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An Oxnard, California, political action committee and a Florida provider of canvassing services went before the Ninth Circuit Court of Appeals to argue that AB5, a California law that qualifies “doorknockers” and signature gatherers as employees rather than independent contractors violates their free speech rights.

Mobilize the Message and Starr Coalition for Moving Oxnard Forward filed a civil complain in federal court in Los Angeles last June. They alleged that Assembly Bill 5 violates the First Amendment right of free speech. AB 5 codifies the so-called “ABC Test” articulated in the 2018 Supreme Court Dynamex decision. The test consists of a three-pronged inquiry that determines whether a worker is classified as an employee or an independent contractor for certain purposes.

The plaintiffs argue that AB 5 favors commercial speech over political speech because it exempts certain commercial workers from being classified as employees, while classifying signature gatherers and doorknockers for political campaigns as employees. The Court denied a Motion for Preliminary Injunction on August 09, 2021.

In denying the bid for a preliminary injunction, Judge Phillips said they were unlikely to succeed on the merits of their lawsuit. The distinction between how the law treats a cosmetics salesperson and a campaign signature gatherers was based on the worker’s occupation..

Plaintiffs’ argument that the content of what a worker says will determine whether an AB 5 exemption applies in this context lacks merit,” Phillips said. “The more sensible interpretation is that the distinctions hinge on the worker’s industry regardless of speech.”

The judge was also unconvinced by the harm claimed by Mobilized the Message of not being able to operate in California because of the state law, noting the company waited almost two years after the law was passed to sue.

Plaintiffs appealed the denial to the Ninth Circuit Court of Appeals on August 10, 2021. They say in the commentary on their website that “the passage of AB 5, which effectively bars campaigns from hiring canvassers as independent contractors, has forced the plaintiffs to cease their longstanding practice of hiring contractors to collect signatures for ballot petitions and engage California voters in discussion. The costs of hiring canvassers as employees, as required by California’s new law, makes them unaffordable to many campaigns.

The state has provided exemptions, however, allowing the hiring of independent contractors for virtually identical work in newspaper delivery and direct sales. The only distinguishing feature between these workers and those hired by the plaintiffs is the content of the speech they are paid to promote. Content-based regulations of speech are presumptively unconstitutional under the First Amendment. Moreover, the government cannot give preferential treatment to commercial speech over political or campaign speech.”

Oral argument was heard on the appeal on February 2nd in San Francisco. According to the report by Courthouse News, U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, expressed some sympathy with Mobilize the Message. Whereas the newspaper industry and the direct sales lobby may have been successful in getting exemptions from the California Legislature for their workers, it was unlikely that advocates of direct democracy would have been able to get such an exemption because, according to the judge, they are the biggest enemy of the Legislature.

“There’s no way they’re going to get an exemption,” VanDyke said.

U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, expressed skepticism that the distinction between commercial door-to-door salespeople and political canvassers under the law had to do with the nature of their speech. “It seems to me that it’s not about the content of your speech,” Hurwitz said to Mobilize the Message’s attorney Alan Gura. “It’s about the way you conduct your business.”

Mobilize the Message said it hires doorknockers and signature gatherers on an independent contractor basis and doesn’t pay hourly wages. Rather, doorknockers get paid for reaching milestones, according to the company. They can set their own hours, breaks and schedules, as long as they work during the times of day when people are most likely at home.

U.S. District Judge Joan Ericksen, sitting by designation from the District of Minnesota, rounded out the panel. The judges did not indicate how or when they would rule.