Freelance Journalists Make Their Case to the Ninth Circuit Over California’s Gig Worker Law

California’s freelance reporters and photographers argue they’re unfairly singled out in legislation meant to address the gig economy.

President Donald Trump speaks to reporters as he arrives at Sacramento McClellan Airport, in McClellan Park, Calif. on Sept. 14, 2020, for a briefing on wildfires. (AP Photo/Andrew Harnik)

(CN) — A Ninth Circuit panel on Friday considered a California law that was meant to address the misclassification of workers in the amorphous gig economy and how freelance journalists feel that they got the short end of the stick in that piece of legislation.

California Assembly Bill 5 expanded the state’s labor code beginning in 2020 where workers could be classified as employees if they meet certain standards established in the landmark California Supreme Court Dynamex case. Workers previously classified as independent contractors could enjoy minimum wage laws and other benefits.

Multiple industries sought their own exemption from AB 5. Most notably the ride-sharing and delivery apps Uber, Lyft, DoorDash, Instacart and Postmates poured millions into a ballot initiative that would exempt their industries from the law.

Another industry that sought exemptions included freelance journalists and photographers. The American Society of Journalists and Authors and National Press Photographers Association sued the state of California and argued the exemptions to their industries were unevenly distributed. The press organizations argued the restrictions placed on freelancers would disadvantage California journalists because national outlets would avoid those freelancers to avoid classifying them as employees.

U.S. District Judge Philip Gutierrez from the Central District of California dismissed the lawsuit, ruling that California demonstrated its interest in extending labor protections to all workers. The press groups appealed the decision, arguing the statute’s language is unclear about how some occupations are defined.

On Friday, a three-judge panel listened to oral arguments about whether AB 5 violates freelance journalists’ First Amendment rights or, as the state argues, the statute is merely a general labor regulation that does not infringe on speech.

For the press associations, attorney John Manley from the Pacific Legal Foundation argued that the state gives differential treatment based on what someone says in their work. A freelance writer who works as a marketer in the morning and a reporter in the evening faces different types of restrictions and exemptions under AB 5. Photographers also face a similar situation where the state could deem some photographs as fine art or journalism.

U.S. District Judge Richard Seeborg, a Barack Obama appointee and sitting by designation from the Northern District of California, said there’s a big difference between what a fine artist and a journalist says in their work.

“I’m not sure I see where those clear lines are in place. Therefore, I don’t see it has any impact on impinging on what the speaker is saying,” Seeborg said.

Manley said it’s how the state determines the distinction and restrictions that makes up this differential treatment.

“The problem with the way the statute is set up is the state has to go and say, ‘Is this fine art or is this photojournalism?’ And when the state is making that determination, the only thing it’s looking at is the content,” said Manley. “That’s a content-based distinction that’s subject to strict scrutiny.”

Manley said the court needs to apply strict scrutiny to the freelancer’s First Amendment and equal protection claims, which the parties did not get from the federal court.

Deputy Attorney General Jose Zelidon-Zepeda for the state of California argued the Legislature attempted to parcel out occupations that are usually misclassified.

“What we have here under AB 5 is a law that classifies individuals as employees or independent contractors. It does not limit their ability to speak on any particular topic,” said Zelidon-Zepeda.

U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, said the Legislature’s reasoning for its exemptions were unclear.

“When I look at it, it kind of seems like the people who got the best exemptions probably had the best lobby,” said Callahan. “I’m having a hard time really understanding why certain exemptions came about.”

Zelidon-Zepeda said specific classifications might focus on speech but the Legislature focused on occupations previously misclassified.

On a facial challenge, AB 5 comes across as neutral, said U.S. Circuit Judge Danielle Forrest, a Donald Trump appointee. But when it comes to a challenge on a particular part of the statute, the language hits some bumps.

“In an as applied (challenge), we look at on the face it looks neutral, but when it gets to actually putting this thing it into practice, certain speakers, certain industries that are specifically connected to speech are being burdened in a way that others are not,” said Forrest.

Zelidon-Zepeda said the press groups suing California make a facial challenge against AB 5, but their argument says that the statute could be unconstitutional if it’s applied a certain way against certain groups. That’s still a matter of trying to argue against the entire statute, argued Zelidon-Zepeda.

“Perhaps there are potential situations where a particular individual might say, well, I am going through a classification proceeding and have found to be an employee and I think this violates my rights. That would be a true as applied challenge,” said Zelidon-Zepeda.

In that case, Forrest asked if the state wanted the panel to disregard any declarations from the press groups if their argument is merely a facial, catch-all challenge to AB 5. The federal court’s dismissal was only made after the plaintiffs decided to not amend their complaint, said Zelidon-Zepeda, so yes, this is a facial challenge. The state contends that AB 5 is merely an economic regulation that addresses commercial conduct and not a matter of speech.

Manley said that the Legislature doesn’t have a proven record of following any one approach. In September 2020, California lawmakers passed Assembly Bill 2257, a sort-of AB 5 fix, that did away with a cap on the number of articles a freelancer could write for a publication. But it excludes freelance journalists and photographers from receiving exemptions enjoyed by other groups.

“What we’ve alleged is that this is just naked favoritism,” said Manley. “And I think that the scattershot way these exemptions apply, the way they’ve only doubled down on these scattershot approach to these exemptions in AB 2257, demonstrates that our allegations were reasonable, and we should be allowed to develop a record to support them.”

The panel took the arguments under submission and did not indicate when they would return with their ruling.

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