The Hill: California law unjustly and unconstitutionally restricts freelance journalists

Freelancing is a centuries-old practice. But with a controversial state law set to take effect Jan. 1, 2020, freelance journalism soon may become a thing of the past in California.

Assembly Bill No. 5 (AB5) was enacted in 2019 to create a new three-part test under California law for determining whether someone is an independent contractor or employee. The key provision of the new test is that anyone performing work within the “usual course of the hiring entity’s business” is now an employee, rather than a contractor. Therefore, even freelance journalists hired by publications to write occasional columns or infrequently take photographs at events are working in the “usual course” of a publication’s business — creating journalistic content — and will be classified as employees.

So why does it matter? The reality is that many of the companies hiring freelancers cannot afford to convert contractors into employees even if they wanted to. And more important, a substantial number of freelancers do not want to be employees — they prefer the independence and control that the freelance work model provides them. But AB5 ignores economic realities and the wishes of freelancers by imposing a one-size-fits-all employment model on the world’s fifth-largest economy. As a result, many California freelancers could find themselves out of work come 2020. Weekly columnists in San Francisco who write about cannabis and the taxi industry already have been “de-weeklied” because of the law. Residents, therefore, will get less information and oversight on their community.

Because of extensive opposition to the change that AB5 will impose on California freelancers, and as a result of frenzied lobbying on behalf of members of certain professions, AB5’s author — Assemblywoman Lorena Gonzalez — created numerous exemptions in an attempt to soften the law’s blow. But these exemptions only make matters worse.

Fundamentally, it is an inherent injustice when lawmakers enact a terrible 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 that is precisely what AB5 does.

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. A freelance journalist or photojournalist can only submit 35 or fewer submissions to a publisher each year. If a columnist writes bi-weekly or a photographer provides a client with one too many photos, they lose the freedom to freelance. Why 35, rather than 100 or 52? When questioned, Gonzalez acknowledged that 35 is “a little bit arbitrary.”

That cap isn’t the only arbitrary provision of AB5. While a photojournalist can submit up to 35 still photo assignments per publisher, per year, if that photographer submits a single video, he or she no longer can freelance for that publication. And making matters worse for photographers, employees typically don’t own the copyright to their images, whereas contractors do.

The inherent arbitrariness and injustice wrought by AB5’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. Under AB5, the only “professional services” subject to the 35-submission limit and video restriction involve certain speech (freelance writers, editors, newspaper cartoonists and photographers). By limiting writers and photographers to 35 submissions and ruling video off-limits, AB5 imposes a special tax on the content these speakers produce, in the form of employment taxes and other regulatory burdens that do not apply to other professional services involving speech. The First Amendment does not allow these types of special burdens on the press.

It is unconstitutional to subject some freelancers to more extensive regulation than others, based on the content of their speech. If you write press releases, you face no limits under AB5. But write a news story about that press release and you are subject to the 35-submission limit. If you take still photographs, you are subject to the 35-submission limit. But a single video classifies you as an employee. Freelance graphic artists can submit unlimited infographics to a newspaper, but freelance photojournalists are capped at 35 assignments each year.

These sorts of arbitrary 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 and the National Press Photographers Association, represented free of charge by Pacific Legal Foundation, have teamed up to file a federal lawsuit on behalf of their members challenging AB5’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 already are losing work because of AB5. We aim to get them back on the beat.

Caleb Trotter and Jim Manley are attorneys with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow them on Twitter @nolatarian and @ManleyLiberty.

This op-ed was originally published by The Hill on December 23, 2019.