ASJA and NPPA considering an appeal after federal district court dismisses their AB5 lawsuit and denies their request for an injunction.
The American Society of Journalists and Authors and the National Press Photographers Association are considering their appeal options after a Los Angeles District Court judge delivered two surprising orders in their case challenging the application of AB5 against journalists in California.
In two separate rulings on Friday March 20, 2020, Judge Philip Gutierrez denied the journalists’ preliminary motion to enjoin the restrictive limits that California’s AB5 places on freelance journalism and dismissed the case in its entirety.
According to an on the ASJA website in December 2019, Assembly Bill 5 (AB5), which took effect January 1, is full of unfair exemptions and carveouts that disfavor freelance journalists compared to other professions that engage in speech. Journalists are capped at 35 pieces of content per year, and if they exceed that, they must become employees. Journalists who record video instantly lose their ability to work independently. Marketers, grant writers, and graphic designers face no such limit.
“Under the law, a freelancer like me can write 200-plus press releases in a year for a marketing firm, and it’s no problem. But if a newspaper wants me to write a weekly column about local politics, it must put me on staff — a very unlikely prospect — or violate the law. Otherwise I am silenced,” said San Diego freelance writer Randy Dotinga, a board member and former president of ASJA.
In its denial on March 20, the court wrote that “AB 5 does not directly regulate or prohibit speech, but regulates the employment relationship.” Jim Manley, attorney for the plaintiffs said on Friday that “The decision fundamentally misapplies U.S. Supreme Court decisions that prevent the government from singling out the press for negative treatment.” Manley added, “In a long list of speaking professions exempted from AB 5’s onerous independent contracting requirements, only journalists have a cap on their work and only photojournalists are prohibited from communicating with video. This is a clear example of the government putting limits on the free press.”
NPPA Executive Director Akili Ramsess said “We are extremely disappointed in the court’s decision. The financial devastation that our California members have experienced in the wake of AB5 has been compounded exponentially by the economic strife surrounding the COVID-19 crisis.” “This is a continued obstacle for freelance visual journalists,” she added. Many of NPPA’s members who are self-employed visual journalists have lost the vast majority of their business in the past couple of weeks, from coverage sporting events and cultural events to general assignments that simply aren’t advisable in an era of “social distancing.”
Despite the critical role that journalists are playing in keeping the nation informed about the COVID-19 pandemic and the economic and societal turmoil facing the country, journalists themselves are taking an enormous financial hit. Local news organizations have lost significant advertising revenue connected to major events and businesses that have shuttered. The damage to the tourism and export-import business in California is expected to have a ripple effect in the already struggling media economy. Many video production companies had already shuttered their doors as a result of AB5 outlawing self-employed videography.
“We share the disappointment and frustration felt by our NPPA colleagues with these decisions,” added ASJA President Milton C. Toby. “The court has, for all practical purposes, invalidated the way that freelance journalists and photojournalists have chosen to earn a living.” In the face of AB5 and now the added blow of the Coronavirus pandemic, the media landscape in California appears on the verge of collapse. “The combination of unconstitutional restrictions on independent journalists and photojournalists and shrinking opportunities for staffers means that thousands of freelancers are facing the loss of established careers and financial ruin.”
In an email message from ASJA President Toby, he said: “We thank Jim Manley and Caleb Trotter, our attorneys from the Pacific Legal Foundation, for their work on our behalf as we challenged the constitutionality of AB5’s restriction on freelance journalists. A decision regarding an appeal to the 9th Circuit Court of Appeals is forthcoming.”