Freelance journalists file suit alleging AB5 is unconstitutional

Organizations representing freelance journalists are mounting a legal challenge to a new California law that aims to rein in companies’ use of independent contractors by placing certain restrictions on contract work.

Under the state’s landmark labor law AB5, which goes into effect Jan. 1, news outlets can publish no more than 35 pieces per year from an individual freelance writer before that journalist must be classified as a part- or full-time employee. Some freelancers worry publishers will let them go rather than convert them to employees — a designation that guarantees some benefits and protections.

One day after Vox Media announced that it will cut hundreds of freelance writers living in California or covering California sports teams, two freelancer groups filed a lawsuit in federal court in Los Angeles alleging that AB5 unconstitutionally restricts free speech and the media. The groups — the American Society of Journalists and Authors and the National Press Photographers Association — are represented pro bono by the libertarian Pacific Legal Foundation.

“When AB5 was signed into law, our members in California were understandably upset,” said Milton C. Toby, president of the American Society of Journalists and Authors, which represents 1,100 freelance writers nationwide, including about 120 in California. “Some companies are beginning to not hire or let go of California freelancers in anticipation of the law.”

Proponents of AB5 say the law will reduce the number of workers wrongly labeled as independent contractors and thus denied benefits and protections. Assemblywoman Lorena Gonzalez (D-San Diego), who authored the law, tweeted that it’s “certainly not all bad” that Vox Media will create 20 part- or full-time positions to replace the freelancers it will cut. She also pointed out that Vox Media faces a class action lawsuit from SB Nation writers and editors who allege they were misclassified as contractors, and underpaid as a result—the type of situation AB5 aims to protect workers from.

The Los Angeles Times shifted about 30 contract workers to staff positions last year, following a far-reaching California Supreme Court decision that set a standard assuming workers are employees if their jobs are central to a company’s core business or management directs the way their work is done. AB5 codified that court decision.

Freelance writers and photographers are not the only critics of the law.

Gig-economy companies such as Uber, Lyft and DoorDash launched a campaign against the legislation, arguing that treating workers as employees would hobble them in California, one of their biggest U.S. markets, and set a precedent for other states to enact similar legislation. The companies have said they will spend tens of millions of dollars on a ballot measure opposing the law if they are not able to carve out alternative rules for drivers.

The California Trucking Association filed a lawsuit last month, arguing the new rules hurt their ability to provide trucking services, marking the first challenge to the law.

The Pacific Legal Foundation, which is representing the writers and photographers, has a history of defending employer interests, among other libertarian causes such as property rights, and has received funding from prominent conservative donors including the Scaife family.

The Pacific Legal Foundation argues that putting a cap on the number of stories a journalist can write for a single publication is unfair since similar restrictions aren’t placed on other industries, such as graphic design. “Such selective and unequal treatment among members of speaking professions violates the right to earn an honest living free from both irrational government interference and regulation based solely on the content of their speech,” a statement on the Pacific Legal Foundation website reads.

“The government cannot single out journalists,” said Jim Manley, an attorney at the Pacific Legal Foundation, in a statement.

Assemblywoman Gonzalez noted the group’s track record in a statement: “First, it was the Endangered Species Act, then women on corporate boards, and now the Pacific Legal Foundation is attacking California’s landmark workplace rights law. That should come as no surprise to anyone.”

Steve Smith, spokesperson for the California Labor Federation, which sponsored AB5, said he hopes efforts to tweak the law will result in industry-specific fixes over the next year.

“We don’t know how companies react, and what actions they take. So we want to see companies do the right thing, and hire more journalists as employees, but we also recognize some companies are not going to do that,” Smith said. “Given the situation, we want to continue the discussion.”