Judge throws out journalists’ case against AB 5

Freelance journalists, writers, and photographers will likely appeal a federal judge's decision to dismiss their complaint against Assembly Bill 5, according to their attorney, who said Monday the labor bill "treats journalists as second class freelancers" by classifying them as employees if they produce more than 35 assignments per year for a single employer.

"The government cannot single out the press for especially negative treatment, and that's exactly what AB 5 does: It puts a limit on how many articles a freelance journalist can produce," said Jim Manley, an attorney at Pacific Legal Foundation representing the plaintiffs. "Those sorts of restrictions violate the First Amendment, and we're confident on appeal those restrictions will be struck down."

U.S. District Judge Philip S. Gutierrez dismissed the complaint via one of two orders he issued Friday in American Society of Journalists and Authors v. Becerra, 19-CV10645 (C.D. Cal., filed Dec. 17, 2019). His second order rejected the plaintiffs' motion for a preliminary injunction against AB 5. The law, which took effect Jan. 1, automatically classifies California workers as employees instead of independent contractors unless they pass a three-pronged "ABC" test but makes conditional exceptions for journalists and other groups of workers.

In their complaint and motion for a preliminary injunction, plaintiffs argued AB 5 violated the Equal Protection Clause of the 14th Amendment and their First Amendment rights by imposing its 35-submission cap on journalists, but not on other groups exempted under AB 5 like graphic designers, grant writers, and individuals who work on motion pictures.

"Placing a 35-submission limit on certain professions serves the state's interest of protecting its workforce by preventing misclassification of certain professionals as independent contractors when they resemble employees, and is unrelated to the content of the expression they produce," Gutierrez wrote in his preliminary injunction order.

Earlier this year, AB 5 author Assemblywoman Lorena Gonzalez, D-San Diego, introduced AB 1850 to "further clarify the application" of the labor law. After consulting with media workers, Gonzalez said, she proposed adding an amendment to the new bill that would remove the submission cap for journalists.

Manley said this won't impact his clients' next moves. "This is just proposed legislation, so it doesn't change anything for the freelancers who are currently out of work because of AB 5," he said.

Since it went into effect, AB 5 has been challenged through several lawsuits. But Gary McLaughlin, at attorney who represents employers at Akin Gump Strauss Hauer & Feld LLP, said Gutierrez's decision on Friday is unlikely to impact pending litigation elsewhere. The plaintiffs "were making some arguments that were pretty unique to their industry and the particular exceptions in AB 5 that apply to them, especially the free speech argument," McLaughlin said Monday. "I don't think other industries could make a similar free speech argument."

He contrasted the case with another AB 5 complaint involving Uber and Postmates, Olson v. California, 19-CV10956 (C.D. Cal., filed Dec. 30, 2019). While AB 5 uses a provision to single out workers like the plaintiffs in American Society of Journalists, McLaughlin said, the law doesn't target gig economy workers in the same way.

"They're not able to go after a particular provision. ... They're really attacking the law as a whole," he said of the plaintiffs in Olson. "The types of arguments they're making, if they're successful, could have much broader applications."

Asked to comment on Friday's decision, Attorney General Xavier Becerra's office said by email, "We'll let the decisions speak for themselves."