Respondents Brief — American Society of Journalists and Authors, Inc., et al., Petitioners v. Rob Bonta, Attorney General of California

No. 21-1172

In the Supreme Court of the United States

AMERICAN SOCIETY OF JOURNALISTS AND

AUTHORS, INC., et al.,

Petitioners,

v.

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

SAMUEL P. SIEGEL*

JOSHUA A. KLEIN

Deputy Solicitors General

JOSE A. ZELIDON-ZEPEDA

Deputy Attorney General

May 23, 2022

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

San Francisco, CA 94102-7004

(415) 510-3917

Sam.Siegel@doj.ca.gov

*Counsel of Record

i

QUESTIONS PRESENTED

Like other jurisdictions, California distinguishes

between “employees” and “independent contractors”

for purposes of certain labor and employment statutes,

and applies specific tests to determine whether a particular worker is an employee or independent contractor. As presently structured, California’s Labor Code

“establishes a default rule” applying a three-part test

from Dynamex Operations West, Inc. v. Superior Court

of Los Angeles, 4 Cal. 5th 903 (2018), “unless an arrangement falls within an exemption, in which case [it]

applies” a multi-factor test from S.G. Borello & Sons,

Inc. v. Department of Industrial Relations, 48 Cal. 3d

341 (1989). Pet. App. A-16. Petitioners raise a First

Amendment challenge to one set of exemptions, contained in California Labor Code Section 2778, on the

ground that those exemptions result in the Borello test

being applied to certain occupations, while some of

petitioners’ members are subject to the Dynamex test.

The questions presented are:

1. Whether the court of appeals correctly rejected

petitioners’ argument that Section 2778 is an impermissible content-based restriction on speech.

2. Whether Section 2778 is subject to heightened

scrutiny under the First Amendment because of incidental effects on speech.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 7

Conclusion.................................................................. 18

iii

TABLE OF AUTHORITIES

Page

CASES

Ali v. Los Angeles Focus Publication

112 Cal. App. 4th 1477 (2003) ............................... 1

Arcara v. Cloud Books, Inc.

478 U.S. 697 (1986) .............................................. 15

Associated Press v. NLRB

301 U.S. 103 (1937) ................................................ 8

Associated Press v. United States

326 U.S. 1 (1945) .................................................... 8

Billups v. City of Charleston

961 F.3d 673 (4th Cir. 2020) .......................... 16, 17

Blue v. McBride

252 Kan. 894 (1993) ............................................. 16

Bruni v. City of Pittsburgh

941 F.3d 73 (3d. Cir. 2019) .................................. 13

Cahaly v. Larosa

796 F.3d 399 (4th Cir. 2015) ................................ 13

City of Austin v. Reagan National Advertising

of Austin, LLC

No. 20-1029 (U.S. Apr. 21, 2022) ............. 11, 12, 14

City of Erie v. Pap’s A.M.

529 U.S. 277 (2000) .............................................. 14

iv

TABLE OF AUTHORITIES

(continued)

Page

Comcast of Maine/New Hampshire, Inc.

v. Mills

988 F.3d 607 (1st Cir. 2021)........................... 16, 17

Dynamex Operations West, Inc. v.

Superior Court of Los Angeles

4 Cal. 5th 903 (2018) .......................................... 1, 2

Forsyth County v. Nationalist Movement

505 U.S. 123 (1992) .............................................. 16

Fort Lauderdale Food Not Bombs v. City

of Fort Lauderdale

11 F.4th 1266 (11th Cir. 2021) ............................ 13

Harbourside Place, LLC v. Town of Jupiter

958 F.3d 1308 (11th Cir. 2020) ............................ 13

Hest Technologies, Inc. v. State ex rel.

Perdue

366 N.C. 289 (2012) .............................................. 16

Leathers v. Medlock

499 U.S. 439 (1991) ............................................ 8, 9

Left Field Media LLC v. City of Chicago

822 F.3d 988 (7th Cir. 2016) ................................ 16

Leydon v. Town of Greenwich

257 Conn. 318 (2001)............................................ 16

March v. Mills

867 F.3d 46 (1st Cir. 2017) .................................. 13

v

TABLE OF AUTHORITIES

(continued)

Page

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue

460 U.S. 575 (1983) ............................................ 8, 9

Missouri Broadcasters Ass’n v. Schmitt

946 F.3d 453 (8th Cir. 2020) ................................ 16

National Institute of Family & Life

Advocates v. Becerra

138 S. Ct. 2361 (2018) .......................................... 15

Ness v. City of Bloomington

11 F.4th 914 (8th Cir. 2021) ................................ 16

Oklahoma Press Publishing Co. v. Walling

327 U.S. 186 (1946) ............................................ 8, 9

Reed v. Town of Gilbert

576 U.S. 155 (2015) ...................................... passim

S.G. Borello & Sons, Inc. v. Department

of Indusrial Relations

48 Cal. 3d 341 (1989).............................................. 1

Sorrell v. IMS Health Inc.

564 U.S. 552 (2011) .......................................... 8, 13

Texas Entertainment Ass’n, Inc. v. Hegar

10 F.4th 495 (5th Cir. 2021) .......................... 13, 14

The Pitt News v. Fisher

215 F.3d 354 (3d Cir. 2000).................................. 16

vi

TABLE OF AUTHORITIES

(continued)

Page

Thomas v. Chicago Park District

534 U.S. 316 (2002) .............................................. 16

Turner Broadcasting System, Inc. v. FCC

512 U.S. 622 (1994) ................................................ 6

United States v. National Treasury

Employees Union

513 U.S. 454 (1995) ........................................ 15, 16

Wright v. City of St. Petersburg

833 F.3d 1291 (11th Cir. 2016) ............................ 16

STATUTES

2019 Cal. Stat. 2888-2899 ........................................... 2

2019 Cal. Stat. 2890 .................................................... 2

2019 Cal. Stat. 2893 .................................................... 3

2020 Cal. Stat. 1842-1843 ........................................... 3

California Labor Code

§§ 2776-2784 ........................................................... 2

§ 2778(a) ........................................................... 3, 11

§ 2778(a)(1) ....................................................... 3, 11

§ 2778(a)(3) ....................................................... 3, 11

§ 2778(b)(2)(A) .................................................. 3, 10

§ 2778(b)(2)(B) ........................................................ 3

§ 2778(b)(2)(C) ........................................................ 3

§ 2778(b)(2)(D) .................................................. 3, 10

vii

TABLE OF AUTHORITIES

(continued)

Page

§ 2778(b)(2)(E) ...................................................... 10

§ 2778(b)(2)(I)(i) ............................................ 3, 4, 11

§ 2778(b)(2)(J) ........................................ 3, 4, 10, 11

§ 2778(b)(2)(K) .................................................... 3, 4

§ 2778(b)(2)(L) ........................................................ 3

§ 2778(b)(2)(A)-(O) ................................................ 11

§ 2778(c)(2) ............................................................. 2

§ 2783(b) ................................................................. 2

§ 2783(c) .................................................................. 2

§ 2783(g) ................................................................. 2

OTHER AUTHORITIES

29 C.F.R. Subpart D .................................................... 9

California Senate Committee on Labor, Public

Employment & Retirement, Analysis of A.B. 5

(July 10, 2019) ........................................................ 2

Cybernet Entertainment, LLC Dba Kink.com,

2015 WL 10058906 (Cal. Dep’t of Indus.

Relations, Occupational Safety & Health

Appeals Bd. Apr. 20, 2015) .................................... 1

Shimabukuro, Congressional Research Service,

R46765, Worker Classification (2021),

https://crsreports.congress.gov/product/pdf/R/R46

765 ......................................................................... 1

1

STATEMENT

1. In California and other jurisdictions, labor and

employment laws sometimes turn on whether a

worker is classified as an “employee” or an “independent contractor.” Jurisdictions apply a variety of tests

to determine how to classify particular workers. 1 Before 2018, California generally applied a balancing

test. See S.G. Borello & Sons, Inc. v. Dep’t of Indus.

Relations, 48 Cal. 3d 341 (1989). That “Borello” test

considered a variety of factors, see id. at 349-351, with

a particular focus “on the hiring entity’s right to control the worker,” Pet. App. A-6. 2

In 2018, the California Supreme Court concluded

that a different test governs worker classification for

purposes of California wage orders, which regulate

wages, hours, and certain other working conditions.

See Dynamex Operations W., Inc. v. Superior Ct. of

L.A., 4 Cal. 5th 903, 913-914, 916-917 (2018). Under

that test, known as the “ABC” test, workers are classified as independent contractors if they (a) are “free

generally Shimabukuro, Cong. Research Serv., R46765,

Worker Classification 9 (2021), https://crsreports.congress.gov/

product/pdf/R/R46765 (last visited May 19, 2022).

1 See

2 Although petitioners and their amici repeatedly suggest otherwise, the Borello test does not inevitably lead to a determination

that a worker is an independent contractor. See, e.g., Ali v. L.A.

Focus Publ’n, 112 Cal. App. 4th 1477, 1484-1486 (2003) (a reasonable trier of fact could conclude that a newspaper community

affairs editor was an employee under Borello), disapproved of on

other grounds by Reid v. Google, Inc., 50 Cal. 4th 512 (2010); Cybernet Entm’t, LLC Dba Kink.com, 2015 WL 10058906, at *4 n.6

(Cal. Dep’t of Indus. Relations, Occupational Safety & Health

Appeals Bd. Apr. 20, 2015) (employer acknowledged that “videographers, editor production assistants, video editors, [and]

photo editors” were employees under Borello).

2

from the control and direction of the hirer in connection with the performance of the work,” (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 of the same nature as the work performed for

the hiring entity.” Id. at 916-917.

In 2019, the Legislature enacted A.B. 5, which

codified the Dynamex ABC test for wage orders and

expanded it to provisions of California’s Labor and Unemployment Insurance Codes. See 2019 Cal. Stat.

2888-2899. The purpose of A.B. 5 was to ensure that

workers were not “misclassified as independent contractors instead of recognized as employees [who] have

the basic rights and protections they deserve under

the law[.]” Id. at 2890. But A.B. 5 “did not apply

Dynamex across the board[.]” Pet. App. A-7. It provided that certain workers were exempt from the ABC

test and would remain subject to the Borello test. See

id. at A-7-8. In deciding which types of work would be

subject to exemptions, the Legislature considered a

range of factors, including “the workers’ historical

treatment as employees or independent 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 the

clients.” Pet. App. A-22 (citing Cal. S. Comm. on Labor,

Pub. Emp’t & Ret., Analysis of A.B. 5 (July 10, 2019)).

Under exemptions adopted by the Legislature, for example, the Borello test continues to apply to certain

licensed professionals (such as doctors and lawyers),

Cal. Labor Code § 2783(b), (c), “commercial fisher[s]”

working on American vessels, id. § 2783(g), and home

inspectors, id. § 2778(c)(2); see also id. §§ 2776-2784

(additional exemptions).

3

This case concerns the exemption in California Labor Code Section 2778. That statute directs that the

Borello test continues to apply to workers who are

party “to a contract for ‘professional services,’” Cal. Labor Code § 2778(a), and who meet certain additional

criteria, including the ability to set their own rates

and maintain a business location “that is separate

from the hiring entity,” id. § 2778(a)(1), (3). As defined

by the statute, workers who provide “professional services” include, for example, marketing professionals,

id. § 2778(b)(2)(A), human resources administrators,

id. § 2778(b)(2)(B), travel agents, id. § 2778(b)(2)(C),

graphic designers, id. § 2778(b)(2)(D), and licensed

barbers and cosmetologists, id. § 2778(b)(2)(L). Of

particular relevance here, the “professional services”

category also includes workers providing services as “a

freelance writer, translator, editor, copy editor, illustrator, or newspaper cartoonist,” provided that certain

criteria are met. Id. § 2778(b)(2)(J); see also id.

§ 2778(b)(2)(I)(i) (similar provision for “still photographer, photojournalist, videographer, or photo editor”);

id. § 2778(b)(2)(K) (similar provision for “content contributor, advisor, producer, narrator, or cartographer

for a journal, book, periodical, evaluation, [or] other

publication”). As originally enacted, those additional

criteria included submitting fewer than 35 pieces of

work to a single entity in a given year. 2019 Cal. Stat.

2893.

The Legislature amended the “professional services” exemption in 2020 (after petitioners filed this

lawsuit and after the district court granted the State’s

motion to dismiss, see infra p. 4). 2020 Cal. Stat. 18421843. The 2020 amendment eliminated the 35-submission limit. Id. Instead, it provided that the professional services exemption applies to designated

freelance workers who satisfy the general criteria and

4

who “work[] under a written contract that specifies

the rate of pay, intellectual property rights, and obligation to pay by a defined time.” Cal. Labor Code

§ 2778(b)(2)(J); see also id. § 2778(b)(2)(I)(i) (similar);

id. § 2778(b)(2)(K) (similar). But the exemption does

not apply if the worker (1) “directly replac[ed]” an

employee who performed the same work at the same

volume for the hiring entity, (2) “primarily perform[s]

the work at the hiring entity’s business location,” and

(3) is “restricted from working for more than one hiring entity.” E.g., id. § 2778(b)(2)(J). The statute also

specifies that the exemption does not apply to photographers,

videographers,

and

certain

other

professionals who work on “motion pictures.” Id.

§ 2778(b)(2)(I)(i).

2. Petitioners are two organizations that represent freelance writers and “visual journalists.” Pet.

App. G-4-5. They filed this lawsuit shortly after the

Legislature enacted A.B. 5. Id. at G-22. Their complaint alleged that A.B. 5 violated the First Amendment and the Equal Protection Clause by treating

individuals differently based on whether they worked

on motion pictures and whether they submitted 35 or

more pieces of work a year to a single entity. Id. at G13-20. After denying petitioners’ motion for a preliminary injunction, id. at D-1-32, the district court

granted the State’s motion to dismiss and entered a

final judgment, see id. at A-9, B-1-3, C-1-6.

While petitioners’ appeal of that judgment was

pending, the Legislature amended the professional

services exemption to A.B. 5. See supra p. 3. After

concluding that the amendment did not moot the appeal, Pet. App. A-11 n.5, the court of appeals affirmed

the district court’s judgment in a unanimous opinion

5

written by Judge Callahan and joined by Judge Forrest and Judge Seeborg (sitting by designation). Pet.

App. A-1-24.

The court of appeals rejected petitioners’ argument

that Section 2778 is an impermissible “content-based

preference[] for certain kinds of speech.” Pet. App. A13. The court reasoned that Section 2778 “regulates

economic activity rather than speech.” Id. at A-14. It

“does not, on its face, limit what someone can or cannot communicate” or “restrict when, where, or how

someone can speak.” Id. Instead, it “governs worker

classification by specifying whether Dynamex’s ABC

test or Borello’s multi-factor analysis applies to given

occupations under given circumstances.” Id. Because

the decision about which test to apply “does not turn

on what workers say but, rather, on the service they

provide or the occupation in which they are engaged,”

the court concluded that Section 2778 does not “impose content-based burdens on speech.” Id. at A-18.

The court acknowledged that applying the ABC test to

some freelancers might “make it more likely that some

of [petitioners’] members are classified as employees,”

which could potentially “mean fewer overall job opportunities for workers, among them certain ‘speaking’

professionals.” Id. at A-15. But the court held that

such “an indirect impact on speech” did not violate the

First Amendment. Id. It further reasoned that Section 2778 does not violate the First Amendment because it does not “target certain types of speech” or

“the press or a few speakers,” but instead “applies

across California’s economy.” Id. at A-16.

The court of appeals also rejected petitioners’ argument that applying the ABC test to some freelancers

working on motion pictures violated the First Amend-

6

ment by “burden[ing] the right to film matters of public interest.” Pet. App. A-19-20. The court reasoned

that “‘motion pictures’ refers to an industry or medium

through which content is conveyed, and such distinctions do not typically implicate the First Amendment.”

Id. at A-20; see id. (citing Turner Broadcasting System,

Inc. v. FCC, 512 U.S. 622, 660 (1994), for its observation that “‘the fact that a law singles out a certain

medium . . . is insufficient by itself to raise First

Amendment concerns’”).

Finally, applying rational basis review, the court of

appeals rejected petitioners’ equal protection claim.

Pet. App. A-20-24. The court recognized that “California weighed several factors” in determining “whether

and under what conditions Dynamex’s ABC test”

should apply to a class of workers, including whether

the workers had historically been treated as employees or independent contractors, how central their task

was to the hiring business, and the relationship between the workers and the business’s clients. Id. at A21-22. The court reasoned that “[i]t is certainly conceivable that differences between occupations warrant

differently contoured rules for determining which employment test better accounts for a worker’s status,”

and it is “also conceivable that misclassification was

more rampant in certain industries and therefore deserving of special attention.” Id. at A-22. “And even if

California could have better addressed misclassification some other way, or with greater precision, the

Equal Protection Clause does not require it.” Id.

Petitioners sought rehearing en banc. No judge of

the court of appeals requested a vote on whether to

hear the case en banc. See Pet. App. E-1-2. Petitioners then filed this petition for a writ of certiorari

focused exclusively on First Amendment issues.

7

ARGUMENT

Petitioners’ principal claim is that California Labor

Code Section 2778 is an impermissible content-based

restriction on speech. But Section 2778 does not restrict speech or differentiate between speakers based

on their message. It regulates economic activity:

directing which of two tests applies to determine

whether particular workers are employees or independent contractors for purposes of state labor and

employment laws. As the court of appeals correctly

held, the statute’s application of different tests for determining employment status for different categories

of workers does not violate the First Amendment. Section 2778 “does not turn on what workers say, but,

rather, on the service they provide or the occupation

in which they are engaged.” Pet. App A-18. The decision below is consistent with this Court’s precedents

and does not create any conflict with other lower court

authority. There is no need for further review.

1. Petitioners first argue that this Court should

grant certiorari to consider whether Section 2778 is

content-based. Pet. 17-24. But they fail to support

their assertion that the decision below “conflict[s] with

decisions of this Court,” Pet. 17, or to identify any

other persuasive reason for plenary review.

a. Laws that “restrict expression because of its

message, its ideas, its subject matter, or its content”

are “presumptively unconstitutional and may be

justified only if the government proves that they are

narrowly tailored to serve compelling state interests.”

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). A

“regulation of speech is content based if [it] applies to

particular speech because of the topic discussed or the

idea or message expressed.” Id. To determine

whether a law is content-based, courts consider

8

whether it “defin[es] regulated speech by particular

subject matter” or “by its function or purpose.” Id.

This Court has also recognized a distinction between “restrictions on protected expression” and “restrictions on economic activity[.]” E.g., Sorrell v. IMS

Health Inc., 564 U.S. 552, 567 (2011). While the First

Amendment “may prohibit the former, it ‘does not prevent restrictions directed at commerce or conduct from

imposing incidental burdens on speech.’” Pet. App. A13 (quoting Sorrell, 564 U.S. at 567). The Court has

held, for example, that it is “beyond dispute that the

States and the Federal Government can subject newspapers to generally applicable economic regulations

without creating constitutional problems.” Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue,

460 U.S. 575, 581 (1983). And it has rejected First

Amendment challenges to a wide range of generallyapplicable laws that cover speech-based professionals

and businesses, including laws regulating the media.

See Okla. Press Publ’g Co. v. Walling, 327 U.S. 186,

192-194 (1946) (wage regulation); Associated Press v.

NLRB, 301 U.S. 103, 130-133 (1937) (labor law); Associated Press v. United States, 326 U.S. 1, 19-20 (1945)

(antitrust law), Leathers v. Medlock, 499 U.S. 439,

447-449 (1991) (taxes).

Here, the court of appeals correctly determined

that Section 2778 “regulates economic activity rather

than speech.” Pet. App. A-14. As Judge Callahan explained, the statute does not “limit what someone can

or cannot communicate” or “restrict when, where, or

how someone can speak.” Id. Instead, it specifies

which of two tests—“Dynamex’s ABC test or Borello’s

multi-factored analysis”—will apply to determine

whether a particular worker is classified as an

employee or an independent contractor for purposes of

9

certain state labor and employment laws. Id. While

the applicable test will “vary based on the nature of

the work performed or the industry in which the work

is performed,” that is no different from many other

employment-based rules. Id. Indeed, federal employment regulations draw distinctions similar to those

challenged here. Id. at A-14 n.6 (citing 29 C.F.R.

Subpt. D).

Nor does Section 2788 “target certain types of

speech and thereby raise the specter of government

discrimination.” Pet. App. A-16 (discussing Minneapolis Star & Tribune Co., 460 U.S. at 578-579). It

merely “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.” Id. Freelance writers and

photographers who are subject to the ABC test are not

in any sense “uniquely burdened” by this system. Id.

at A-17. To the contrary, the same test applies to

“many occupations,” while some other workers fall

within statutory exemptions calling for the application of the Borello test. Id. at A-16-17; supra pp. 2-3.

As the court of appeals recognized, Section 2778 is “not

rendered generally inapplicable just because” certain

categories of workers are subject to a different test.

Pet. App. A-17. Almost every law setting out a generally applicable policy or requirement contains certain

exemptions or exceptions. See, e.g., Okla. Press, 327

U.S. at 193 (noting the Fair Labor Standards Act’s exemption for “seamen, farm workers and others”);

Leathers, 499 U.S. at 442, 447 (noting exemptions

from Arkansas’s sales tax).

b. Petitioners argue that the decision below conflicts with this Court’s decision in Reed, which in petitioners’ view compels the conclusion that Section 2778

10

is content-based. Pet. 17-18. But petitioners misunderstand this Court’s precedent.

Reed addressed the constitutionality of a local ordinance that regulated the size, timing, and location

of signs according to whether the message on the sign

was “[i]deological,” “[p]olitical,” “[d]irectional,” or for

another purpose. 576 U.S. at 159-161. That ordinance

was “content based on its face,” because the speech restrictions that applied to any given sign “depend[ed]

entirely on the communicative content of the sign.” Id.

at 164. For example, the signs that gave rise to the

dispute in Reed “invit[ed] people to attend . . . worship

services” and were “treated differently from signs conveying other types of ideas.” Id.

Section 2778 presents no similar concern. It does

not restrict speech, see supra p. 8, nor does it differentiate between speakers based on their message. As the

court of appeals recognized, the application of different tests for employment status under Section 2778

“does not turn on what workers say, but, rather, on the

service they provide or the occupation in which they

are engaged.” Pet. App. A-18.

Petitioners disagree, arguing that “[w]hether a

freelancer’s work falls within Section 2778’s exemptions for marketing, graphic design, grant writing,

fine art, or speech related to sound recordings and musical compositions ‘depends entirely on its communicative content.’” Pet. 18 (quoting Reed, 576 U.S. at 164)

(brackets omitted). That is incorrect. Under the professional services exemption, most freelancers who

meet the general criteria in subsection (a) (see supra

p. 3) are subject to the Borello test, see Cal. Labor Code

§ 2778(b)(2)(J), just like people who work in marketing,

see id. § 2778(b)(2)(A), graphic design, see id.

§ 2778(b)(2)(D), grant writing, see id. § 2778(b)(2)(E),

11

and so forth. The only freelancers who do not qualify

for that exemption are certain visual artists who work

on “motion pictures” (regardless of content), see id.

§ 2778(b)(2)(I)(i), and freelancers who replace certain

employees under particular conditions (again, regardless of the content of their expressive work), see, e.g.,

id. § 2778(b)(2)(J). The inquiry into how these provisions apply to a particular worker does not focus on

“‘the content of a worker’s message’” (Pet. 17) but instead typically examines other factors, such as the

terms of the worker’s contract, the nature of the work,

the job title, and the type of industry. See, e.g., Cal.

Labor Code § 2778(a), (b)(2)(A)-(O). 3

Moreover, as the court of appeals noted, even assuming that Section 2778 did entail some consideration of a worker’s speech to determine what particular

subsection applies, that would not make the statute

content-based. See Pet. App. A-18 n.8. Even laws that

directly regulate speech “may require some evaluation

of the speech and nonetheless remain content neutral.”

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

No. 20-1029, slip op. at 8-9 (U.S. Apr. 21, 2022) (discussing solicitation regulations). This Court has

squarely rejected the argument “that any examination

of speech or expression inherently triggers heightened

3 Petitioners

are also incorrect in suggesting (at 18) that the

Borello test applies to all those working in “marketing, graphic

design, grant writing,” and the like. As noted above, under the

general provisions of the professional services exemption, that

test applies only to workers who both provide those services and

meet certain criteria, including (for example) retaining the “ability to set or negotiate their own rates for the services performed,”

Cal. Labor Code § 2778(a)(3), and maintaining a “business location . . . that is separate from the hiring entity,” id. § 2778(a)(1);

see supra p. 3.

12

First Amendment concern.” Id. at 10. And that conclusion surely applies with even greater force to an

economic regulation like Section 2778, which does not

directly regulate any speech at all. See supra pp. 8-9.

City of Austin also forecloses petitioners’ assertion

that Section 2778 is content-based because it “target[s]

the ‘function or purpose’ of speech[.]” Pet. 18. (quoting

Reed, 576 U.S. at 163). 4 Reed observed that governments may impose content-based restrictions on

speech through “subtle” means that “defin[e] regulated speech by its function or purpose.” 576 U.S. at

163. But as City of Austin clarified, that observation

“does not mean that any classification that considers

function or purpose is always content based.” City of

Austin, slip op. at 11. Instead, it stands for the

“straightforward” principle that a speech regulation

cannot “escape classification as facially content based

simply by swapping an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the

same result.” Id. In both scenarios, the relevant question is whether distinctions are “drawn based on the

message a speaker conveys.” Reed, 576 U.S. at 163164. Here, petitioners have never argued that the purpose of Section 2778 is to distinguish between workers

based on the “communicative content,” id. at 164, of

their messages. 5

4 Because City of Austin is consistent with the decision below,

there is no basis for the Court to grant, vacate, and remand in

light of that opinion, as some of petitioners’ amici have suggested.

See Br. of Independent Institute, et al. 4, 20-24.

5 Petitioners also assert without elaboration that the decision below conflicts with this Court’s decision in Sorrell. Pet. 20. It does

not. The statute in Sorrell disfavored both “speech with a particular content” and “specific speakers” by barring any disclosure of

13

c. Petitioners next argue that review is warranted

because “the circuit courts conflict” over the application of “Reed’s function or purpose test.” Pet. 24. That

argument is not persuasive.

To begin with, petitioners fail to establish that any

real conflict exists. Most of the circuit cases cited by

petitioners (at 21-24) are fact-intensive applications of

Reed’s general principle: that regulations on speech

are content-based when they “target speech based on

its communicative content,” whether by “defining regulated speech by particular subject matter” or “by its

function or purpose.” Reed, 576 U.S. at 163. 6 The remaining case, Texas Entertainment Ass’n, Inc. v.

Hegar, 10 F.4th 495 (5th Cir. 2021), petition for cert.

pending, No. 21-1258 (filed Mar. 14, 2022), applied

this Court’s precedents instructing that restrictions on

“prescriber-identifying information” when used for certain purposes. Sorrell, 564 U.S. at 564. Moreover, in its “practical operation,” that statute went “beyond mere content discrimination, to

actual viewpoint discrimination.” Id. at 565. Section 2778 presents no comparable concerns.

6 Compare Cahaly v. Larosa, 796 F.3d 399, 404-405 (4th Cir. 2015)

(law barring robocalls “with a consumer or political message,” but

not others, is content based), with Bruni v. City of Pittsburgh, 941

F.3d 73, 84-88 (3d. Cir. 2019) (restrictions based on manner in

which expressive activity occurs not content based), cert. denied,

141 S. Ct. 578 (2021), March v. Mills, 867 F.3d 46, 53-64 (1st Cir.

2017) (restriction based on noise level not content based), cert.

denied, 138 S. Ct. 1545 (2018), Fort Lauderdale Food Not Bombs

v. City of Fort Lauderdale, 11 F.4th 1266, 1292-1294 (11th Cir.

2021) (prohibition on providing food, clothing, shelter, or medical

care in public parks not content based), and Harbourside Place,

LLC v. Town of Jupiter, 958 F.3d 1308, 1318-1322 (11th Cir. 2020)

(district court did not abuse discretion in concluding that plaintiffs were unlikely to succeed on claim that a prohibition on “live

musical performances” was content based because the ordinance

allowed the playing of “recorded music of any kind”).

14

nude dancing are content-neutral if the record shows

that the “governmental purpose in enacting the regulation is unrelated to the suppression of expression[.]”

Id. at 509 (emphasis omitted) (quoting City of Erie v.

Pap’s A.M., 529 U.S. 277, 289 (2000)).

Even if this Court did perceive a conflict between

those cases, however, it would not warrant plenary review in this case or at this time. Unlike this case,

those cases involved First Amendment challenges to

laws that directly regulated expressive conduct. See

supra pp. 8-9, 13 & n.5. Moreover, last month’s decision in City of Austin extensively discussed the “function or purpose” language from Reed that petitioners

say was causing confusion in the lower courts. See

supra pp. 11-12. To the extent there was any genuine

confusion on that issue, it should be eliminated by the

Court’s recent guidance; at a minimum, further percolation would be appropriate before this Court offers

still more guidance on that “straightforward” principle.

City of Austin, slip op. at 11.

2. Petitioners also argue that this Court should

grant review “to hold that exemptions to economic regulations that significantly burden speech” must receive “heightened scrutiny” under the First

Amendment. Pet. 28; see also id. at 27 (asking the

Court to “clearly define[] when a burden is incidental

and when a law is an ordinary economic and social regulation”). That argument does not provide a persuasive basis for plenary review either. 7

7 Petitioners did not squarely raise this argument in the lower

courts. Instead, they argued that the differential burdens imposed by Section 2778 were impermissible because they “single

out journalism for especially harsh treatment and because they

evince a content preference against freelance journalism.” C.A.

15

The court of appeals observed that Section 2778

might “make it more likely that some of [petitioners’]

members are classified as employees” instead of independent contractors, which could result in “fewer overall job opportunities for . . . certain ‘speaking’

professionals.” Pet. App. A-15. But even assuming

that the classification of a worker as an employee instead of an independent contractor might burden the

worker’s First Amendment rights to some degree, see

Pet. 27, “every civil and criminal remedy imposes

some conceivable burden on First Amendment protected activities,” Pet. App. A-15 (quoting Arcara v.

Cloud Books, Inc., 478 U.S. 697, 706 (1986)). And as

petitioners acknowledge, this Court has consistently

held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Pet. 25 (quoting

Nat’l Inst. of Family & Life Advocates v. Becerra, 138

S. Ct. 2361, 2373 (2018)). Here, the court of appeals

properly held that Section 2778 “fits within this line of

cases because it regulates economic activity rather

than speech” and its impact on speech is (at most) “indirect.” Pet. App. A-14, A-15.

Petitioners concede that their challenge “does not

fit perfectly into rules established in prior cases” decided by this Court. Pet. 27. And the cases they

attempt to invoke in support of their argument (see id.

at 28-29) are not on point. In United States v. National

Dkt. 7-1 at 17 (opening brief); see also C.A. Dkt. 41 at 14 (reply

brief, arguing that Section 2778 violates the First Amendment

because it imposes “restrictions only on unfavored speech”); Pet.

App. A-13 (court of appeals’ opinion, describing petitioners’ claim

in similar terms); id. at D-17 (district court opinion); id. at G-1720 (complaint); D. Ct. Dkt. 37 at 5-11 (petitioners’ opposition to

motion to dismiss).

16

Treasury Employees Union, 513 U.S. 454 (1995), the

Court addressed a law that “single[d] out expressive

activity” by prohibiting federal employees from accepting compensation for making speeches or writing articles. Id. at 475. Section 2778 does not prohibit any

speech and “does not target the press or a few speakers.” Pet. App. A-16. The Court’s decisions in Forsyth

County v. Nationalist Movement, 505 U.S. 123 (1992),

and Thomas v. Chicago Park District, 534 U.S. 316

(2002), both involved permitting schemes, which

raised the risk that government officials would “disfavor speech based on its content” when deciding

whether to grant or deny a particular permit. Thomas,

534 U.S. at 323 (citing Forsyth, 505 U.S. at 131). Section 2778, in contrast, does not “subject[] the exercise

of First Amendment freedoms to the prior restraint of

a license.” Forsyth, 505 U.S. at 131.

Finally, petitioners again fail to substantiate their

assertion that there is a “stark conflict” (Pet. 38) of

authority in the lower courts. Each of the lower court

decisions cited by petitioners (see id. at 31-38) agreed

with the court of appeals below that the First Amendment “‘does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on

speech.’” Pet. App. A-13. 8 It should not be surprising

8 See Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 613 (1st

Cir. 2021); Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir.

2021); Mo. Broads. Ass’n v. Schmitt, 946 F.3d 453, 458-459 (8th

Cir. 2020); Billups v. City of Charleston, 961 F.3d 673, 683-684

(4th Cir. 2020); Wright v. City of St. Petersburg, 833 F.3d 1291,

1295-1298 (11th Cir. 2016); The Pitt News v. Fisher, 215 F.3d 354,

366-367 (3d Cir. 2000); Hest Techs., Inc. v. State ex rel. Perdue,

366 N.C. 289, 300 (2012); Leydon v. Town of Greenwich, 257 Conn.

318, 336 n.22 (2001); Blue v. McBride, 252 Kan. 894, 921 (1993);

cf. Left Field Media LLC v. City of Chicago, 822 F.3d 988, 990

17

that some of those decisions held that the challenged

law imposed a (permissible) incidental burden on

speech, while others held that the challenged law was

an (impermissible) regulation of speech: the cases involved different types of laws, restricting a wide range

of activities. 9 In this case, as the court of appeals correctly held, Section 2778 plainly “regulates economic

activity rather than speech.” Id. at A-14. Petitioners

and their amici may disagree with the regulatory

choices made by the Legislature in Section 2778, but

they cannot establish that those choices are prohibited

by the First Amendment.

(7th Cir. 2016) (holding that restriction on peddling near Wrigley

Field was permissible “regulation of conduct” even though it

applied to some people who wanted to “express an idea”), cert.

denied, 137 S. Ct. 1065 (2017).

9 See, e.g., Comcast of Me./N.H., 988 F.3d at 609-610 (challenge

to requirement that cable operators offer “‘à la carte’” programming); Billups, 961 F.3d at 683-684 (challenge to ordinance “completely prohibit[ing] unlicensed tour guides from leading visitors

on paid tours”).

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

SAMUEL P. SIEGEL

JOSHUA A. KLEIN

Deputy Solicitors General

JOSE A. ZELIDON-ZEPEDA

Deputy Attorney General

May 23, 2022