A federal court panel has unanimously ruled that it’s not a violation of freelance journalists’ First Amendment rights for the state of California to restrict their ability to work and be published as independent contractors.
We’re talking about Assembly Bill (A.B.) 5, the now-infamous 2019 labor law that puts very tight controls on who may be classified as an independent contractor and who is considered an employee. The law formalized a 2018 California Supreme Court ruling, Dynamex Operations West Inc. v. Superior Court of Los Angeles. That decision dictates that workers are employees unless they pass something known as an “ABC test,” which hinges on whether a workplace actually has control over a worker’s tasks and whether he does the work associated with that business entity. If he does, the state considers him an employee, not a freelancer.
To be clear, whether a freelancer wants to be treated as an independent contractor does not factor into this test at all. Even though these rules can have a dramatic and negative impact on someone’s ability to earn a living, he doesn’t get a say. That is partly the point. A.B. 5 is intended to make it hard, if not impossible, for California businesses to work with freelancers and instead force them to rely on employees with fixed wages and additional benefits.
The bill was very destructive for freelancers in all lines of work. It was specifically designed to try to drive out Uber and Lyft on behalf of the heavily unionized taxi cartel (and California voters decided in November to exempt these drivers, though a judge has since overruled the ballot initiative).
For freelance journalists, A.B. 5 initially put a cap on the number of stories they could get published by an individual outlet while still being considered independent contractors. This was devastating for any number of freelancers. It was also difficult because the finances for media outlets these days are just not good (advertisers continue to migrate to social media and internet platforms), and it wasn’t as though all these freelancers could go get hired as journalists, even assuming they wanted to.
The American Society of Journalists and Authors and the National Press Photographers Association sued, arguing that these restrictions regulated their free speech and free press rights under the First Amendment and were therefore unconstitutional.
Unfortunately, the courts have not found their arguments compelling and have instead concluded that, because A.B. 5 is a wide-reaching and generally applicable law affecting businesses across the state, it is not specifically targeting journalists’ speech. Therefore, according to the courts, the First Amendment isn’t implicated here.
The latest ruling on October 6 comes from a panel of the U.S. Court of Appeals for the 9th Circuit, and all three judges are in agreement that, even though A.B. 5 has the potential to severely restrict the ability of freelance journalists to get paid for their work and the ability of media outlets to publish them, this does not rise to a First Amendment violation:
The statute is aimed at the employment relationship—a traditional sphere of state regulation. The panel further acknowledged that although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation.
It’s an interesting and troubling analysis: If a state’s oppressive regulations make it too expensive for a business to employ journalists and publish news stories through “generally applicable” rules, it’s not censorship. It’s just that lots of news stories are never written in the first place.
What’s also interesting about the ruling is that the judges justify the decision as being applicable across various industries, but the descriptions of A.B. 5 and a subsequent bill that amended which occupations and industries were exempt are notable for the complicated adjustments across various fields. Some occupations have tighter restrictions than others. The rules on freelance writers were loosened up. The story cap is gone, but now a freelance writer can’t be used as a replacement for an employee at the same work volume and can’t work out of the business itself. This is still a penalizing approach for an industry currently in bad financial shape.
A.B. 5 does not have a set of “generally applicable” rules applied across California companies and freelancers based on some overall sense of fairness, but rather the amount of influence and clout various organizations—particularly labor groups—have over the law’s crafting. It was only amended after a massive outcry over the predictable but devastating consequences of freelance contractors being unable to make a living, but also not being able to actually land jobs in their fields.
Perhaps it’s 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 highly value the right to freely associate with others how we choose. Freedom of association, recognized within the First Amendment by the Supreme Court, is not referenced in the ruling at all. What of a person’s right to decide for himself whether he wants to be an employee at all?
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