A lawsuit against California’s new independent contractor legislation took a step forward on March 11. U.S. District Court Judge Philip Gutierrez heard comments from both sides, and the next hearing is scheduled for March 23. That date could move based on COVID-19 updates.
Ultimately, the judge didn’t rule on the motion for preliminary injunction to halt Assembly Bill 5, and he didn’t indicate when that might happen. The next hearing at the end of March will focus on the state’s motion to dismiss the lawsuit.
The hearing “went well,” according to lead attorney Jim Manley of the Pacific Legal Foundation, which picked up the case on behalf of the American Society of Journalists and Authors and the National Press Photographers Association.
ASJA and NPPA filed a lawsuit in mid-December against AB 5, which designates whether freelancers, gig workers and independent contractors can be classified as employees under California law. Both groups are critical of one clause, in particular, that restricts writers and photographers to 35 submissions per publication or client per year, otherwise they could be classified as employees. However, other professionals such as marketing and graphic designer freelancers, don’t face a 35-submission cap.
“I hope that through the very fine work of our attorneys at the Pacific Legal Foundation, Assembly member Lorena Gonzalez and her colleagues realize that they’ve got their boots on the neck of the First Amendment and they’d better get them off right quick,” said California freelancer Vanessa McGrady.
McGrady was among the dozen freelance journalists and photojournalists who attended the hearing and sat in the gallery of the federal district court.
“The toxicity of AB5 harms almost every independent journalist, contractor and small business, and protects hardly anyone,” she told AHCJ. “There are better ways to help underpaid workers than this.”
During the hearing, Manley spoke first, arguing that AB 5 is a First Amendment case since it seeks to restrict the speech of certain content producers, particularly journalists, rather than marketers or content writers. A large portion of the hearing focused on which side of the case has the burden of proof as the lawsuit moves forward this year.
Importantly, Manley pointed out that the ASJA/NPPA lawsuit doesn’t challenge the entirety of the law. It solely focuses on the distinction between professional services that are exempt and not exempt, such as journalistic writing versus content marketing, and the restriction on press speech. Singling out the press in a law raises First Amendment concerns, he said, especially when it indicates negative or restrictive treatment.
“It was disconcerting to see the state of California argue in court that government has the right to restrict journalism and impose an outright ban on freelance journalists’ reporting tools, including video,” said JoBeth McDaniel, chair of ASJA’s First Amendment committee. McDaniel also attended the hearing.
“Freelance journalists now outnumber staff journalists, a group shrinking daily in California as smaller media outlets shut down. Even the largest media business, the Los Angeles Times, is offering buyouts to reduce its ranks,” she told AHCJ. “So we’ll have more freelancers joining our ranks, all while multimedia, including video, becomes the norm in reporting stories, not the exception.”
Stay tuned for updates on the next hearing. If you’d like to read previous stories about AB 5 and the lawsuit filed by ASJA and NPPA, please see these: