UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMERICAN SOCIETY OF JOURNALISTS No. 20-55734 AND AUTHORS, INC.; NATIONAL PRESS PHOTOGRAPHERS D.C. No. ASSOCIATION, 2:19-cv-10645- Plaintiffs-Appellants, PSG-KS

v. OPINION ROB BONTA *, Attorney General of the State of California, Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted June 11, 2021 Pasadena, California

Filed October 6, 2021

* Under Fed. R. App. P. 43(c)(2), Rob Bonta has been substituted for his predecessor, Xavier Becerra, as California Attorney General. 2 ASJA V. BONTA

Before: Consuelo M. Callahan and Danielle J. Forrest, Circuit Judges, and Richard Seeborg, ** District Judge.

Opinion by Judge Callahan

SUMMARY ***

Civil Rights

The panel affirmed the district court’s dismissal of a suit brought by the American Society of Journalists and Authors and the National Press Photographers Association challenging, on First Amendment and Equal Protection grounds, California’s Assembly Bill 5 and its subsequent amendments, which codified the more expansive ABC test previously set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1 (Cal. 2018), for ascertaining whether workers are classified as employees or independent contractors.

The ABC test permits businesses to classify workers as independent contractors only if they meet certain conditions. If a business cannot make that showing, its workers are deemed employees, and the business must comply with specific requirements, and state and federal labor laws. AB5 and its subsequent amendments, now codified at section 2778 of the California Labor Code, provides for certain

** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ASJA V. BONTA 3 occupational exemptions. Because freelance writers, photographers and others received a narrower exemption than was offered to certain other professionals, plaintiffs sued, asserting that AB5 effectuates content-based preferences for certain kinds of speech, burdens journalism and burdens the right to film matters of public interest.

The panel held that section 2778 regulates economic activity rather than speech. It does not, on its face, limit what someone can or cannot communicate. Nor does it restrict when, where, or how someone can speak. The statute is aimed at the employment relationship—a traditional sphere of state regulation. The panel further acknowledged that although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation. The panel rejected plaintiffs’ assertion that the law singled out the press as an institution and was not generally applicable.

Addressing the Equal Protection challenge, the panel held that the legislature’s occupational distinctions were rationally related to a legitimate state purpose. 4 ASJA V. BONTA

COUNSEL James M. Manley (argued), Caleb R. Trotter, and Jeremy Talcott, Pacific Legal Foundation, Sacramento, California, for Plaintiffs-Appellan