Ninth Circuit shuts down journalists’ challenge to California’s freelance law

(CN) — A three-judge Ninth Circuit panel found Wednesday that a federal court was correct in dismissing a lawsuit filed by the American Society of Journalists and Authors and the National Press Photographers Association challenging the State’s passage of Assembly Bill 5 and its various amendments.

AB5 took effect on Jan. 1, 2020, limiting the type of work certain freelancers in the state can perform without being considered on-staff employees. Many journalists and photographers cried foul when the bill passed, claiming it would severely limit job opportunities for California-based freelancers, and have a negative impact on their livelihoods. Almost immediately after its passage, numerous companies began adding disclaimers to their freelance job postings for writers and photographers stating that residents of California would not be considered because of the new restrictions.

The bill codified the “ABC test,” first presented in a California Supreme Court case against Dynamex, and now used to determine whether a worker should be classified as an employee or an independent contractor. To classify someone as a contractor rather than an employee, a company must show that they do not directly control the worker, that the tasks performed by the worker fall outside the company’s primary business and that the worker is “customarily engaged in an independently established trade.” If a business cannot tick all three boxes, they must deem a worker to be an employee.

In its original form the bill capped at 35 the number of freelance assignments an individual could perform for a given company in a single year, which many writers and photographers said falls far short of the workload necessary to support themselves. That cap was subsequently removed by the passage of AB2257, but many freelancers still claim their work is being impeded by other provisions in AB5.

Among the plaintiffs’ primary disputes is their claim that other types of freelancers, such as marketers and artists, aren’t having their work restricted in the same way as reporters and photographers, which led to the case filed by ASJA and NPPA against California’s Attorney General, Rob Bonta.

“Under California law, the freedom to freelance depends on the type of speech you produce: marketers, grant writers and fine artists can freelance freely, but journalists and videographers cannot,” said Jim Manley, attorney in the case for the National Press Photographers Association. “The Supreme Court in Reed v. Town of Gilbert said that sort of discrimination based on the 'function or purpose' of speech violates the First Amendment. The decision today fails to apply the Supreme Court’s rulings and we look forward to correcting it, either by asking the Ninth Circuit to reconsider the decision en banc, or by asking the Supreme Court to review the case. We will have a decision about next steps shortly.”

The California State Attorney General's office did not immediately respond to a request for comment.

The panel unanimously ruled that AB5 and its amendments, now codified in section 2778 of the California Labor Code, “regulates economic activity rather than speech” and therefore doesn’t infringe on anyone’s right to communicate – merely their ability to earn a living from it.

“The statute is aimed at the employment relationship – a traditional sphere of state regulation,” the panel claimed in their ruling.

The judges added that while the ABC classification does impose added costs on companies’ hiring activities, meaning it could reduce the number of jobs available to certain freelancers in California, that alone does not rise to the level of a First Amendment violation, and rejected the idea that the press as an institution has been singled out.

The judges conceded that freelance writers and photographers received a narrower exemption than was offered to other professions, however the panel ultimately decided that the legislature’s “occupational distinctions are rationally related to a legitimate state purpose” and therefore affirmed a district court’s earlier dismissal of the case.

In the end, the panel concluded that the law makes sense because it exempts certain professions where worker misclassification hasn’t traditionally posed as much of a problem.

“Section 2778’s use of different worker-classification tests for different occupations under different circumstances does not implicate the First Amendment or violate the Equal Protection Clause,” ruled the panel. “The law regulates economic activity, not speech, and a rational basis supports the distinctions it draws. We therefore affirm the dismissal of ASJA’s suit and, accordingly, need not address the denial of ASJA’s request for a preliminary injunction.”

The ruling was authored by U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee. She was joined on the panel by Circuit Judge Danielle Forrest, a Donald Trump appointee, and U.S. District Judge Richard Seeborg, a Barack Obama appointee, sitting by designation from the Northern District of California.

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