Lost: Supreme Court declines to review California's arbitrary, content-based regulation of freelance professionals

The ability to work as an independent contractor—or freelancer—long has 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 2019, 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 allowed myriad 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, and they are prohibited from working primarily at a client’s location. 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 videos while freelancing.

Freelancers quickly felt the sting of AB 5. Publishers began requiring freelancers who cover California to live elsewhere or took to blacklisting them altogether. And out-of-state employers were less likely to hire California-based freelancers.

For journalists stuck in the AB 5 trap, the law’s selective carveouts violated their rights to earn an honest living based solely on the content of their speech.

A 2019 lawsuit filed by the American Society of Journalists and Authors and the National Press Photographers Association challenged AB 5’s unlawful carveouts that restrict their members’ professional speech and prevent them from making a living as freelancers.

These organizations were not deterred from seeking vindication of their members’ rights, not even after legislative tweaks got rid of the 35-count submission requirement and granted exemptions for a few more professional categories. Journalists still faced restrictions on their ability to freelance, based only on the content of their speech.

Lower courts ultimately dismissed the case, and in June 2022, the Supreme Court declined the organizations’ request to review the lower courts’ rulings—a loss for thousands of freelancers who have built thriving careers through the freedom and flexibility that independent contracting provides.

What’s At Stake?

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

Case Timeline

February 22, 2022
Petition for Writ of Certiorari
United States Supreme Court
October 06, 2021
United States Court of Appeals for the Ninth Circuit
December 01, 2020
Amicus Brief of Liberty Justice Center in Support of Appellants
United States Court of Appeals for the Ninth Circuit
December 01, 2020
Amicus Brief of The Independent Institute in Support of Appellants
United States Court of Appeals for the Ninth Circuit
December 20, 2019
Memo in Support of Motion for Preliminary Injunction
United States District Court for the Central District of California
December 17, 2019
United States District Court for the Central District of California