Athens, GA - A three-judge panel in the U.S. Court of Appeals for the Ninth Circuit recently ruled against NPPA's challenge of California's AB5 labor law, affirming the district court’s ruling that the law regulates economic activity rather than speech. In response, NPPA, along with the other plaintiff involved in the lawsuit, ASJA, filed a petition for en banc review of that decision on Oct. 20, 2021. If granted, such review would be by the entire Ninth Circuit Court. The petition was filed by lawyers from the Pacific Legal Foundation, who are representing the plaintiffs in this case.
The NPPA – along with its co-plaintiff American Society of Journalists and Authors (ASJA) – launched a legal challenge to a labor law commonly referred to as AB5 in late 2019. It asked a federal court to hold that the law’s restrictions on freelance visual journalism that are different than restrictions on other communicative professions such as marketing are unconstitutional. NPPA asked the court to enjoin the enforcement of a 35-assignment limit on journalists and a ban on freelance video journalism. The harm to freelance visual journalists who are involuntarily reclassified as employees includes a potential loss of their copyright, the inability to deduct many business expenses on their taxes and the loss of business.
Separate from the lawsuit (and after significant efforts by journalists and advocates in 2019 and 2020, including by NPPA’s attorneys, Mickey Osterriecher and Alicia Calzada), the author of AB5, Assemblywoman Lorena Gonzalez, introduced two bills later in 2019 (AB 1850 and AB 2257) that removed the 35-assignment limit on visual journalists. AB 2257 was signed into law on Sept. 4, 2020, by California Governor Newsom, removing the 35-assignment limit. The changes via AB 2257 still left Californians with a law that treats journalists differently than marketers and fine artists, based on the work they are producing, the content of the work, the purpose of that work, and the identity of the speaker. Video journalists are also still restricted in their freelance work in California.
While NPPA and ASJA were pleased by the removal of the arbitrary assignment limit, they continued the lawsuit because of those concerns.
The National Press Photographers Association will continue to work to protect journalists' First Amendment rights and our freedom to inform the public.
The NPPA is represented in ASJA & NPPA v. Rob Bonta, 20-55734 (9th Cir.), by Caleb R. Trotter, James M. Manley, and Jeremy Talcott of Pacific Legal Foundation, with support from NPPA counsel Mickey Osterreicher and Alicia Calzada.
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