Freelance journalists sue California over new AB 5 law

Carolyn Crist

About Carolyn Crist

Carolyn Crist (@cristcarolyn) helps AHCJ’s freelance members find the resources, tips and contacts they need to create and run a successful business. A freelance journalist and author, Crist covers health, medicine and science stories for national news outlets such as Reuters, Runner’s World and Parade. She also writes for trade and custom publications. Contact her at carolyn@healthjournalism.org.

california-flag-on-the-round-button-isolated-on-white_fyCzJLi_Two of the leading national journalism organizations that serve freelance writers, editors, photographers and visual journalists filed a lawsuit on Tuesday to challenge California’s new rules for independent contractors. Assembly Bill 5, or AB 5, takes effect on Jan. 1, so the American Society of Journalists and Authors and the National Press Photographers Association filed now to ask for an injunction.

The bill, which was drafted to curb unfair practices in the gig economy and signed into law in September, requires companies to take on contractors as employees if they meet certain requirements. With journalists in particular, writers and photographers are capped at 35 pieces of content per publication per year. Audio and video assignments aren’t included, meaning that reporters could instantly lose their ability to work independently with those media.

“We want to ensure that journalists are treated the same as other freelancers and not as second-class freelancers,” said Jim Manley of the Pacific Legal Foundation, a national nonprofit legal group acting as pro bono representative for the two journalism organizations. Manley and others from PLF, ASJA and NPPA held a news briefing on Wednesday afternoon.

The lawsuit, which was filed in federal court in Los Angeles, should be assigned to a judge in the next 24 hours, Manley said on the call. Then PLF will file a preliminary injunction to stop AB 5’s applications to journalists while the lawsuit is pending. The government faces a “heavy burden of justification” when regulations single out the press, the filing says.

“What we’re arguing is the principle that the courts have supported in the past, which is that the press can’t be singled out for especially negative treatment,” Manley added.

Other related professions, such as marketing, graphic design, grant writing and fine arts, don’t face restrictions, so the law creates selective and unequal treatment, he said.

“The scope of the injunction would lift the 35-assignment limit and the prohibition on journalists reporting with video,” Manley said. “With the limits removed, journalists would be treated as other freelancers, such as marketing professionals.”

Freelance journalists may feel “safe” because they write fewer than 35 pieces per outlet per year, don’t live in California, and don’t write for California publications, but the California bill has set a precedent for similar bills in New Jersey and New York, said JoBeth McDaniel, the chair of ASJA’s First Amendment Committee. Plus, AB 5 is supported by several presidential candidates who want to establish a similar law at the national level.

The threat of enforcement has already resulted in lost work for freelancers. On Monday, for instance, Vox Media announced it would end contracts with 200 hundred writers and editors who write for SB Nation, including non-California freelancers who cover teams in the state. The media company is creating new full-time and part-time employee positions to cover California. The changes also will affect Curbed and Eater, which are two other Vox sites.

“Reporters’ voices are going to be silenced when the impact of AB 5 hits their businesses,” NPPA deputy general counsel Alicia Calzada said during the news briefing. “Some clients have already told our members that they won’t be called anymore. For some, this alters the foundation of their business.”

The law also hinders journalists who are pivoting to digital and social media work, including podcasts, videos, films, apps and other modern forms of storytelling.

“We’re expected to be multimedia journalists today, which includes audio, video, photos and articles,” said AHCJ member Randy Dotinga, a former ASJA president who has led the charge against AB 5’s implications for journalists. “AB 5 treats those assignments differently.”

Stay tuned for updates here. For more details about AB 5, see the previous story, which includes comments from AHCJ members and California freelancers. In the meantime, ASJA leaders and PLF attorneys are available for comment. Contact Milt Toby, president of ASJA, at milt.toby@gmail.com, Randy Dotinga, AHCJ member and former president of ASJA, at randydotinga@gmail.com, or PLF at media@pacificlegal.org.

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