A Federal Court panel has ruled unanimously that it is not a violation of the First Amendment rights of freelance journalists for the State of California to restrict their ability to work and publish as independent contractors .
We are talking about Assembly Bill (AB) 5, the now infamous Labor Act of 2019 which imposes very strict controls on who can be classified as an independent contractor and who is considered an employee. The law formalized a 2018 California Supreme Court decision, Dynamex Operations West Inc. v. Los Angeles Superior Court. The ruling states that workers are employees unless they pass what is known as an “ABC test”, which depends on whether a workplace actually controls a worker’s tasks and s performs the work associated with this business entity. If he does, the state considers him an employee, not a freelancer.
To be clear, that a freelancer wanna being treated as an independent contractor does not count towards this criterion at all. Even though these rules can have a dramatic and negative impact on a person’s ability to earn a living, they have no say in it. That’s partly the point. AB 5 aims to make it difficult, if not impossible, for California businesses to work with freelancers and force them to rely on employees with fixed salaries and additional benefits.
The bill was very destructive to freelancers in all industries. It was specifically designed to try to hunt Uber and Lyft on behalf of the heavily unionized taxi cartel (and California voters decided in November to exempt those drivers, though a judge has since struck down the ballot initiative).
For freelance journalists, AB 5 initially capped the number of stories they could have an individual outlet publish while still being considered independent contractors. This has been devastating for a number of freelancers. It was also difficult because media finances just aren’t good today (advertisers continue to migrate to social media and internet platforms), and it wasn’t like all those freelancers could go get hired as reporters, even assuming they wanted to.
The American Society of Journalists and Authors and the National Press Photographers Association sued, arguing that the restrictions regulated their free speech and First Amendment rights of the free press and were therefore unconstitutional.
Unfortunately, the courts did not find their arguments persuasive and instead concluded that because AB 5 is a wide-ranging and generally applicable law affecting businesses statewide, it does not specifically target the speech of journalists. Therefore, according to the courts, the First Amendment is not involved here.
The latest Oct. 6 ruling comes from a panel of the United States Court of Appeals for the 9th Circuit, and all three justices agree that while AB 5 has the potential to significantly restrict the independent journalists’ ability to be paid for their work and the media’s ability to publish them does not violate the First Amendment:
The law targets the employment relationship, a traditional area of state regulation. The panel further recognized that while the ABC classification may indeed impose higher costs on hiring entities, which could mean fewer overall employment opportunities for some workers, such an indirect impact on speech n does not necessarily rise to the level of a violation of the First Amendment.
It’s an interesting and troubling analysis: if a state’s oppressive regulations make it too expensive for a company to employ journalists and publish stories under “generally applicable” rules, that’s not censorship. It’s just that a lot of stories never get written in the first place.
What is also interesting about the decision is that the judges justify the decision as being applicable in various industries, but the descriptions of AB 5 and a subsequent bill modifying the exempted professions and industries are distinguished by the complicated adjustments in various areas. Some professions have stricter restrictions than others. The rules for freelance writers have been relaxed. The story cap is gone, but now a freelance writer cannot be used to replace an employee at the same workload and cannot work outside of the company itself. This is yet another penalizing approach for an industry currently in a bad financial position.
AB 5 does not have a “generally applicable” set of rules applied to California businesses and independents based on some general sense of fairness, but rather the influence and influence of various organizations , in particular working groups, on the drafting of the law. It was only changed after public outcry over the predictable but devastating consequences of independent contractors’ inability to earn a living, but also the inability to land jobs in their fields.
It may be true that the destructive nature of the law is not a First Amendment concern, but it is most certainly a deep concern for those of us who value the right to freely associate with others as we wish. Freedom of association, recognized in the First Amendment by the Supreme Court, is not mentioned at all in the decision. What about a person’s right to decide for themselves whether or not they want to be an employee?