services online for example i am t v offers employment listings that allow potential employers to see entertainment professionals their filmography their past experience maybe a demo real information about or i am d b has always complied with that right or at least for the last eight or nine or ten years and they're not arguing about that part of the statute right correct your honor i am to be pro has offered that option  its subscribers even before any of the sixty seven the additional provision requires that i am also not post the information on its public facing website i am to be dot com this is a restriction delaware corporation with its principal place of business in the state of washington and i'm assuming a number of the subscribers are california residents but not all of them so how does the state of california have the right to regulate contractual relationships between a non california and to d and california residents that's a that's an interesting question your honor that you pose in your brief that this is just a form of commercial speech because it is just regulating contracts but it does more than that it goes beyond the contractual relationship between i m d b and a subscriber strength to the pro it goes to speech on the public site i m d b dot com which is not subject to a contractual relationship between i and its subscribers and even if we were looking at the pro site there are contractual relationships that have nothing to do with the state of california i see your point your honor of course the entertainment industry is largely based here and a lot of the subscribers themselves are in the state from that site and they've been complying with the what is the spirit of this or the terms of the statute even before the statute and so knackered and they have no intent to do otherwise so what we really need to focus on is the public platform that i am t v dot com and how is that is that when i'm telling you that make your statute over inclusive in that it restricts i am t v dot com from publishing all the age and data person information even with individuals who are not one of their subscribers and with individuals who are not within the protected class for each discrimination no your honor even even trying to be dot com the only information that would need to be removed is that information requested by a subscriber on the public site that doesn't appear to be commercial speech and it applies even beyond these contractual relationships between i m d b pro and its subscribers it does apply to information that might have come from a different source other than the subscriber themselves that's that's true but the fact remains that the commercial connection is that by publishing this information on the public facing website it's in effect proposing a commercial transaction and i'm trying to understand how on a public facing website putting in an actor or writers age which is publicly available and you can probably find it on w between the employment services being provided which under cases like pittsburgh press and even for vs fane are you know job employment solicitations or commercial speech the thing that makes this case unique is that there's this added  aspect of a public facing website but doesn't the press case stand for the proposition that the speech can be regulated if the speech itself is proposing a legal transaction  here in the supreme court he said it would be taken with the exact wording strange holding indeed to decide that you could restrict speech from an entity or a person because a rd party might do something illegal with it  the supreme court has noted that rd party activity can't really be the sole the the sole reason for setting speech however we see in pittsburgh press case and various other cases that actually i believe are better the side after papers that some restrictions have been upheld in order to achieve a particular public policy whether it be avoiding sex discrimination whether it be avoiding resegregation of a of  real estate sales in a particular area some of those things have been some of those restrictions household if i set up my own website and i have no contracts with anybody i can publish under this law would not forbid me let's assume i was based in california and did everything in california this law would not forbid me from publishing the age and date of birth of whoever i wanted but it would prohibit the apple leaders from doing that is correct honor if you didn't have any contract with any subscribers the law would not apply the law only applies to i m d b maine and google with the p d f any other site you can go to as long as they don't have a another site that has a subscription i'm actually into my last minutes but let me try to answer your question if it isn't under inclusive because the legislature was aiming at one particular field and that's the offering of employment services other sites on the internet that provide might provide this information for celebrities are offering the same services goal is to prevent discrimination in the employment test it appears that  s really under inclusive if that's the goal of the legislation and it doesn't explain why you treat both sites the same and it's possible that the and maybe even likely that the speech on the subscriber site is commercial speech there would still be a test that would apply would be the test in central hudson and you'd still have to show the substantial interest in that restriction material advances were substantially a not more extensive than necessary or it's not commercial speech and subject to strict scrutiny so either way we'd be applying a test to see if the statute is drawn so his notice under inclusive or over inclusive and i don't see your brief take that on other than to argue in general that this is not protected speech at all and then to suggest that lumping the two sides together they're both commercial speech i guess councillor you don't have a lot of time but that's my party with  is is whether or not you now really tailor to the and that you are trying to accomplish that that's now or doesn't get you where you need to be because you have to look at what your purported goal is and whether or not the there's another thing to keep in mind is that for a lot of the entertainment professionals we're talking about their age information isn't simply available via google search we're talking about this doesn't just apply to actors and actresses this applies to your agreed that they're not going to use any of the information they obtain from their subscribers so they're only going to be posting on the non pros site information that they have obtained other than from their subscribers right that's correct you see your point right my house might not be to your strongest line in terms of those people you're right it might be that only if someone's age or birthdate is available which you know maybe some good morning on has made please the court my name is douglas morale of greenberg oscar and i have the honor of representing the appellant defendant intervener screen actors guild american federation of television and radio artists let me address the questions that the panel seems to be most interested in which is under inclusive any and over inclusive a d let's talk st about under inclusive a d your honour's i m d b in this case has argued out of both sides of its mouth on the one hand it touts itself and you can see this at their brief page four as the unchallenged bible for reliable age related information and talent agents including ms sat murray whose declaration appears  under inclusive we can't have it both ways your honor well but hasn't the supreme court so you can't have it both ways because the statute of strict courtenay applies asked to be neither over inclusive nor under inclusive st your honor let me challenge to the court's conclusion that strict scrutiny applies this is a commercial speech case we believe your eyes i say mercial speech why is the non pro website proposing a commercial transaction when it lists when it has a profile  i proposing a commercial transaction because as the evidence limited as it is because of the discovery preclusion that is in fact in place in this case the evidence is that casting directors use dynamically i am d b dot com as the go to source for finding casting but how does that make i am to be a person offering a commercial transaction through that site because it has a contractual relationship that with the subscriber of i am to be pro and remember all we're dealing with here are restrictions that are sought to be imposed by those who are subscribers to i m d b pro if you're not a subscriber to i the same well your honor from that perspective i am to be has it within it to refrain itself from these transactions if it is no longer deemed to be a companion website under the statutes definition it could create a separate entity which if it were not a sham creation could operate as wiki pedia does but it doesn't do that or has and it does i mean but i'd like you to get back to how is how is on  site how is that commercial speech when they are simply publishing information and they're not charging anyone to access it and to follow up with which had been assessing your answer to that question was because i'm t v has contracts with subscribers for from a show on a different site that to me doesn't answer why the i m d b dot com site is commercial speech the i m d b com site is commercial speech for the reason i think i indicated at the outset which is that it is the source per the declaration tillerson that is successful that means your speech is if you're popular that makes a commercial speech is that the test for commercial speech no it's not a question of popularity it's a question of what is the site used for and it's used by casting directors in order to effectively preclude people ok from being able to portray from being able to get a part even though they may be able to speech you can nonetheless place a restriction or california can place a restriction on that speech because a rd party might use it for some illegal conduct that's your argument as i know you are not and that's precisely what has happened in the supreme court's case in pittsburgh press was getting paid to sort advertisements in categories that were directly promoting illegal com dr how is this similar because in particular press your honor it was the employers who are making the determination about whether they would hire or not hire based upon those categories ations here it's precisely the same situation employers are making a determination about whether or not to allow someone to audition for a part activity by posting that information and so i don't see how that speech is like pittsburgh press it's not speech proposing a legal transaction where your honor the notion of speech proposing an illegal transaction is not the test cases that we've cited including beric realty vs city of gary as well as the reagans vs new york times case establish that even if you have in the case of barrack a for sale sign posted on a home that act could be considered an act of racial discrimination if it's if it occurs in a community where panic selling has occurred and resegregation is a later well your honor there have been subsequent decisions including the cases that this court has decided that to stablish that what it was going on is commercial speech and if it is commercial speech then that's what the court will find to be improper so what we what we believe to is that beyond beyond barack there have been other cases decided seventeen years after that which which established the same proposition so that it is not necessary that the issue be whether or not the information what is there as truthful it may or may not be truthful and in this case by the way we don't have any assurance because again we have been precluded from undertaking any discovery about whether the information that actually appears counter age discrimination namely laws that are already on the books including fear poem it laws both state and federal what's your response to to that argument that this is not the most whether or not it passes scrutiny we have to determine whether or not the means the ends and so that's a question that's incorporated into that inquiry so we're not nd guessing the legislature we're doing our job to determine whether or not this legislation is constitutional you know i understand that your honor but the point i'm making is that the legislature in its in its analyses determined that the laws that are currently on the books are simply ineffective and that what happens in real life as a result of the existence of i am t v dot com is that casting directors are doing something now that they never did before previously they would take the information that a particular actor or actor's agent provided to them and ditch men and that information typically would not include age information and the reason for that is that  portrayal age is the relevant consideration rather than chronological age but that's not what i am the permits one to do i am to be essential he creates a template by which age discrimination is facilitated by by presenting that age in a prominent and conspicuous fashion on the very top near the very top of every i m d b dot com listing and your honor i apologize i'm seven specifically targets only one speaker i m d b secondly that a b one thousand six hundred and eighty seven censors truthful factual information about birth dates and agents of those in the entertainment industry which are publicly available facts three during the drafting of the legislation the legislature itself conceded that there were serious st amendment concerns raised by the law and that's an excerpt of record two hundred and four two thousand and five th because birth records are public records in california the state has already deemed date of birth information to be a matter of public interest the legislature nevertheless passed content based restrictions on speech critically and your honour's were questioning counsel about this the state has the burden to establish the constitutionality of and eighty seven but has provided no credible evidence that one thousand six hundred and eighty seven is narrowly tailored to the objective of precluding or limiting age discrimination and plainly it is not this state and sags justifications and interpretations of st amendment jurisprudence is contrary to decades of supreme court and th circuit cases they would rewrite a number of not commercial speech to go to the bulgars definition of commercial speech the core notion of commercial speech is a speech that does nothing more than propose a commercial transaction and bolger laid out three dollars to three dollars point tests that had to be made st the speech had to be an ad nd the speech has to refer to a specific product and thirdly there has to be an economic  question sorry your honor you don't reach the bolger test unless it's a close question whether the speech is commercial speech right and it's not a close question here at all sag and the attorney general would like you to remain in the context of i n d pro and as your honors have remarked we're in the realm of i m d b dot com and to be clear i am to be dot com is not an employer database it is one of the world's most visited websites it receives two hundred and fifty dollars unique visitors per month it has listings regarding movies t v shows all sorts of data that's only casting directors or people who are looking to populate movies no not at all it is just it is a vast publicly available database which is open to submissions like we did with a pedia from other rd parties who in fact do populate those websites within i m d b pro if this were a statue that were only focusing on i m d b dot pro and you had a contract in this would bring your the court within the realm cohen case which is what the petitioners have b dot pro and then i m d b dot pro on its own disregarded that contract and made it public will then we would have an issue here but of course that is not the case and the statute has swept pro and subscribers with whom you have contracts who request that you remove age related data from the i m d b dot pro post well your honor  facially practically in issue here because they are simply abiding by any requests from subscribers but i think it's very important that the the statute itself  b dot com n i m d b dot pro and they've taken the untenable position that somehow that is necessary and not over inclusive and under inclusive and that is the fatal failing that they have because clearly we are dealing with strict scrutiny because we have a content based regulation that appears not to be in dispute six hundred and eighty seven clearly singles out specific factual information it is noncommercial speech because it is simply not enough their best argument that it's commercial speech as well one of the vulgar factors involves an economic motive and one could make a creative argument that well i m t v dot com has ads on its website so maybe that's a sufficient motive but this court index media has answered that question there was a publication of yellow pages with subscriber information numbers and names and there even though it was a for profit publication this court made clear that wasn't sufficient to call it commercial speech here with i m d b dot com we are far removed from that because it is a broad public database that  your honor the information comes from multiple sources and it could include information that once is on i m d b dot pro it is part of the public domain but i think it's critical that the evidence in the record including what is recognized by the california legislature is that the inn for information is being populated by rd parties into i m d b dot com birth date information is publicly available information a mere request of the county recorder's office or other entities it is available and so i thought the record at i m d b agreed that if the only source for a subscribers birthdate information was from the subscriber that you would not use that to populate the i am d v dot com i'm i'm misremembering yes your honor that that is not in the record what i m d b has agreed to do i am to be pro has agreed to do is to remove information if the subscriber has put it there remember it's the subscribers choice they sign up for i m d b dot pro they don't have to put birth date and date of birth information and in fact neither of the petitioners have asserted that everyone does so that's point number one point two is if they put it on there and then later decide well i'd rather not have it on there it can be removed the answer to the question is it would be removed only if it were provided by the subscriber but if it were provided from a rd so as it would not remove well i want to make sure i'm answering that accurately your honor so if a provider provides date of birth information and i am d b to pro it is part of the public domain if that subscriber later because there are in any instance as the law is drafted the i am d b dot pro subscriber can make a request and automatically no matter how the information has been populated on i  so i guess the reason we're we're interested in this here i am anyways because seems to be a suggestion of this appropriation of information from contracts that if a subscriber signed up for  and either didn't include information or did it later requested that it be removed that i would be t v dot com would be the the actual entity that would take the information from the pro site and put in the constant i m d b dot com takes information wherever it is in the public domain and that may include i m d b dot pro and your honor let's run with that for a moment and see where that takes us in terms of jurisprudence if that were to be enough under their facilitation argument which misconstrues the pittsburgh press jurisprudence we would have a situation along the following lines where virtually all speech would be  sensible if i signed up to get the new york times and gave them my information and let's say i gave them my name date of birth information and there was even a contract provision there that said you can't use my information pursu  to my subscriber information in your new york times content and a similar law was passed here if i later ran for office and the new york times obtain my information from a rd party source they couldn't put my age in the new york times because i would be allowed to argue well as a subscriber i provided it earlier in time to the new york times i have the right now to preclude forever the new york times from ever publishing this even though that information is available elsewhere we have a similar situation here another situation under this unending facilitation all that it would bring to the court's attention would be a situation like with facebook in facebook which has billions of subscribers many people often put not only where they live but their home town well it is forbidden to discriminate based on national origin under the logic and case law that they are attempting to assert here facebook could would be forced to remove all hometown and origin information across millions of subscribers because there can be an argument that by doing so that would help facilitate the objective of limiting national origin discrimination that's the slippery slope that  here with the arguments from the a g and with set to address your honor the facilitation points which were argued at length here counts on both sides have sale signs with properties and i will note that that case has not been cited at all for twenty years and not for thirty years for st amendment jurisprudence but more importantly this is much ado about nothing here in this court because vile del sol is the two thousand and thirteen th circuit case which put an end to the debate about what pittsburgh press could and should mean by simply stating that the state can regulate speech and interpret in pittsburgh press that proposes or constitutes illegal activity that is the proper construction of pittsburgh press and with that like it and i enjoy going back and reading this case it was like going back to law school again that's the iconic one thousand and sixty nine case which considered when can you properly censor speech in the narrowest of circumstances but in compelling circumstances when the speech poses a danger to public safety even then the court required the most narrow of of tailoring it would only happen when directed to speech that was imminently inciting wallace behavior and likely to incite and produce lawless behavior if we take the new construction that the  upon this court it would wash away brandenburg and it's narrow limits it simply can't be the case and this th circuit jurisprudence has made it clear that we are on a much narrower pathway the entire premise that they have pressed and your honour's have cited this is fear of rd party use that has been repeatedly rejected by the supreme court and in particular the surete case which is one of the most analogous cases here in terms of discrimination a censor set of speech and of single speaker and the sirocco case clearly stated you cannot achieve quote policy objectives through indirect means of of restraining certain speech and quote in the bartunek the supreme court case held the same ways that the court could reconcile the privacy interests that are at stake with i b m for cement interest your honor that is another argument that has been brought up and  your honor there is no special safe harbor for what can be broadly construed as private speech st of all it's not private speech so factually we are not in a situation of private speech we're talking about public information in the state of california birth records being public in the information broadly apparent counseling or simply you're going and i understood your argument in the brief but the way i read their argument with respect to privacy interest was that it was another argument of a compelling state interest so they have the compelling state interest to preventive age based discrimination and they seem to be are he has a compelling interest in certain private information that typically the state would want to protect to prevent identity theft and if that's the case if if if if they're not carving out a separate area speech private speech is  not protected then i think we'd be back to strict scrutiny we just have exactly that is exactly right so even if we credit them with another compelling objective privacy we would be right back to strict scrutiny and they would be unable to show that the laws necessary as a district court noted there was not any effort by the attorney general to show that efforts to further and force the law to pass in force meant protocols against the perpetrators of age discrimination which is the conventional way to regulate that any effort has been made so it was both unnecessary and even with a concession that privacy interests are key and critical still would be over inclusive and under inclusive in the ways that we outlined and of just finished my last couple of nd seconds by citing and reminding the court of the florida star case and the daily mail supreme court case where a much more egregious circumstances where you had the names of rape victims and the compelling privacy interests of protecting the identity of a juvenile offender that was not sufficient to repulse the thank you your honors i'd like to address st to the question of whether birthdate information is actually public information it's true that at least in the state of california this is kind of a state by state area of law you are able to request for example an informational copy of someone's birth certificate however have to go through that process having to request it from a state office or a county office away for it pay a fee i typing into google someone's name and instantly having their age pop up in the case department of defense versus federal labor relations authority points out that people don't lose their privacy interests just because their information becomes public in some one format or another and the big the crux of this is the availability of this information over the internet what maybe six hundred and eighty seven is trying to do for the entertainment industry is maintain the protections in the employs employment housing law which prohibits potential employers from inquiring into an applicant's age california has the ability to change its laws so that you could not obtain an informational copy of your birth certificate they haven't done that so even though you say it's more cumbersome to obtain the information that would suggest that this law is directed only at i m d b it's directed to specific content and to a specific speaker how is that not subject to strict scrutiny honor you're correct that the state could change that law i don't know whether there's any any movement to do that or not but the fact is that the the laws that we had prohibiting potential employers from a information they just are working the same way in this age of the internet where a company like i m t v can make this this information public it will be available to everyone including all potential employers standing to challenge the portion of the law that's directed only to the i m d b pro site your honor we did not argue that in any of the briefing i don't think the issue of severability really came up i'd be happy to offer supplemental briefing on that if you'd arguments in this case the case just argued is submitted for decision by the co