Independent Writers Sue California to Protect Rights of Freelancers

New Law Threatens Careers and Violates the Constitution  

Dec. 17, 2019
For Immediate Release
American Society of Journalists and Authors, Inc.

LOS ANGELES -- The rights of independent journalists are under attack. In response, the American Society of Journalists and Authors, Inc., today filed suit against the state of California in federal court to stop a new law from violating the Constitution and devastating the careers of freelance journalists such as writers and photographers.

“We have no choice but to go to court to protect the rights of independent writers and freelance journalists as a whole,” said Milton C. Toby, JD, president of ASJA. “The stakes are too high, and we cannot stand by as our members and our colleagues face ill-conceived and potentially career-ending legislation.”

Assembly Bill 5, which takes effect January 1, is full of unfair exemptions and carveouts that disfavor freelance journalists compared to other professions that engage in speech. Journalists are capped at 35 pieces of content per year, and if they exceed that, they must become employees. Journalists who record video instantly lose their ability to work independently. Marketers, grant writers, and graphic designers face no such limit.

“Under the law, a freelancer like me can write 200-plus press releases in a year for a marketing firm, and it’s no problem. But if a newspaper wants me to write a weekly column about local politics, it must put me on staff — a very unlikely prospect — or violate the law. Otherwise I am silenced,” said San Diego freelance writer Randy Dotinga, a board member and former president of ASJA.

The lawsuit challenging AB 5’s unconstitutional discrimination against journalists was filed in federal court in Los Angeles by ASJA’s pro bono attorneys at Pacific Legal Foundation. ASJA is proud to join the National Press Photographers Association as plaintiffs in the lawsuit. AB 5 restricts every journalist who shoots photos or records video, including writers.

On behalf of freelance journalists, ASJA played a lead role in negotiations with California state legislators as AB5 was debated earlier this year. The bill author, Assemblywoman Lorena Gonzalez, refused to give freelance journalists a workable exemption.

While AB 5 goes into effect on January 1, it has already begun to hurt the careers of freelance journalists. Multiple media outlets have blacklisted California freelance journalists or limited the amount of work they can produce in 2020. (See exhibit in lawsuit for details.)

“In a shrinking media landscape where hiring executives are still mostly white and male, AB5 places additional restrictions and burdens on women, people of color and the LGBTQ+ community by forcing many of us to seek staff jobs,” said Los Angeles freelance writer and author JoBeth McDaniel, chair of ASJA’s First Amendment Committee. “Many journalists choose to freelance because we encountered discrimination, harassment and bullying in staff positions. Others -- such as parents, caregivers and the disabled -- need the flexibility of setting their own schedules and workloads.”

Unconstitutional restrictions on independent journalism may spread beyond California. ASJA is deeply concerned about proposed laws in New York and New Jersey that are inspired by AB 5. If necessary, ASJA is prepared to launch more legal action in support of the free speech, free press and equal protection rights protected by the Constitution.

“We hope and expect that the legal challenges to the constitutionality of AB5 will encourage lawmakers considering similar measures in other states to draft legislation that protects the rights of all independent writers and other freelance journalists,” said Toby, the ASJA president.

Press Briefing: A press briefing will be held via teleconference call on December 18, 2019, at 11:30 am PST / 2:30 pm EST. Join online: https://pacificlegal.zoom.us/j/662304962

Join by phone:  669 900 6833, Meeting ID: 662 304 962

Contact Information: ASJA leaders and attorneys with the Pacific Legal Foundation are available for comment. Please direct requests to Milton C. Toby, president of ASJA, at milt.toby@gmail.com/859-285-9043, or Randy Dotinga, former president of ASJA, at randydotinga@gmail.com/619-227-7290, or Pacific Legal Foundation at media@pacificlegal.org/202-465-8733.

The PDF of the Complaint for Violation of Federal Civil Rights Under 42 U.S.C. § 1983 Declaratory and Injunctive Relief is here.

About the American Society of Journalists and Authors

Founded in 1948, the American Society of Journalists and Authors is the nation's professional organization of independent nonfiction writers. Our membership consists of outstanding freelance writers of magazine articles, trade books, and many other forms of nonfiction writing, each of whom has met ASJA’s exacting standards of professional achievement. ASJA offers extensive benefits and services focusing on professional development, including regular confidential market information, meetings with editors and others in the field, an exclusive referral service, seminars and workshops, discounted services and, above all, the opportunity for members to explore professional issues and concerns with their peers. ASJA is a primary voice in representing freelancers' interests, serving as spokesman for their right to control and profit from uses of their work in the new media and otherwise. Visit www.asja.org for more details.

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