9th Circuit Rejects First Amendment Challenge to California’s AB5

PASADENA, Calif. — A panel of Ninth Circuit appeal judges rejected yesterday a First Amendment and Equal Protection challenge to California labor law AB5, which establishes a narrower exception allowing businesses to classify writers, photographers and video content producers as freelancers and not employees.

The panel’s decision “affirmed the district court’s dismissal of a suit brought by the American Society of Journalists and Authors and the National Press Photographers Association challenging, on First Amendment and Equal Protection grounds, California’s Assembly Bill 5 and its subsequent amendments.”

Previously, employers could use the so-called “ABC test,” set forth in the Dynamex case, to ascertain whether a worker should be classified as employee or independent contractors.

Since “AB5 and its subsequent amendments, now codified at section 2778 of the California Labor Code, provides for certain occupational exemptions,” as the judges wrote, the American Society of Journalists and Authors and the National Press Photographers Association tried to challenge it in court “because freelance writers, photographers and others received a narrower exemption than was offered to certain other professionals.”

The professional organizations argued that AB5 “effectuates content-based preferences for certain kinds of speech, burdens journalism and burdens the right to film matters of public interest.”

The Ninth Circuit judges held that AB5 does not regulate speech but economic activity and “does not, on its face, limit what someone can or cannot communicate[,] nor does it restrict when, where, or how someone can speak.”

The panel did acknowledge that the ABC classification “may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers.”

AB5 Decision

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