May 22, 2020
Filed brief in the Ninth Circuit.
California’s anti-freelancing bill known as AB5 prohibits people from working as independent contractors except in narrow circumstances—which deprives people of the right to make their own economic choices and reduces the availability of services to consumers. Although touted a means of “protecting” workers, the law actually harms them by taking away their ability to decide for themselves what jobs to take and by making it more expensive and difficult for businesses to hire them.
It also violates freedom of speech. One provision of AB5 limits the numbers of articles or photographs that journalists may provide: If they submit more than 35 articles or pictures, they must be hired on as on-staff employees. But that’s an expensive and burdensome task for small news outlets, such as alt-weeklies and community newspapers, whose revenues don’t allow them to have big staffs. Instead, they rely heavily on freelance contributions. On the other hand, freelancers typically like the flexibility and opportunity that comes with being in charge of their own careers, instead of being someone else’s employee.
The 35-item quota doesn’t just violate economic freedom, it also violates free speech. That’s because the quota only counts articles or photos that “pertain” to a “topic” or “event.” That means that a poem, or an art photo that isn’t “about” something doesn’t count—an artist or a poet can submit an unlimited number of these without triggering the law’s 35-item quota. But an article about a poem, or about that photo would count.
That violates the longstanding rule that says any content-based restriction on speech, or any limitation on speech that’s based on the identity or motive of the person doing the speaking, is unconstitutional. In Reed v. Town of Gilbert, the Supreme Court made clear that the government may not impose laws that create burdens on some types of speech but not others. And that’s particularly important here, given that freelance journalism tends to express certain specific types of viewpoint: it tends to be anti-establishment, and tends to focus more on communities who aren’t as well served by the large, established media. NBC News or the Los Angeles Times can afford to hire journalists onto their staffs. But small alt-weeklies and other community news sources can’t.
We’ve filed a friend of the court brief in this case challenging the constitutionality of AB5, arguing that it violates the First Amendment and should be struck down.
Christina Sandefur is the Executive Vice President at the Goldwater Institute. She develops policies and litigates cases advancing healthcare freedom, free enterprise, private property rights, free speech, and taxpayer rights. Christina is a co-drafter of the Right to Try initiative, now federal law, which protects terminally ill patients' right to try safe investigational treatments that… Read more...
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates to promote economic liberty, private property rights, free speech, and other crucial values in states across the country. Timothy is the author of eight books, including most… Read more...
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