Athens, GA. - On Tuesday, the National Press Photographers Association (NPPA) filed a Petition for Certiorari with the Supreme Court of the United States asking it to review our AB5 lawsuit. The NPPA is a co-plaintiff/petitioner with the America Society of Journalists and Authors (ASJA).
In 2019, California enacted a new labor law — Assembly Bill 5 (AB5) — that required clients and employers to make freelance journalists employees by default in many situations. At the time, it also imposed a 35-assignment per year limit on freelance journalists. The NPPA and ASJA filed a lawsuit challenging the law on First Amendment grounds that journalists were being treated differently under the law than other speakers such as marketers and fine artists, based on the type of work they were producing, the content of the work, the purpose of that work, and the identity of the speaker. Video journalists were also significantly restricted in their freelance work in California.
“Threats to journalists come in many forms and placing discriminatory economic pressure on journalists violates the First Amendment just as much as a direct ban on speech, which is why this case is so important to NPPA,” said NPPA Deputy General Counsel Alicia Wagner Calzada, who held several workshops and webinars with California freelancers to help them understand and navigate AB5.
After the lawsuit was filed, California amended its law in 2020 to remove some of the provisions, including the 35-assignment limit, but many restrictions on freelance photojournalism, particularly videography, remain and the law continues to treat journalists in a way that requires a writer or photographer to become an employee based on who the speaker is, and the message they are expressing. When a freelancer has multiple clients that are all required to make journalists their respective employees (or not be able to publish them), they do not qualify for the benefits of employment, and lose the ability to deduct expenses that can be claimed by independent contractors; they also transfer the copyright to such employers by default.
At its core AB5 (now AB2257) states that a contractor is an employee rather than an independent contractor unless that person is:
- Free from the control and direction of the hiring entity in connection with the performance of the work, (both under the contract for the performance of the work and in fact);
- Performing work that is outside the usual course of the hiring entity’s business, and
- Engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
This is often referred to as the “ABC Test” under which all three factors must be met for eligibility as an independent contractor status to be satisfied. Freelance journalists are typically considered employees under the ABC test because of the second factor. The law then has a byzantine list of exceptions, some of which are easy to understand and some of which literally contradict themselves.
At its core, the lawsuit alleges a violation of the First Amendment because the law treats journalists differently based on what they are saying and who they are. Those economic consequences chill journalists’ speech. A number of NPPA members in California lost assignments or clients after AB5 was enacted. Those photojournalists chose freelancing for a variety of reasons including: flexibility to meet family obligations, extra income from freelancing during retirement, and finding that it is more lucrative or stable than a staff job, especially for those who specialize.
In 2020, our lawsuit was dismissed by a federal judge in California. We appealed to the Ninth Circuit Court of Appeals, which affirmed the dismissal. “Unfortunately, we believe that the trial court and the Ninth Circuit failed to correctly apply the law to our case and as with many other appeals, we are hopeful that the Supreme Court agrees to hear this matter and takes that opportunity to rectify this injustice,” said NPPA General Counsel, Mickey H. Osterreicher.
The NPPA is represented in ASJA v. Bonta, before the United States Supreme Court by James M. Manley, Deborah J. La Fetra, and Caleb R. Trotter of Pacific Legal Foundation. A copy of the Petition for Review is available at this link.
Donate to the NPPA