The United States Supreme Court is considering reviewing California’s AB 5, a 2019 law designed to reclassify rideshare drivers as employees rather than contractors, but which rideshare companies successfully dodged and which instead reclassified multiple creative and journalistic positions in the state as contractors.
Rideshare companies carved out an exemption for their drivers through the 2020 Proposition 22.
The journalism organizations argue that the law is content-based, because it imposes financial and regulatory burdens based on the purpose of the speech in question.
The organizations also argued that the law should be reconsidered under strict scrutiny, because it imposes a First Amendment burden by depriving journalists of their livelihood and subjecting them to a higher burden of taxes and regulations.
AB 5 was based on the 2018 California Supreme Court Dynamex case. Dynamex decided that independent contractors should be classified as employees unless the employers prove that the worker is free from the control of the hiring entity, that the worker performs work outside the usual course of the employer and that the worker is normally performing similar work outside of their employment with the employer.
AB 5 extended Dynamex’s rule to all industries regulated by the Labor Code, including freelance journalists, with some carved-out exemptions. Marketers, grant writers and album cover photographers were exempted from the rule, but freelance writers, newspaper cartoonists and photojournalists were not.
“Thus, a newspaper cannot contract with a freelancer to replace an employee at the same or higher volume, but a marketing firm is free to do so. Or if an employee producing a biweekly column quits, the newspaper could not hire a freelancer producing a biweekly column or a weekly column. In effect, the work-volume limit operates as a submission limit, set at whatever number of submissions an employee— even a part-time employee—currently produces,” the journalism organizations wrote.
California Attorney General Rob Bonta filed a brief against the journalist organization’s petition May 23.
Bonta argued that the law does not differentiate between speakers based on their message, but that it constitutionally regulates economic activity.
“This Court has squarely rejected the argument ‘that any examination of speech or expression inherently triggers heightened First Amendment concern,’” Bonta wrote.
The American Society of Journalists and Authors, Inc. and the National Press Photographers Association filed their lawsuit against the state Dec. 17, 2019.
California Central District Judge Philip Gutierrez dismissed their case July 27, 2020. The Ninth Circuit decided against the journalists Oct. 6. The journalists requested the California Supreme Court review their case Feb. 22.
The Ninth Circuit Court of Appeals had agreed with the state.
“The panel held that Section 2778 regulates economic activity rather than speech,” the ruling said.
Read the original complaint here.
Read the Ninth Circuit decision here.
Read the full docket here.
Read the petition to review here.
Read Bonta’s response here.
James Manley, Deborah La Fetra and Caleb Trotter of the Pacific Legal Foundation represent the journalism organizations.
District Court case number 2:19-cv-10645.
Ninth Circuit case number 20-55734.
Supreme Court case number No 21-1172.
WEIGH IN
Should the U.S. Supreme Court agree to review California’s AB5?
