California’s Anti‐​Freelancer Law Violates the First Amendment

 In State

On January 1, 2020, California Assembly Bill 5 (AB 5) went into effect, dras­ti­cal­ly cur­tail­ing Californians’ free­dom to work on their own terms as free­lancers. The law, which was written by the AFL-CIO, presents many free­lancers in the state with only two options: find a per­ma­nent employ­er will­ing to hire you or find a new line of work. Ostensibly designed to help Uber and Lyft dri­vers, the law has dras­ti­cal­ly affect­ed mil­lions of work­ers in the state. Recently, a ballot initiative cre­at­ing an excep­tion for Uber and Lyft qual­i­fied for the November elec­tion.

The law doesn’t apply to every­one evenly, though. Among a labyrinthine mish­mash of excep­tions is one for con­tracts for “pro­fes­sion­al ser­vices.” This excep­tion applies to 11 dif­fer­ent types of ser­vices, the major­i­ty of which con­cern speech pro­tect­ed by the First Amendment. But the lim­i­ta­tions placed on the var­i­ous cat­e­gories of speech are unequal. While free­lancers may pro­vide fine art, mar­ket­ing, and graph­ic design ser­vices with­out lim­i­ta­tion, free­lance jour­nal­ism and pho­to­jour­nal­ism (news­pa­per car­toons includ­ed) are sub­ject to unique lim­i­ta­tions. Workers cannot make more than 35 sub­mis­sions per pub­lish­er per year that qual­i­fy as jour­nal­ism or pho­to­jour­nal­ism, and free­lance pho­to­jour­nal­ists may not make any video sub­mis­sions what­so­ev­er.

The American Society of Journalists and Authors (ASJA) and the National Press Photographers’ Association (NPPA) filed suit chal­leng­ing the law, and for good reason: sub­ject­ing cat­e­gories of speech such as jour­nal­ism and pho­to­jour­nal­ism to harsh­er restric­tions than ser­vices such as mar­ket­ing or fine art is not only arbi­trary and harm­ful, it’s uncon­sti­tu­tion­al.

The case is now before the Ninth Circuit where Cato, joined by the Reason Foundation and the Individual Rights Foundation, has filed a brief in sup­port of the jour­nal­ists. We argue that the trial court’s deci­sion to dis­miss the case is incon­sis­tent with the First Amendment and with the Supreme Court’s deci­sion in Reed v. Town of Gilbert.

In Reed, the Court made clear that laws restrict­ing speech on the basis of con­tent are pre­sump­tive­ly uncon­sti­tu­tion­al and must clear the high bar of strict scruti­ny review. Content-​based restric­tions are those that require exam­in­ing the con­tent of a com­mu­ni­ca­tion. A law ban­ning cer­tain song lyrics is con­tent based, but a law ban­ning play­ing music too loud is not. California wants to evade strict scruti­ny by using the com­plex­i­ty of AB 5 to its advan­tage, obfus­cat­ing the way the law works in an attempt to change a content-​based restric­tion into a “speaker-​based,” content-​neutral one. As Reed made clear, how­ev­er, “speaker-​based” restric­tions can still be con­tent based and terming a restric­tion on speech as “speaker-​based” is fre­quent­ly a cover for con­trol­ling speech based on con­tent. Such is the case here.

What dis­tin­guish­es speech cat­e­go­rized as mar­ket­ing or fine art from speech cat­e­go­rized as jour­nal­ism or pho­to­jour­nal­ism? The con­tent, of course. And when a law tar­gets speech based on con­tent, the law is unam­bigu­ous: strict scruti­ny applies. California’s argu­ment is incon­sis­tent with Reed, Reed’s appli­ca­tions in courts around the coun­try, and with its own law. We are there­fore asking the Ninth Circuit to join its sister cir­cuits in affirm­ing that Reed is the law of the land and grant jour­nal­ists their day in court.

This arti­cle by Trevor Burrus first appeared in CATO on May 26, 2020.

Image: Reuters.

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