New law unconstitutionally restricts freelance journalists

One-size-fits-all solutions never fit anyone very well. That is especially true when it comes to picking a career. California is finding that out the hard way.

After Assembly Bill 5 placed strict, arbitrary limits on independent contracting, many freelancers have found their chosen career no longer fits the only size the government will allow. Weekly columnists in San Francisco who write about cannabis and the taxi industry have already been “de-weeklied” due to the law. The Tahoe Music Festival has called it quits after more than 40 years of classical music. The Island City Opera postponed its 2020 season indefinitely.

AB 5 took effect on Jan. 1, 2020, and imposes a new three-part test under California law for determining whether someone is an independent contractor or employee. The key provision of the new “ABC” test is that anyone performing work within the “usual course of the hiring entity’s business” can’t be a contractor. Therefore, even freelance journalists contracted to write occasional columns or take photographs at infrequent events are working in the “usual course” of a publication’s business — ceating journalistic content — and will be classified as employees rather than contractors. The same goes for session musicians, stand-up comedians, opera singers, translators, and many other freelancers whose work falls within the “usual course of the hiring entity’s business.”

But freelancers with convincing lobbyists got a reprieve. Fundamentally, it is an inherent injustice when lawmakers enact a terribly burdensome law that exempts the law’s loudest critics from its full effects while subjecting the politically powerless, unpopular, or unlucky to the full force of the law. Yet AB 5’s author created numerous exemptions in an attempt to soften the law’s blow for a select few. These exemptions only make matters worse.

For example, individuals performing certain “professional services” are exempt from the new three-part test. These professions include marketers, graphic designers, grant writers, and fine artists. Journalists and photojournalists weren’t so lucky. AB 5 limits freelance journalists and photojournalists to only 35 or fewer submissions to a publisher each year. If a columnist writes weekly or a photographer provides their client with one too many submissions, they lose the freedom to freelance. Why 35, rather than 100 or 52? When questioned, AB 5’s author admitted that 35 is “a little bit arbitrary,” and she has now introduced legislation to eliminate the 35-submission limit.

But the cap isn’t the only arbitrary provision within AB 5. While a photojournalist can submit up to 35 still photo assignments per publisher, per year, as soon as that same photographer submits a single video, he or she can no longer freelance for that publication.

The inherent arbitrariness and injustice wrought by AB 5’s singling out of freelance writers and photojournalists make the law unconstitutional.

U.S. Supreme Court precedent makes clear that the government cannot single out freelance writers and photographers for especially unfavorable treatment. In Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983), the court struck down a Minnesota tax on paper and ink because it “singled out the press for special treatment,” burdening First Amendment rights without demonstrating that the differential treatment was necessary to achieve an overriding governmental interest. The Minnesota law unconstitutionally discriminated against the press, even though there was “no indication, apart from the structure of the tax itself, of any impermissible or censorial motive on the part of the legislature.” Singling out the press is enough to draw a law into First Amendment scrutiny.

Similarly, in Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987), the Supreme Court struck down a sales tax on periodicals that exempted “newspapers, [and] religious, professional, trade, or sports periodical[s]” after it was challenged by a publication that did not fall within any of those exemptions. The court held that “official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment[].” As in Minneapolis Star & Tribune, the court found no “improper censorial motive,” but struck down the arbitrary tax exemptions “because selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by the State.”

Like the unconstitutionally narrow tax exemption struck down in Arkansas Writers’ Project, AB 5’s professional services exemption is triggered by the publication of ideas and denies the freedom to freelance based entirely on the content of a freelancer’s expression. As in Arkansas Writers’ Project, the only way to know if AB 5’s professional services exemption applies is through “official scrutiny of the content of publications.” The ability to freelance rises or falls based on whether expression is deemed marketing or editorial, graphic design or photography, grant writing or news reporting — the only way to know if the “professional services” exemption applies, and to what extent, is to analyze the content of the expression.

These sorts of content-based distinctions are unconstitutional under the First Amendment, as well as the Fourteenth Amendment’s Equal Protection Clause, which protects against the arbitrary and irrational treatment of professionals seeking to earn a living.

That’s why the American Society of Journalists and Authors (ASJA) and the National Press Photographers Association (NPPA), represented free of charge by Pacific Legal Foundation, have teamed up to file a federal lawsuit on behalf of their members challenging AB 5’s assault on freelance journalists and photojournalists in California. ASJA and NPPA are two of the country’s largest organizations representing non-fiction writers and visual journalists. Their members are already losing work due to AB 5. We aim to get them back on the beat. 