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California’s politicians like to regulate anything that moves, and that includes political speech. Witness how a law to treat gig workers as employees has triggered a fight over the First Amendment.
In 2019 California passed AB5, which requires employers to redefine most independent contractors as employees. Democrats and Big Labor hoped the law would pad union rolls.
Uber,
and other companies that employ gig workers pushed back and won exemptions. Other industries weren’t as lucky. Under AB5, people who sell “consumer products” count as “direct sales salespersons,” while those who work on political campaigns or ballot petitions must be counted as employees.
The regulation burdens grassroots political groups and campaigns that can’t afford full-time employees to go door to door. A local group called Moving Oxnard Forward wanted to hire Mobilize the Message, which supplies campaigns with independent workers to gather signatures or knock on doors. But under the new law the workers would need to be counted as employees.
The group sued in federal court, and in October a split three-judge panel of the Ninth Circuit Court of Appeals ruled for the state (Mobilize the Message v. Bonta). The majority said there is no First Amendment violation because the law governs economic activity, not constitutionally protected speech.
That’s a thin excuse for requiring political speakers to abide by a separate set of rules, and one the Supreme Court hasn’t tolerated. “Dig beneath the surface of these ‘occupations,’” Judge Lawrence VanDyke wrote in dissent, “and it becomes clear that these occupational labels turn predominantly, if not entirely, on the content of the workers’ speech.”
To wit, if someone shows up at your door and asks if you would like to buy a vacuum, one set of rules applies. But a doorknocker who says, “can I tell you about candidate Jones?” triggers…
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