Labor

Federal Court Upholds California's Oppressive Restrictions on Freelance Writers

A panel has unanimously determined the First Amendment isn’t violated if state regulations keep independent writers from landing work.

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A federal court panel has unanimously ruled that it's not a violation of freelance journalists' First Amendment rights for the state of California to restrict their ability to work and be published as independent contractors.

We're talking about Assembly Bill (A.B.) 5, the now-infamous 2019 labor law that puts very tight controls on who may be classified as an independent contractor and who is considered an employee. The law formalized a 2018 California Supreme Court ruling, Dynamex Operations West Inc. v. Superior Court of Los Angeles. That decision dictates that workers are employees unless they pass something known as an "ABC test," which hinges on whether a workplace actually has control over a worker's tasks and whether he does the work associated with that business entity. If he does, the state considers him an employee, not a freelancer.

To be clear, whether a freelancer wants to be treated as an independent contractor does not factor into this test at all. Even though these rules can have a dramatic and negative impact on someone's ability to earn a living, he doesn't get a say. That is partly the point. A.B. 5 is intended to make it hard, if not impossible, for California businesses to work with freelancers and instead force them to rely on employees with fixed wages and additional benefits.

The bill was very destructive for freelancers in all lines of work. It was specifically designed to try to drive out Uber and Lyft on behalf of the heavily unionized taxi cartel (and California voters decided in November to exempt these drivers, though a judge has since overruled the ballot initiative).

For freelance journalists, A.B. 5 initially put a cap on the number of stories they could get published by an individual outlet while still being considered independent contractors. This was devastating for any number of freelancers. It was also difficult because the finances for media outlets these days are just not good (advertisers continue to migrate to social media and internet platforms), and it wasn't as though all these freelancers could go get hired as journalists, even assuming they wanted to.

The American Society of Journalists and Authors and the National Press Photographers Association sued, arguing that these restrictions regulated their free speech and free press rights under the First Amendment and were therefore unconstitutional.

Unfortunately, the courts have not found their arguments compelling and have instead concluded that, because A.B. 5 is a wide-reaching and generally applicable law affecting businesses across the state, it is not specifically targeting journalists' speech. Therefore, according to the courts, the First Amendment isn't implicated here.

The latest ruling on October 6 comes from a panel of the U.S. Court of Appeals for the 9th Circuit, and all three judges are in agreement that, even though A.B. 5 has the potential to severely restrict the ability of freelance journalists to get paid for their work and the ability of media outlets to publish them, this does not rise to a First Amendment violation:

The statute is aimed at the employment relationship—a traditional sphere of state regulation. The panel further acknowledged that although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation.

It's an interesting and troubling analysis: If a state's oppressive regulations make it too expensive for a business to employ journalists and publish news stories through "generally applicable" rules, it's not censorship. It's just that lots of news stories are never written in the first place.

What's also interesting about the ruling is that the judges justify the decision as being applicable across various industries, but the descriptions of A.B. 5 and a subsequent bill that amended which occupations and industries were exempt are notable for the complicated adjustments across various fields. Some occupations have tighter restrictions than others. The rules on freelance writers were loosened up. The story cap is gone, but now a freelance writer can't be used as a replacement for an employee at the same work volume and can't work out of the business itself. This is still a penalizing approach for an industry currently in bad financial shape.

A.B. 5 does not have a set of "generally applicable" rules applied across California companies and freelancers based on some overall sense of fairness, but rather the amount of influence and clout various organizations—particularly labor groups—have over the law's crafting. It was only amended after a massive outcry over the predictable but devastating consequences of freelance contractors being unable to make a living, but also not being able to actually land jobs in their fields.

Perhaps it's true that the destructive nature of the law is not a First Amendment concern, but it is most certainly a deep concern for those of us who highly value the right to freely associate with others how we choose. Freedom of association, recognized within the First Amendment by the Supreme Court, is not referenced in the ruling at all. What of a person's right to decide for himself whether he wants to be an employee at all?

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  1. General rule: If a law has ANY exemptions, it does not address a compelling state interest.
    Specific comment: All the freelancers have to do is move out of California.

    1. Even out of state freelancers can’t work for CA-based media outlets. So the newspapers and magazines would have to move out of California too

      1. Something something interstate commerce.

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        2. It technically wouldn’t be an issue of interstate commerce since the law is only putting the restrictions on the employers, so if the employer is in the state they’re prohibited from hiring anyone on a freelance basis for more than a certain amount of product.

          The law doesn’t prohibit employees from seeking freelance employment (a CA based journo could freelance as much as they like for out-of-state based outlets), it just makes it difficult for opportunities to get that kind of work within the state to exist.

          That in turn raises the question of why any freelance worker whose clients aren’t in CA would choose to stay here and pay the high cost of living (not to mention taxes) in the area, unless their beat is homelessness, wildfires, or counter-productive government “solutions” to largely government created problems.

      2. They should.

        Which brings me back to my point about all these reason cucks living in NYC or Cali. NO ONE GIVES A FUCK ABOUT THE LIBERAL SHITHOLE CITIES YOU WRITERS LIVE IN. There’s a million more important things to focus on than the dumb fucking minutia of California and New York. We know theyre both basically fascist bastions with crushing taxes, regulations, and restrictions. And they both have massively failed their poor people and minorities.

        They fucking suck. We know. That’s why most of us don’t live in those places and why most of us bitch when the places we live have liberal trash from Cali or New York move into our neighborhoods.

        Write about something more important you stupid fucks. Maybe just get a big wheel of fortune wheel, write all 50 state names on the sections, and spin! Whichever state it lands on is where your next article comes from. The fascist democrats are fucking up enough of this country I’m sure it’s not hard to find a libertarian angle somewhere outside new York or Cali.

        You could start with all the secretaries of state that violated their own state, as well as the federal, constitutions, and illegally changed mail in voting laws in many states, which usually included removing all requirements for secure chain of custody and identification like removing signature verification, address verification, postmark date verification, etc.

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  3. The American Society of Journalists and Authors and the National Press Photographers Association sued, arguing that these restrictions regulated their free speech and free press rights under the First Amendment and were therefore unconstitutional.

    Unfortunately, the courts have not found their arguments compelling and have instead concluded that, because A.B. 5 is a wide-reaching and generally applicable law affecting businesses across the state, it is not specifically targeting journalists’ speech. Therefore, according to the courts, the First Amendment isn’t implicated here.

    Seems to me that the right to speak freely does not confer a right to be paid to speak freely. Journalists can self-publish all they want on their own blogs, for example.

    1. Notwithstanding that A.B. 5 is a shit law and should be fully repealed with prejudice, of course.

      1. While that is true, fuck these assholes.

        They were fully onboard when they were selling this as a way to stick it to rideshare companies so it’s just that they have the laws they championed applied to them.

        1. The only thing liberals are good at is lacking self awareness.

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    2. But you don’t understand. We’re not talking about some filthy peasants doing menial work to afford his big mac or whatever it is those people do with their coppers, this is affecting Journalists. You know, those people that actually matter and were bequeathed a blue checkmark to prove it.

    3. The First Amendment also protects freedom of the press, not just freedom of speech. (and the right to peaceably assemble, and petition the government for a redress of grievances, people tend to forget those parts of it.)

      1. A.B. 5 doesn’t infringe upon the freedom of the press. Authors remain free to self-publish anything they want, as much as they want.

        1. Next year, they’ll be looking into the exploitative nature of self-publishing, and require those looking to engage in such activities to join a newly formed local of SEIU.

      2. If the company cannot pay the required rate then it isn’t a good company or industry to begin with and should not be in operation. /prog in every other situation.

        1. Doesn’t that depend on whether the “required rate” is being set by a free labor market (where those with the necessary skills to make the product set the rate), or by a government fiat (where career ideologues who likely don’t understand the nature of the product in question set the rate)?

          By all appearances, Subway and Chipotle are businesses doing a passable job in an industry that meets a need that a lot of consumers have. If the gov’t in CA decided tomorrow that stacking cold cuts or scooping guacamole was work for which $55/hr (a wage at which a 40-hour/week employee will be just above the poverty line in SF), neither of those companies would be able to continue to operate in the state, and all of their current employees would be looking at some amount of time in which their earned income will be $0/week and millions of residents would have to alter their plans for lunch.

    4. Seems to me that the right to speak freely does not confer a right to be paid to speak freely.

      The Supreme Court has recognized the critical role of money in the exercise of free speech. Your free speech rights are vastly constrained if you can’t do things like A) pay to take out aids, B) pay employees or contractors to handle publicity, C) get paid for journalism. A government that could outlaw all these things could vastly reduce the reach and influence of speech it did not like.

      1. The Citizens United decision does not apply here. The necessity of people and groups to pay others to create and broadcast political advertisements is not at all germaine to the idea that someone who isn’t being paid for their speech is having their right to speak at all infringed upon.

      2. But they’ve ruled that convicts who write books about their crimes aren’t entitled to the proceeds of their sale.

  4. It’s not mentioned here, but it’s worth bringing up that when the ‘leaders’ determined the ‘cap’ for stories, they 100% pulled it out of their ass. They figured that a ‘full-time’ reporter would write 1 article a week, so they cut that a little and decreed that 35 articles was the limit.

    Now it’s important to understand that long-form journalism is nearly dead. Articles now are typically 3-4 paragraphs and might take 2 hours to bang out. Since these writers are limited to just over 1 article EVERY TWO WEEKS, we’re talking about ONE HOUR A WEEK being considered an ’employee’ now.

    And, as always, the government doesn’t give a shit if people want to be employees or not. They just know that independent people are much harder to control.

    1. I would wager even a full time long-form journalist writes more than 1 article a week. An investigative journalist might average 1 a week due to the time it takes to break a story, but they are hardly representative of all journalists

      1. My impression of the Hero Reporter (which I got from TeeVee) is that it takes months to write an article while he flits about in cafes and parking garages, meeting with sources and figuring shit out on a white board, and then drinks with the younger crew members in the evening.

      2. My wife is an award-winning newspaper journalist working for a weekly local newspaper. She writes at least five long features a week, a dozen or so short articles, and cutlines for half-a-dozen photos.
        I work as contract, about half time, and write two features a week and half-a-dozen shorts, not including photo cutlines.

      3. When is the last time you saw an actual “investigative” story in a smaller paper?

    2. Articles now are 3 to 4 Twitter screen shots and a few sentences introducing them.

    3. If less crap gets written by journalists it’s a good thing.

    4. But nothing’s stopping them from syndicating their own product and selling it. I don’t see the restrictions on freelancing as being limiting at all to writers, cartoonists, etc.

  5. If they want an exemption, they should become a dues paying member of the International Freelancers Union.

    1. You must pay your dues to I FU.

  6. The American Society of Journalists and Authors and the National Press Photographers Association sued, arguing that these restrictions regulated their free speech and free press rights under the First Amendment and were therefore unconstitutional.

    As I remember, Vox or one of their ilk was cheerleading AB5, rooting to show those damned capitalists a thing or two; and as soon as it passed, a whole lot of heir “journalists” found themselves unemployed. I don’t know where the American Society of Journalists and Authors and the National Press Photographers Association stood on these matters, or their members, but if they are anything representative of the sorry state of “journalism” these days, they got what they wanted, good and hard.

    1. IIRC they severed ties with over 250 freelance writers and replaced them with about 20 full and part-time positions

      1. Yup.

        Then they banned people who told them to #LearnToCode.

    2. Yeah, Vox owns all the SB Nation local sports sites. Amateurs get (some semi pros) to write pieces on local teams, often SABRE metric on baseball sites and it was going to really kill their buzz.I think the Seattle Mariner one didn’t pay much and maybe had 1 salaried employee with volunteers writing stories for a modest stipend and the chance to get their work out there. Some people actually snagged jobs at Fangraphs and legend has it a couple statheads got lower level front office jobs in analytics . Vox is just juice box journalism but this bill was going to fuck it all up. Hadn’t heard they lightened it up for them, I ignore California, it’s a fantastic place to be if it didn’t have abject morons in charge.

  7. how are state lines a thing regulating employment anymore?

  8. Fuck Lorena Gonzalez

  9. “The latest ruling on October 6 comes from a panel of the U.S. Court of Appeals for the 9th Circuit…”

    Well, duh.
    “Stupid is as Stupid does.”

    1. Yes. The Supremes need to get this case. It will turn out differently.

  10. It’s a pretty awful law but using the First Amendment as the basis to overturn it was always a long-shot. As expected, it failed. The right answer is to go back to the same people who passed this abomination and get them to repeal it.

    1. That’s a good plan, as soon as you can cough up the kind of campaign donations the unions do.

  11. I don’t suppose the CA legislature can get off their collective asses and repeal the damned law. Nah….too easy.

    1. They could do it at any moment if they wanted to.

      Problem is, they continue to see it as an exemplar of wise governance. In their minds (or at least in the minds of their ardent supporters based on what they express publicly), the only reason that “progressive” policies have ever failed to produce their “intended” outcome is because the people who run for-profit businesses are just too greedy to deliberately operate at a loss in perpetuity.

  12. Nobody gives one fuck about “writers”. They voted for this

    1. The problem is that it’s not just journalism writers who are getting hit with this. Lots of people do all kinds of writing on as side work, and this basically forced companies to stop using people from California.

  13. This sort of thing is why SCOTUS needs to create a narrow and strict definition of what qualifies as a “generally applicable” law.

  14. Well, California has the lockdowns, attacks on small businesses, attacks on independent contractors, the de-education of children (“It’s OK that our babies may not have learned all their times tables,” Myart-Cruz says. “They learned resilience. They learned survival. They learned critical-thinking skills. They know the difference between a riot and a protest. They know the words insurrection and coup.”), lack of environmental management (BLM estimates 127 million trees are dead or dying and need to be culled), shut down the nuclear plants and now burning coal for energy during down times for solar and wind, the highest poverty and homeless rates in the country, all while the elites go about their business and not complying with their own mandates.

    Unless they change the legislature and State government, businesses and the populace are getting exactly what they deserve (voted for).

  15. I think it’s good that CA is keeping their writers in check. CA doesn’t need weird maverick thinkers and other disruptive misfits. CA needs order. CA needs unity. I wish them all the success one can have in achieving these goals by passing laws in the future that will ensure even equaler treatment of everyone and everything. They are about to become one. I think I should move there.

  16. When I saw the headline, I thought “9th Circuit”, and damned if I wasn’t right.

    1. Won’t someone rid me of this meddlesome Circuit?

  17. Nothing is stopping them from writing for free, or publishing the stories on their own

    Unless of course those happen to not be woke enough and get cancelled by Big Tech. But hey, that sort of censorship is fine according to Reason

  18. I can’t help but laugh at all the “independent” leftist journalists who are sobbing now after for years complaining about how the rich don’t pay enough taxes and the government needs more money to fix things like inequality and climate change. You voted for these assholes-enjoy!

  19. New York local courts won’t grant a motion to appear telephonically, so out-of-state translators were unable to take deadbeat agencies to court without a lawyer. The solution? Cash at the steps. This worked so well I now charge in advance or with a fat retainer on all out-of-state orders. Bids are even cheaper since collection is no longer an issue.

  20. The statute is aimed at the employment relationship—a traditional sphere of state regulation.

    You know what else are traditional spheres of state regulation in the US? Eugenics, slavery, segregation, and forced sterilizations.

    But, then, California is trying to bring those back as well.

  21. a deep concern for those of us who highly value the right to freely associate with others how we choose

    Just bake the damn cake already dammit. We’ll tell you who to associate with.

  22. >What of a person’s right to decide for himself whether he wants to be an employee at all?

    Most people are too stupid to know if they want to be an employee or not. It’s important for the government to tell them what they want to be.

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