American Society of Journalists and Authors v. Becerra

California’s freelancer law destroys journalists’ freedom, autonomy

Cases > Freedom of Speech and Association > American Society of Journalists and Authors v. Becerra
Active: Federal lawsuit filed to defend independent contractors’ right to earn a living

In an effort to regulate the employment status of independent contractors, California passed a law forcing companies in the state to reclassify most freelancers as employees. Under AB 5, freelance journalists and photographers must cap their submissions at 35 per year, per publisher. Anything greater, and they become employees, losing their professional freedom and autonomy. Or if journalists take a single video, they instantly lose the freedom to freelance. Other professions, like marketing and graphic design, face no such restrictions on freelancing. Such selective and unequal treatment among members of speaking professions violates the right to earn an honest living free from both irrational government interference and regulation based solely on the content of their speech.

The ability to work as an independent contractor—or freelancer—has long afforded people in wide-ranging professions the ability to earn a living on their own terms. Whether they’re juggling families, seeking variety, or desiring control, freelancers can choose their own workload, hours, wages, and clients as fit their needs. Such professional freedom has been exceptionally beneficial for journalists and photographers amid an evolving media landscape of consolidations, cost-cutting, and pressure to produce content.

A new law in California, however, makes the Golden State the toughest place for freelance journalists to work.

Signed into law in September 2018, Assembly Bill 5, or AB 5, forces companies to reclassify California-based independent contractors as employees. That is, instead of calling their own shots, freelancers become employees who are subject to employment taxes, employer rules, and workplace regulations.

The law was intended to target ride-sharing companies whose drivers operate as independent contractors. Under pressure from lobbyists, the law allows a myriad of carveouts for freelance marketers, graphic designers, travel agents, accountants, and grant writers. But photographers, photojournalists, news writers, editors, and newspaper cartoonists face onerous restrictions: they must cap their submissions at 35 per year, per publisher. Anything more forces companies to reclassify them as employees, and incur costs such as disability insurance, workers comp, and unemployment taxes. And only photographers and journalists are forbidden from taking video while freelancing.

Freelancers are already feeling the sting of AB 5. Publishers have begun requiring freelancers who cover California to live elsewhere or blacklisting them altogether. And out-of-state employers will likely pass on California-based freelancers.

For journalists stuck in the 35-submission trap, the law’s selective carveouts violate their rights to earn an honest living free from irrational government interference and regulation based solely on the content of their speech.

The American Society of Journalists and Authors and the National Press Photographers Association, leading voices for journalists hurt by this law, are fighting for their right to earn a living. Represented free of charge by PLF, they are challenging AB 5’s unlawful carveouts that restrict their members’ professional speech and prevent them from making a living as freelancers.

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What’s at stake?

  • Independent contracting allows workers freedom and control of how and when they work. Not everyone wants to fit into burdensome and costly employee arrangements.
  • Government cannot make arbitrary distinctions among professions based on the content of their speech. It cannot single out journalists for especially unfavorable treatment compared to similar professions that deal in the business of speech.

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