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A three-judge Ninth Circuit panel affirmed a federal court dismissal of a lawsuit filed by the American Society of Journalists and Authors and the National Press Photographers Association challenging the State’s passage of Assembly Bill 5 and its various amendments.

The American Society of Journalists and Authors and the National Press Photographers Association filed a federal lawsuit challenging, on First Amendment and Equal Protection grounds, California’s Assembly Bill 5 and its subsequent amendments, which codified the more expansive ABC test previously set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1 (Cal. 2018), for ascertaining whether workers are classified as employees or independent contractors.

AB5 and its subsequent amendments, now codified at section 2778 of the California Labor Code, provides for certain occupational exemptions.

Because freelance writers, photographers and others received a narrower exemption than was offered to certain other professionals, plaintiffs sued, asserting that AB5 effectuates content-based preferences for certain kinds of speech, burdens journalism and burdens the right to film matters of public interest.

The panel in the published case of ASJA v Bonta held that section 2778 regulates economic activity rather than speech. It does not, on its face, limit what someone can or cannot communicate. Nor does it restrict when, where, or how someone can speak.

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.

The panel rejected plaintiffs’ assertion that the law singled out the press as an institution and was not generally applicable.

Addressing the Equal Protection challenge, the panel held that the legislature’s occupational distinctions were rationally related to a legitimate state purpose.

Amicus briefs were filed in this case by Cato Institute, Reason Foundation, Individual Rights Foundation, Goldwater Institute, Independent Institute and Liberty Justice Center.