disseminating age-related information, leaving
all other sources . . . untouched”; and (2) “that defendants
have not shown that partially eliminating one source of age-
related information will appreciably diminish the amount of
age-related discrimination occurring in the entertainment
industry.” However, no information discovered within these
categories could unsettle two of our principal conclusions:
(1) that AB 1687 is a content-based restriction of speech
subject to strict scrutiny and (2) that the State fails to show
that AB 1687 is the least restrictive means to accomplish its
goal.

At bottom, the State’s and SAG’s discovery requests
reflect a fundamental misunderstanding about the State’s
burden in justifying restrictions on speech. Here, it does not
matter that AB 1687 would accomplish what it sets out to
do. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (“[T]he
test does not begin with the status quo of existing
regulations, then ask whether the challenged restriction has
some additional ability to achieve [the state’s] legitimate
interest. Any restriction on speech could be justified under
that analysis.”). An unconstitutional statute that could
achieve positive societal results is nonetheless
unconstitutional. Cf. Reed, 135 S. Ct. at 2229 (“Innocent
motives do not eliminate the danger of censorship presented
by a facially content-based statute, as future government
officials may one day wield such statutes to suppress
disfavored speech.”). We therefore affirm the district court’s
discovery rulings.
30 IMDB.COM V. SAG-AFTRA

CONCLUSION

Unlawful age discrimination has no place in the
entertainment industry, or any other industry. But not all
statutory means of ending such discrimination are
constitutional. Here, we address content-based restrictions
on speech and hold that AB 1687 is facially unconstitutional
because it does not survive First Amendment scrutiny. 8 We
affirm the district court’s grant of summary judgment.

AFFIRMED.

8
Although our analysis focuses on the portions of the statute
restricting publication on “companion” websites, neither the State nor
SAG raised any argument in their briefs or at oral argument that any
portion of the statute is severable. Thus, we deem the argument waived
and determine that the statute is unconstitutional as a whole. See Comite
de Jornaleros de Redondo Beach, 657 F.3d at 951 n.10.