California’s Disfavored Speakers – WSJ
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California politicians like to regulate anything that moves, and that includes political speech. Witness how a law to treat gig workers as employees sparked a First Amendment fight.
In 2019, California passed AB5, which requires employers to redefine most independent contractors as employees. Big Democrats and Labor hoped the bill would fill the union rolls.
Uber, DoorDash and other companies that hire gig workers pulled back and won exemptions. Other industries were not so lucky. Under AB5, people who sell “consumer products” count as “direct salespeople,” while those who work on political campaigns or ballot petitions must count as employees.
The regulation burdens grassroots political groups and campaigns that can’t afford full-time staff to go door-to-door. A local group called Moving Oxnard Forward wanted to hire Mobilize the Message, which provides campaigns with freelance workers to collect signatures or knock on doors. But under the new law, workers will have to be counted as employees.
The group sued in federal court, and in October a three-judge panel of the Ninth Circuit Court of Appeals ruled for the state (Mobilize the Message against Bonta). Mazhoranca said there is no First Amendment violation because the law regulates economic activity, not constitutionally protected speech.
This is a flimsy excuse for requiring political speakers to adhere to a set of special rules, which the Supreme Court has not tolerated. “Dig beneath the surface of these ‘professions,'” Justice Lawrence VanDyke wrote in dissent, “and it becomes clear that these occupational labels are directed primarily, if not entirely, to the content of workers’ speech.”
To understand, if someone shows up at your door and asks if you want to buy a vacuum, a set of rules apply. But a door knocker who says, “Can I tell you about Candidate Jones?” prompt another.
Judge VanDyke noted that the distinction between commercial and non-commercial speech constitutes a content-based restriction on speech. IN Barr v. American Assn. of Political Consultants (2020), the Supreme Court rejected the argument that some robocalls can be prohibited but others are permitted if they are for debt collection. IN Citizens United v. FEC (2010), the Supreme Court wrote that “[s]restrictions on interception based on the identity of the speaker are too often simply a means of controlling content.”
Content-based speech regulations are subject to strict judicial scrutiny and deserve a closer look. Let’s hope the full Ninth Circuit takes up the case.
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