Asja v. Rob Bonta

FOR PUBLICATION

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-Appellants.

Jose A. Zelidon-Zepeda (argued), Deputy Attorney General;
Heather Hoesterey, Supervising Deputy Attorney General;
Thomas S. Patterson, Senior Assistant Attorney General;
Office of the Attorney General, San Francisco, California;
for Defendant-Appellee.

Ilya Shapiro and Trevor Burns, Cato Institute, Washington,
D.C.; Manuel S. Klausner, Law Offices of Manuel S.
Klausner, Los Angeles, California; for Amici Curiae Cato
Institute, Reason Foundation, and Individual Rights
Foundation.

Timothy Sandefur and Christina Sandefur, Scharf-Norton
Center for Constitutional Litigation at the Goldwater
Institute, Phoenix, Arizona, for Amicus Curiae The
Goldwater Institute.

Krystal B. Swendsboe and Hyok Frank Chang, Wiley Rein
LLP, Washington, D.C., for Amicus Curiae The
Independent Institute.

Daniel R. Suhr and Reilly Stephens, Liberty Justice Center,
Chicago, Illinois, for Amicus Curiae Liberty Justice Center.
 ASJA V. BONTA 5

OPINION

CALLAHAN, Circuit Judge:

To confront the misclassification of employees as
independent contractors, California passed Assembly Bill
(AB) 5, then AB 2257, which codified a more expansive test
for determining workers’ statuses, albeit with certain
occupational exemptions. Because freelance writers,
photographers, and others received a narrower exemption
than was offered to certain other professionals, the American
Society of Journalists and Authors, Inc., and the National
Press Photographers Association (collectively, ASJA) sued,
alleging violations of the First Amendment and Equal
Protection Clause. We conclude, however, that the laws do
not regulate speech but, rather, economic activity. We
further conclude that the legislature’s occupational
distinctions are rationally related to a legitimate state
purpose. We therefore affirm the district court’s dismissal
of ASJA’s suit.

I.

The California Supreme Court dramatically altered state
labor law in Dynamex Operations West, Inc. v. Superior
Court of Los Angeles, 416 P.3d 1 (Cal. 2018), by adopting
the “ABC test” for ascertaining whether workers were
employees or independent contractors. That test permits
businesses to classify workers as independent contractors
only if they (a) are “free from the control and direction of the
hirer,” (b) perform work “that is outside the usual course of
the hiring entity’s business,” and (c) are “customarily
engaged in an independently established trade, occupation,
or business.” Id. at 34. If a business cannot make that
showing, its workers are deemed employees, in which case
the business must comply with certain requirements—
6 ASJA V. BONTA

“paying federal Social Security and payroll taxes,
unemployment insurance taxes and state employment taxes,
providing worker’s compensation insurance, and . . .
complying with numerous state and federal statutes and
regulations governing the wages, hours, and working
conditions of employees.” Id. at 5.

Before Dynamex, California courts applied the multi-
factor test established in S.G. Borello & Sons, Inc. v.
Department of Industrial Relations, 769 P.2d 399 (Cal.
1989). Under Borello, a worker’s status turned primarily on
the hiring entity’s right to control the worker. Id. at 403–04.
But courts also looked to several “secondary indicia” of
employment, including the hiring entity’s right to discharge
workers at will, the length of the workers’ services, and
whether the work was part of the hiring entity’s regular
business. 1 Id. at 404. Importantly, no factor was dispositive;
courts engaged in a case-by-case evaluation of the
arrangement at issue. Id. at 407. This flexibility gave the
California Supreme Court pause. Concerned that the Borello

1
The other factors include

whether the one performing services is engaged in a
distinct occupation or business; . . . the kind of
occupation, with reference to whether, in the locality,
the work is usually done under the direction of the
principal or by a specialist without supervision; . . . the
skill required in the particular occupation; . . . whether
the principal or the worker supplies the
instrumentalities, tools, and the place of work for the
person doing the work; . . . the method of payment,
whether by the time or by the job; . . . and whether the
parties believe they are creating the relationship of
employer-employee.

Borello, 769 P.2d at 404.
 ASJA V. BONTA 7

standard caused confusion and enabled businesses to evade
labor requirements, the Dynamex court adopted the more
rigid ABC test. 416 P.3d at 33–34.

Although Dynamex was initially limited to wage orders, 2
with Borello applying outside that context, the California
legislature codified the ABC test and expanded its
applicability through the enactment of AB 5. The legislature
gave several reasons for taking this step. It found that
misclassification caused workers to “lose significant
workplace protections,” deprived the state of needed
revenue, and ultimately contributed to the “erosion of the
middle class and the rise in income inequality.” AB 5,
Ch. 296, 2019–2020 Reg. Sess. (Cal. 2019). With AB 5, the
legislature declared, it was protecting “potentially several
million workers.” Id.

AB 5 did not apply Dynamex across the board, however,
but specified that the Borello standard would continue
governing many occupations and industries. See generally
Cal. Lab. Code § 2750.3. For example, the law exempted
from the ABC test licensed doctors, lawyers, architects,
engineers, and accountants, as well as certain commercial
fishermen, salesmen, and investment advisers, among many
others. Id. § 2750.3(b)(2)–(6). It also exempted those
engaged in enumerated “professional services,” which were
defined to include marketing, graphic design, grant writing,

2
Wage orders are “quasi-legislative regulations” that “impose
obligations relating to the minimum wages, maximum hours, and a
limited number of very basic working conditions (such as minimally
required meal and rest breaks) of California employees.” Dynamex,
416 P.3d at 5 & n.3.
8 ASJA V. BONTA

barbery, cosmetology, and fine art. Id. § 2750.3(c)(2)(B)(i),
(iv)–(vi), (xi).

At issue here are AB 5’s “professional service”
exemptions for freelance workers, including freelance
writers and photographers. Id. § 2750.3(c)(2)(B)(ix)–(x).
As originally enacted, AB 5 limited this exemption to
freelancers who submitted fewer than thirty-five pieces of
work to a single entity in a given year. Id. If a freelancer
stayed within that limit, Borello governed. If he exceeded it,
Dynamex instead applied. AB 5 also provided that the
exemption did not apply to photographers, photojournalists,
and videographers working on “motion pictures”—i.e.,
“projects produced for theatrical, television, internet
streaming for any device, commercial productions,
broadcast news, music videos, and live shows.” Id.
§ 2750.3(c)(2)(B)(ix). Dynamex governed their
arrangements no matter the situation.

ASJA sued to enjoin the above limitations and thereby
expand the freelance exemptions. In ASJA’s view, the
submission limit and exclusion of “motion picture” workers
offended the Free Speech, Free Press, and Equal Protection
Clauses because they did not apply to other professionals,
such as marketers and artists, who enjoyed broader, or at
least differently contoured, exemptions from Dynamex’s
ABC test. The restrictions burdened journalism, ASJA
claimed, by forcing freelancers to become employees,
thereby reducing their work opportunities and inhibiting
their “freedom to freelance.”

ASJA moved for a preliminary injunction and for a
temporary restraining order. The court denied the
restraining-order request and, after concluding that ASJA
was unlikely to prevail, declined to issue a preliminary
injunction. It rejected ASJA’s First Amendment argument,
 ASJA V. BONTA 9

finding that AB 5 regulated economic conduct, not speech,
and that the law evinced no content preference. The court
also held that AB 5 survived ASJA’s Equal Protection
challenge because the regulated occupations were not
similarly situated and, even if they were, there was a rational
basis for the legislature’s occupational classifications.

ASJA appealed the district court’s order, and California
moved for dismissal of the underlying action. The court
dismissed the suit for the same reasons that it denied the
preliminary injunction, and ASJA appealed that order, too.
We then dismissed ASJA’s first appeal, holding that the
denial of the preliminary injunction “merged” into the final
judgment. No. 20-55408, Dkt. No. 32 (9th Cir. Aug. 20,
2020).

In the meantime, the California legislature amended
AB 5 with AB 2257, which added new “professional
service” exemptions and clarified existing ones. 3 See Cal.

3
Exempted professionals now include creative marketers, human
resources administrators, travel agents, graphic designers, grant writers,
fine artists, payment processing agents, estheticians, electrologists,
manicurists, barbers, cosmetologists, specialized performers hired by a
performing arts company or organization to teach a master class,
appraisers, foresters, real estate agents, home inspectors, and
repossession agencies. Cal. Lab. Code § 2778(b)(2)(A)–(H), (L)–(O);
see also infra n.5.

While the exemptions accorded to these services differ in their
particulars, workers providing a “professional service” listed in AB 2257
must, in addition to satisfying their industry’s individualized conditions,
“maintain[] a business location . . . separate from the hiring entity,” set
their own hours “[o]utside of project completion dates and reasonable
business hours,” and “customarily and regularly exercise[] discretion and
independent judgment in the performance of the services,” among other
requirements. Cal. Lab. Code § 2778(a).
10 ASJA V. BONTA

Lab. Code § 2778. As relevant here, AB 2257 dropped the
thirty-five-submissions limit but bounded the freelance
exemptions in other ways. Now, for Borello to apply,
freelance workers cannot “directly replac[e] an employee
who performed the same work at the same volume for the
hiring entity,” “primarily perform the work at the hiring
entity’s business location,” or be “restricted from working
for more than one hiring entity.” 4 Id. § 2778(b)(2)(I)–(J).
The law remained largely the same in other respects. Thus,
notwithstanding AB 2257’s changes, ASJA maintains that
the law, now codified at section 2778 of California’s Labor
Code, continues to violate the First Amendment and Equal
Protection Clause. 5

II.

Because the district court dismissed AJSA’s suit while
its appeal of the preliminary-injunction order was pending,
the orders merged. See Nationwide Biweekly Admin., Inc. v.
Owen, 873 F.3d 716, 730–31 (9th Cir. 2017) (describing the
merger doctrine); accord SEC v. Mt. Vernon Mem. Park,
664 F.2d 1358, 1361–62 (9th Cir. 1982). We thus begin—
and ultimately end—with the dismissal order, which we

4
The freelance exemption’s revised conditions apply to services
provided by still photographers, photojournalists, videographers, photo
editors, id. § 2778(b)(2)(I); freelance writers, translators, editors, copy
editors, illustrators, or newspaper cartoonists, id. § 2778(b)(2)(J); and
content contributors, advisors, producers, narrators, or cartographers for
journals, books, periodicals, evaluations, other publications, or
educational, academic, or instructional works in any format or media, id.
§ 2778(b)(2)(K).
5
We GRANT ASJA’s motion to supplement the record with
declarations showing that AB 2257 did not moot this appeal. See
Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1020 n.3
(9th Cir. 2010).
 ASJA V. BONTA 11

review de novo. Butterfield v. Bail, 120 F.3d 1023, 1024
(9th Cir. 1997).

III.

A.

The First Amendment, applied to states through the
Fourteenth Amendment, prohibits laws that abridge the
freedom of speech or the press. U.S. Const. amend. I.
Governments cannot, therefore, “restrict expression because
of its message, its ideas, its subject matter, or its content.”
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)).
Such restrictions are “presumptively unconstitutional and
may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” Id. In
ascertaining whether a speech-restricting law triggers this
exacting standard of review, we consider whether it
“defin[es] regulated speech by particular subject matter” or,
more subtly, “by its function or purpose.” Id. Strict scrutiny
applies in either case. Id. But before conducting that
analysis, we must assess whether the law regulates speech in
the first place. See, e.g., United States v. Swisher, 811 F.3d
299, 314 (9th Cir. 2016).

1.

The thrust of ASJA’s First Amendment argument is that,
under section 2778, a worker’s likelihood of being classified
as an employee, rather than an independent contractor, turns
on the content of his work. If the worker provides marketing
services, for example, then Borello governs “provided that
the contracted work is original and creative in character.”
Cal. Lab. Code § 2778(b)(2)(A). If the worker instead
produces art, then Borello applies when the work is “to be
12 ASJA V. BONTA

appreciated primarily or solely for [its] imaginative,
aesthetic, or intellectual content.” Id. § 2778(b)(2)(F)(ii).
Grant writers and graphic designers meanwhile enjoy
broader exemptions from Dynamex. Id. § 2778(b)(2)(D)–
(E). But for Borello to apply to a freelance writer or
photographer, he must not replace an employee that
performed the same workload, be restricted from working
for other entities, or work primarily at the hirer’s business
location. Id. § 2778(b)(2)(I)–(J). In ASJA’s view, these
restrictions single out journalism and, more generally,
effectuate content-based preferences for certain kinds of
speech. ASJA concludes that because employees impose
greater financial burdens on prospective hirers than do
independent contractors, the law interferes with freelancers’
right to speak for a profession.

There is a distinction, however, between “restrictions on
protected expression” and “restrictions on economic
activity.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567
(2011). Whereas the First Amendment may prohibit the
former, it “does not prevent restrictions directed at
commerce or conduct from imposing incidental burdens on
speech.” Id. Consistent with this view, the Supreme Court
has rejected First Amendment challenges to the Fair Labor
Standards Act and its exceptions, Okla. Press Pub. Co. v.
Walling, 327 U.S. 186, 192–94 (1946); the National Labor
Relations Act, Assoc. Press v. NLRB, 301 U.S. 103, 130–33
(1937); the Sherman Act, Assoc. Press v. United States,
326 U.S. 1, 19–20 (1945); and taxes, Leathers v. Medlock,
499 U.S. 439, 447–49 (1991). These cases, and others like
them, establish that an entity “cannot claim a First
Amendment violation simply because it may be subject to
. . . government regulation.” Univ. of Penn. v. EEOC,
493 U.S. 182, 200 (1990).
 ASJA V. BONTA 13

Section 2778 fits within this line of cases because it
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.
It instead governs worker classification by specifying
whether Dynamex’s ABC test or Borello’s multi-factor
analysis applies to given occupations under given
circumstances. In other words, the statute is aimed at the
employment relationship—a traditional sphere of state
regulation. See DeCanas v. Bica, 424 U.S. 351, 356 (1976).
Such rules understandably vary based on the nature of the
work performed or the industry in which the work is
performed, and section 2778 is no different in this regard. 6
But whether employees or independent contractors, workers
remain able to write, sculpt, paint, design, or market
whatever they wish. 7

6
Although not at issue here, federal employment regulations draw
similar distinctions. See generally, 29 C.F.R. Subpt. D (setting forth
exemptions from the Fair Labor Standards Act for “professional
employees”). Like section 2778, those rules exempt lawyers, doctors,
and architects from minimum-wage and overtime requirements. Id.
§§ 541.301, 304. They also generally exempt “music, writing, . . . and
the graphic arts,” among others, as well as certain painters, cartoonists,
novelists, and journalists. Id. § 541.302; see also id. § 541.300(a)(2)(ii)
(exempting those whose work “[r]equir[es] invention, imagination,
originality or talent in a recognized field of artistic or creative
endeavor”).
7
Section 2778 thus differs from the laws deemed problematic in
cases like Reed, 576 U.S. 155; Sorrell, 564 U.S. 552; and Pacific Coast
Horseshoeing School v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020),
upon which ASJA relies. In Reed, the Court invalidated an ordinance
restricting residents’ display of signs—“a canonical First Amendment
medium—on the basis of the language they contained,” Note, Free
Speech Doctrine after Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981,
14 ASJA V. BONTA

The ABC test may, as ASJA contends, make it more
likely that some of its members are classified as employees.
And that classification may indeed impose greater costs on
hiring entities, which in turn could mean fewer overall job
opportunities for workers, among them certain “speaking”
professionals. But such an indirect impact on speech does
not necessarily rise to the level of a First Amendment
violation. After all, “every civil and criminal remedy
imposes some conceivable burden on First Amendment
protected activities.” Arcara v. Cloud Books, Inc., 478 U.S.
697, 706 (1986); cf. Glickman v. Wileman Bros. & Elliott,
Inc., 521 U.S. 457, 470 (1997) (“The fact that an economic
regulation may indirectly lead to a reduction in a[n] . . .
advertising budget does not itself amount to a restriction on
speech.”).

Granted, economic regulations can still implicate the
First Amendment when they are not “generally applicable”
but instead target certain types of speech and thereby raise
the specter of government discrimination. Hence, in
Minneapolis Star & Tribune v. Minnesota Comm’r of
Revenue, 460 U.S. 575 (1983), the Supreme Court rejected a
special-use tax on paper and ink products used exclusively
by newspapers. The tax both singled out the press for special
treatment, raising free-press problems, and targeted just a
few newspapers, raising censorship concerns. Id. at 578–79.
In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221
(1987), the Court invalidated a state’s selective taxation of

1993 (2016). Sorrell dealt with content-based prohibitions on
disseminating information, an established form of speech. 564 U.S.
at 563, 567–69. And Pacific Coast Horseshoeing concerned a law that
“squarely” implicated the First Amendment by “regulat[ing] what kind
of educational programs different institutions can offer to different
students.” 961 F.3d at 1069.
 ASJA V. BONTA 15

certain magazines but not religious, trade, or sports ones.
And, relatedly, in Simon & Schuster v. Members of New York
Crime Victims Board, 502 U.S. 105 (1991), the Court found
unconstitutional a law requiring publishers of criminals’
books to turn over an author’s proceeds if the book
concerned his or her crime. Notwithstanding the law’s
laudable goal of compensating victims, it imposed a content-
based financial burden disincentivizing certain types of
speech. Id. at 115–18; see also Interpipe Contracting, Inc.
v. Becerra, 898 F.3d 879, 903 (9th Cir. 2018) (expounding
on when economic regulations might implicate the First
Amendment).

Section 2778 poses none of these problems, however. It
does not target the press or a few speakers, because it applies
across California’s economy. That is, it establishes a default
rule applying Dynamex’s ABC test to the classification of all
work arrangements unless an arrangement falls within an
exemption, in which case Borello applies. Freelancers and
related professionals enjoy one exemption and may
understandably want it broadened. But many occupations
have no exemption at all; the ABC test governs their
classification regardless of the circumstances. So if a
freelance writer falls out of his exemption’s scope—by, say,
being restricted from working for more than one entity—he
is not uniquely burdened. Rather, he is then treated the same
as the many other workers governed by the ABC test. This
distinguishes section 2778 from the newspaper-ink tax
invalidated in Minneapolis Star, which was “without parallel
in the State’s tax scheme,” 460 U.S. at 582, and the targeted
burden at issue in Simon & Schuster, which “the State
place[d] on no other income.” 502 U.S. at 116.

We note, moreover, that the specific conditions
complained of apply not only to journalists, but to all
16 ASJA V. BONTA

freelance writers, photographers, and others in the state—
including narrators and cartographers for journals, books, or
“educational, academic, or instructional work[s] in any
format or media.” Cal. Lab. Code § 2778(b)(2)(I)–(K). As
a result, those conditions do not single out the press as an
institution. And contrary to ASJA’s contention, the law is
not rendered generally inapplicable just because some other
professionals—among them lawyers, human-resource
administrators, and creative marketers—enjoy different, or
even broader, carveouts from the ABC test. See Okla. Press,
327 U.S. at 193 (rejecting the notion that federal labor law
could not be applied to the press because it exempted
“seamen, farm workers and others”). Indeed, we recently
upheld AB 5 as a “generally applicable” law in another
context, despite its exemptions, because it applies to
employers generally. Cal. Trucking Ass’n v. Bonta, 996 F.3d
644, 658–59 (9th Cir. 2021). “Labor laws typically include
exemptions,” we explained. Id. at 659 n.9.

Nor does section 2778 impose content-based burdens on
speech, for even assuming that the ABC test constitutes an
economic burden akin to a tax, its applicability does not turn
on what workers say but, rather, on the service they provide
or the occupation in which they are engaged. And although
some regulated occupations “speak” as part of their
professions, nothing about section 2778’s text, structure, or
purpose reflects a legislative content preference. 8 See Reed,

8
ASJA argues that section 2778 may require state authorities to
examine the content of a worker’s message when determining whether
Borello or Dynamex applies. This, ASJA contends, signals that the law
impermissibly singles out speech based on its subject matter. That can
be true, but it is not dispositive. See Recycle for Change v. City of
Oakland, 856 F.3d 666, 671 (9th Cir. 2017) (collecting cases). A
government might have to examine the contents of writings to determine
 ASJA V. BONTA 17

576 U.S. at 170. Notably, the practice of most exempted
professions—such as home inspectors, foresters, and
fisherman—does not equate to “speech.” Other regulated
services, which could constitute “speech,” do not serve as
stand-ins for particular subject matters. These include
freelance writers, graphic designers, and photo editors. Cf.
Mastrovincenzo v. City of N.Y., 435 F.3d 78, 99 (2d Cir.
2006) (“The mere fact that [the rule] differentiates between
categories of vendors—that is, vendors of written materials,
paintings, photographs, prints and sculptures are exempt
from its licensing requirement while other vendors are not—
does not suggest that [it] targets particular messages and
favors others.” (emphasis omitted)). Creative marketers
will, of course, communicate about marketing, just as
lawyers will about law. But the inclusion of provisions
specific to such “speaking” professionals does not, in our
view, transform a broad-ranging, comprehensive
employment law like section 2778 into a content-based
speech regulation. Cf. Ohlralik v. Ohio State Bar Ass’n,
436 U.S. 447, 456 (1978) (“[T]he State does not lose its
power to regulate commercial activity deemed harmful to the
public whenever speech is a component of that activity.”). If
it did, it is difficult to see how any occupation-specific
regulation of speakers would avoid strict scrutiny. 9 We
decline ASJA’s invitation to apply the First Amendment in
this manner.

if someone is engaged in the unauthorized practice of law, for example,
but that alone would not violate the First Amendment. Furthermore,
assessing a worker’s duties in the employment setting is typically a fact-
intensive inquiry concerning the nature of one’s work.
9
A legislature could conceivably define services or occupations so
granularly that a court could isolate the speech’s communicative intent
as a defining distinction.
18 ASJA V. BONTA

2.

ASJA separately challenges section 2778’s application
of the ABC test to freelancers working on “motion pictures.”
See Cal. Lab. Code § 2778(b)(2)(I)(i). According to ASJA,
this provision burdens the right to film matters of public
interest. We do not share this concern, as “motion pictures”
refers to an industry or medium through which content is
conveyed, and such distinctions do not typically implicate
the First Amendment. See Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 660 (1994) (“[T]he fact that a law singles out
a certain medium . . . is insufficient by itself to raise First
Amendment concerns.”) (citation omitted); see also Assoc.
Film Dist. Corp. v. Thornburgh, 683 F.2d 808, 812–13 (3d
Cir. 1983) (describing as “clearly content-neutral” a law
regulating “trade practice legislation, directed at the motion
picture industry as opposed to other industries, not because
that industry communicates ideas, but rather because . . . the
market structure of that industry is unique”).

True, the provision defines “motion pictures” as
including “theatrical or commercial productions, broadcast
news, television, and music videos,” Cal. Lab. Code
§ 2778(b)(2)(I)(i), but this does not signify a burden based
on the “topic discussed or the idea or message expressed.”
Recycle for Change v. City of Oakland, 856 F.3d 666, 670
(9th Cir. 2017) (quoting Reed, 576 U.S. at 163). Rather, the
definition provides an illustrative, non-exclusive list of
productions that constitute “motion pictures.” So even if
those examples equate to different subject matters, the law
does not distinguish between them; whether “motion
pictures” involve news or music, section 2778 treats those
working on them the same.
 ASJA V. BONTA 19

B.

The Equal Protection Clause prohibits states from
“deny[ing] to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1; Plyler
v. Doe, 457 U.S. 202, 216 (1982) (“The Equal Protection
Clause directs that all persons similarly circumstanced shall
be treated alike.”). When a law burdens a fundamental right,
like that to free speech, we apply strict scrutiny. See
Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th
Cir. 2002). But having found that section 2778 does not
implicate the First Amendment, we review for a rational
basis, asking only whether the statute’s occupational
classifications are “rationally-related to a legitimate
governmental interest.” 10 Id. (citation omitted).

This is a fairly forgiving standard, given the wide latitude
afforded to states in managing their economies. See City of
New Orleans v. Dukes, 427 U.S. 297, 303 (1976). We
uphold economic classifications so long as “there is any
reasonably conceivable state of facts that could provide a
rational basis” for them. FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 313 (1993). Therefore, to prevail, the party
attacking a law must “negate every conceivable basis which
might have supported” the distinctions drawn. Angelotti
Chiropractic v. Baker, 791 F.3d 1075, 1086 (9th Cir. 2015)
(internal quotation marks and citation omitted).

ASJA has not done that. In deciding whether and under
what conditions Dynamex’s ABC test applies to a given
occupation, California weighed several factors: the workers’
historical treatment as employees or independent

10
ASJA acknowledges the state’s interest in properly classifying
workers.
20 ASJA V. BONTA

contractors, the centrality of their task to the hirer’s business,
their market strength and ability to set their own rates, and
the relationship between them and their clients. See
generally Cal. Bill Analysis, AB 5 (July 10, 2019). It is
certainly conceivable that differences between occupations
warrant differently contoured rules for determining which
employment test better accounts for a worker’s status. 11 It
is also conceivable that misclassification was more rampant
in certain industries and therefore deserving of special
attention. “Legislatures may implement their program step
by step . . . , adopting regulations that only partially
ameliorate a perceived evil and deferring complete
elimination of the evil to future regulations.” City of New
Orleans, 427 U.S. at 303 (citations omitted); accord
Angelotti, 791 F.3d at 1085–86. And even if California
could have better addressed misclassification some other
way, or with greater precision, the Equal Protection Clause
does not require it. See Beach Commc’ns, Inc., 508 U.S.
at 315 (“[A] legislative choice is not subject to courtroom
fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.”); see also
Williamson, 348 U.S. at 487–88 (“[T]he law need not be in
every respect logically consistent with its aims to be
constitutional.”). So long as the law rests upon some rational
basis—as it does here—our inquiry is at an end.

11
Occupational classifications often survive Equal Protection
challenges. See, e.g., Ala. Dep’t of Revenue v. CSX Transp., Inc.,
575 U.S. 21, 28 (2015) (collecting examples); see also id. (noting states’
power to “impose widely different taxes on various trades or
professions” (quoting 1 J. Hellerstein & W. Hellerstein, State Taxation
§ 3.03 (3d ed. 2001–2005)). For example, a rule can apply to opticians
but not optometrists, Williamson v. Lee Optical of Okla. Inc., 348 U.S.
483, 486–91 (1955), or to dentists but no one else, Semler v. Ore. State
Bd. of Dental Examiners, 294 U.S. 608, 610 (1935).
 ASJA V. BONTA 21

ASJA does not meaningfully challenge the conceivable
bases underpinning section 2778’s distinctions but, instead,
likens them to those deemed unconstitutional in Merrifield
v. Lockyer, 547 F.3d 978 (9th Cir. 2008). We disagree with
the comparison, as Merrifield “presented a unique set of
facts.” Allied Concrete & Supply Co. v. Baker, 904 F.3d
1053, 1065 (9th Cir. 2018). It involved a state licensure
requirement applicable to pest controllers dealing with bats,
raccoons, skunks, and squirrels but not pest controllers
dealing with mice, rats, or pigeons. Merrifield, 547 F.3d at
981–82. In defending the law against a due process
challenge, the state had argued that licensure was needed to
educate workers about pesticide risks. Id. at 987–88. But
since those eradicating mice, rats, and pigeons were more
likely to encounter pesticides, the state had “undercut its own
rational basis for the licensing scheme.” Id. at 992.

Unlike the situation in Merrifield, however, nothing
about section 2778 suggests that its classifications “border[]
on corruption, pure spite, or naked favoritism lacking any
legitimate purpose.” S.F. Taxi Coal. v. City and Cnty. of
S.F., 979 F.3d 1220, 1225 (9th Cir. 2020) (explaining that
Merrifield represents the “outer limit to the state’s
authority”). Instead, like many other employment laws,
section 2778 permissibly subjects workers in different fields
to different rules.

IV.

Section 2778’s use of different worker-classification
tests for different occupations under different circumstances
does not implicate the First Amendment or violate the Equal
Protection Clause. The law regulates economic activity, not
speech, and a rational basis supports the distinctions it
draws. We therefore affirm the dismissal of ASJA’s suit
22 ASJA V. BONTA

and, accordingly, need not address the denial of ASJA’s
request for a preliminary injunction.

AFFIRMED.