Does AB 5 Violate Publishers First Amendment Protections as Well as Freelancers?

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Freelance writers and photographers challenged AB 5 in court as a violation of their First Amendment’s rights to freedom of speech.  A second line of attack could come from those who hire the writers and photographers. The way some publishers run their publications, whether print or digital, could be drastically altered and potentially put out of business by the dictates of AB 5. Isn’t that a First Amendment violation “abridging …freedom…of the press?”

The First Amendment and Fourteenth Amendment challenge filed by the Pacific Legal Foundation on behalf of the American Society of Journalists and Authors, Inc., and National Press Photographers Association vs Xavier Beccera, in his role as Attorney General, raises as a key point: 

Government cannot make arbitrary distinctions among professions based on the content of their speech. It cannot single out journalists for especially unfavorable treatment compared to similar professions that deal in the business of speech.

Attorneys for the plaintiffs argue that the discriminatory nature of the law violates Fourteenth Amendment equal protection of the law because exemptions from AB 5 are offered to professions such as graphic designers, grant writers, and fine artists who work under professional service contracts, except none of these professions are limited to an arbitrary 35 submissions that is written into the bill for writers, editors, newspaper cartoonists, photographers and videographers.

While the exempted professions are allowed to practice free speech through their work without limits, the cap ordered under AB 5 limits the speech of non-exempted professions.

The challenge for the creative content providers is to have the ability to express speech, for the publishers the challenge is to produce journalism unhindered by government actions.

It is well established legally that the First Amendment, which declares that “Congress shall make no law…,” also applies to state laws. One of the United States Supreme Court cases that established the First Amendment’s reach to state governments specifically involved the press, the 1931 decision in Near vs. Minnesota. It had to do with a state law that created a prior restraint for publishing a story, but the case has been interpreted in broader terms. 

While restrictions on publishers is implied in the lawsuit filed by the independent contractors in the journalism field, abridgement of the press should be considered specifically by the court in more detail.

Will the state’s newspapers and digital outlets see an opportunity to protect their First Amendment rights by joining with the freelancers who produce some of their content in the fight against AB 5?

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