May 22, 2020
By Timothy Sandefur
California’s job-killing AB5 was written months before the coronavirus pandemic. But the surge in demand for freelance workers—everything from DoorDash delivery to independent journalists—has made all the clearer why laws that deprive people of freedom of economic choice are such a bad idea.
AB5 restricts this freedom by forcing employers to count workers as “employees” rather than freelancers in many circumstances, and because it’s far more expensive and complicated to have an “employee” than to hire a freelancer, the result is to handicap economic growth right at the cusp of the worst economic downturn in nearly a century.
Among the worst of AB5’s rules is its 35-article limit on freelance journalists. You read that right: The law prohibits freelancers from submitting more than 35 articles or photographs to a newspaper or a magazine. Actually, it’s more complicated than that: the 35-item quota only applies to articles or photos that “pertain” to a “topic” or “event.” If you’re an abstract artist or an experimental poet, you can submit more than 35.
Of course, this restriction is hardest on small, niche newspapers, who rely heavily on freelancers because they can’t afford the heavy expenses associated with the “employee” category in California. NBC News or the Los Angeles Times might be able to afford to hire writers into their staffs and pay their benefits, but small alt-weeklies and community newspapers can’t.
Represented by our friends at the Pacific Legal Foundation, a group of freelance journalists sued, arguing that the 35-item quota violates the First Amendment. That case was thrown out by a federal judge months ago, and it is now on appeal before the Ninth Circuit. We filed this brief in the case, explaining that since the law requires a judge to look at the content of an article or a photo in order to decide whether it counts against the 35-item limit, it’s therefore a “content-based” speech restriction—which violates one of the strictest rules in First Amendment law. Consider, for example, the weekly column written by former U.S. Poet Laureate Ted Kooser. Every week, his column features a poem by a different writer, along with his thoughts about that poem. If the article were run without Kooser’s commentary, it likely would not count as one of the 35 items, because many poems don’t “pertain” to a “topic.” But with his one- or two-paragraph commentary, the article would count, because that makes it “pertain” to the topic of that poem. A beautiful art photo of a flower would not count—while a photojournalist’s picture of a riot would, because it “pertains” to an “event.”
But the concern here goes beyond freedom of speech. People take freelance jobs because they want to—they have good reasons. Such jobs are often more flexible and give workers a sense of independence that they don’t get from an on-staff position. When the government takes that choice away, it often pretends it’s doing so for people’s benefit. But people themselves are in the best position to make those choices. Legal barriers against people’s freedom to make their own choices are both immoral and economically foolhardy, since they prevent economic growth and make it harder for people to obtain the services they need. That’s the last thing government should be doing at a time of massive unemployment.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.