Petition for Writ of Certiorari — Mobilize the Message, LLC, et al., Petitioners v. Rob Bonta, Attorney General of California

Supreme Court briefMar 8, 2023

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No. 22-________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MOBILIZE THE MESSAGE, LLC;

MOVING OXNARD FORWARD, INC.; AND

STARR COALITION FOR MOVING OXNARD FORWARD,

Petitioners,

ROB BONTA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------ALAN GURA

Counsel of Record

BRETT R. NOLAN

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

(202) 301-3300

agura@ifs.org

Counsel for Petitioners

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

California applies different work-classification

rules to canvassers depending on the subject, function,

and purpose of their speech. The state thus allows canvassers promoting consumer products and services to

work as independent contractors, but it classifies canvassers promoting political campaigns as employees

whose employment relationships are governed by more

onerous and expensive laws. Likewise, workers who

distribute or deliver state-designated newspapers and

related publications may work as independent contractors, while workers who deliver or distribute political

campaign material may not. The additional burdens

California places on political canvassing and the distribution of political material deny Petitioners the ability to hire independent contractors, and thus prevent

Petitioners from circulating ballot petitions and campaigning. The question presented is:

Whether regulating canvassing and the delivery of

printed material based on that speech’s content, function, or purpose implicates the First Amendment.

PARTIES TO THE PROCEEDING

Petitioners Mobilize the Message, LLC; Moving

Oxnard Forward, Inc.; and Starr Coalition for Moving

Oxnard Forward were plaintiffs in the district court

and appellants in the court of appeals.

Respondent Rob Bonta, in his official capacity as

Attorney General of California, was the defendant in

the district court and appellee in the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Mobilize the Message, LLC, is a Florida limited liability company that has no parent company, and no

publicly held company owns 10% or more of its stock.

Moving Oxnard Forward, Inc., is a California nonprofit corporation that has no parent company, and no

publicly held company owns 10% or more of its stock.

Starr Coalition for Moving Oxnard Forward is a

California political committee whose parent company

is petitioner Moving Oxnard Forward, Inc. No publicly

held company owns 10% or more of its stock.

iii

STATEMENT OF RELATED PROCEEDINGS

United States District Court (C.D. Cal.):

Mobilize the Message v. Bonta, No. 2:21-cv-05115VAP-JPR (order denying motion for preliminary injunction issued August 9, 2021).

Mobilize the Message v. Bonta, No. 2:21-cv-05115VAP-JPR (order staying proceedings pending appeal

issued September 17, 2021).

United States Court of Appeals (9th Circuit):

Mobilize the Message v. Bonta, No. 21-55855 (reported at 50 F.4th 928) (judgment entered October 11,

2022).

Mobilize the Message v. Bonta, No. 21-55855 (order

denying petition for rehearing en banc issued January

17, 2023).

Mobilize the Message v. Bonta, No. 21-55855 (order

staying mandate pending certiorari issued January 20,

2023).

TABLE OF CONTENTS

Page

Question Presented .............................................

Parties to the Proceeding .....................................

Corporate Disclosure Statement .........................

Statement of Related Proceedings .......................

iii

Table of Authorities ............................................. vii

Petition for a Writ of Certiorari...........................

Introduction .........................................................

Opinions Below ....................................................

Jurisdiction ..........................................................

Pertinent Constitutional Provisions and Statutes.....

Statement of the Case .........................................

California’s selective crackdown on

independent contracting discriminates

against political speech .............................

Petitioners rely on independent contractors

to qualify ballot measures and run election

campaigns ..................................................

California’s discrimination against political

speech silences Petitioners ......................... 10

Procedural history ..................................... 11

Reasons for Granting the Petition ....................... 14

The Ninth Circuit’s decision conflicts with

this Court’s precedent ............................... 16

A. Function or purpose distinctions cannot

mask content-based discrimination ...... 16

TABLE OF CONTENTS—Continued

Page

B. Austin did not overrule Reed ............... 20

II.

The courts of appeals are divided on the

question presented .................................... 23

III. This case presents an ideal vehicle to resolve

an exceptionally important question............. 25

Conclusion............................................................ 28

Appendix

Appendix A

Opinion, United States Court of Appeals for the

Ninth Circuit, Mobilize the Message, LLC v.

Bonta, No. 21-55855 (Oct. 11, 2022) .......................1a

Appendix B

Order, United States District Court for the Central District of California, Mobilize the Message, LLC v. Bonta, No. 2:21-cv-05115-VAPJPRx (Aug. 9, 2021) ...............................................30a

Appendix C

Order Denying Petition for Rehearing En Banc,

United States Court of Appeals for the Ninth

Circuit, Mobilize the Message, LLC v. Bonta,

No. 21-55855 (Jan. 17, 2023).................................42a

Appendix D

Order Staying Mandate Pending Certiorari,

United States Court of Appeals for the Ninth

Circuit, Mobilize the Message, LLC v. Bonta,

No. 21-55855 (Jan. 20, 2023).................................44a

TABLE OF CONTENTS—Continued

Page

Appendix E

Order, United States District Court for the Central District of California, Mobilize the Message, LLC v. Bonta, No. 2:21-cv-05115-VAPJPRx (Sept. 17, 2021) ............................................45a

Appendix F

U.S. Const. amend. I .................................................57a

U.S. Const. amend. XIV, § 1 ......................................57a

Cal. Gov’t Code § 6000 ..............................................57a

Cal. Gov’t Code § 6008 ..............................................58a

Cal. Lab. Code § 2775 ...............................................59a

Cal. Lab. Code § 2783(e) ...........................................61a

Cal. Lab. Code § 2783(h) ...........................................61a

Cal. Lab. Code § 2787 ...............................................64a

Cal. Unemp. Ins. Code § 650 ....................................64a

Appendix G

Declaration of Justin Griess in Support of Plaintiffs’ Motion for Preliminary Injunction (filed

June 24, 2021) .......................................................66a

Appendix H

Declaration of Aaron Starr in Support of Plaintiffs’ Motion for Preliminary Injunction (filed

June 24, 2021) .......................................................71a

vii

TABLE OF AUTHORITIES

Page

CASES

Aptive Envtl., LLC v. Town of Castle Rock, 959

F.3d 961 (10th Cir. 2020) ................................... 23, 24

Barr v. Am. Ass’n of Political Consultants, 140

S. Ct. 2335 (2020) ....................................................18

Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) ..........24

Cincinnati v. Discovery Network, 507 U.S. 410

(1993) ........................................................... 18, 19, 23

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

142 S. Ct. 1464 (2022) ....... 2, 13, 14, 16, 17, 20-22, 27

Dynamex Operations West, Inc. v. Superior Court,

4 Cal. 5th 903 (2018) ........................................... 5, 12

Elrod v. Burns, 427 U.S. 347 (1976) ...........................25

Eu v. S.F. Cnty. Democratic Cent. Comm., 489

U.S. 214 (1989) ........................................................26

Fort Lauderdale Food not Bombs v. City of Fort

Lauderdale, 11 F.4th 1266 (11th Cir. 2021) ...........25

Harbourside Place, LLC v. Town of Jupiter, 958

F.3d 1308 (11th Cir. 2020) .......................................25

Lovell v. Griffin, 303 U.S. 444 (1938) .................. 19, 20

March v. Mills, 867 F.3d 46 (1st Cir. 2017) .............24

Martin v. Struthers, 319 U.S. 141 (1943) ........... 19, 26

Meyer v. Grant, 486 U.S. 414 (1988) ...........................27

Police Dep’t of Chicago v. Mosley, 408 U.S. 92

(1972) .........................................................................1

viii

TABLE OF AUTHORITIES—Continued

Page

Reed v. Town of Gilbert, 576 U.S. 155 (2015) .... 2, 3, 16,

................................................................ 19, 20-25, 27

Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63

(2020) .......................................................................25

S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 48 Cal. 3d 341 (1989)......................... 5, 7, 8, 12

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .........16

Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Vill. of Stratton, 536 U.S. 150 (2002) .......... 19, 26, 27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ................. 1, 3, 4, 11-17, 20, 22-27

U.S. Const. amend. XIV, § 1 ..........................................4

STATUTES

28 U.S.C. § 1254(1) ........................................................3

Cal. Bus. & Prof. Code § 7451.....................................27

Cal. Gov’t Code § 6000 .............................................. 4, 7

Cal. Govt. Code § 6008 .............................................. 4, 7

Cal. Lab. Code § 246 .....................................................4

Cal. Lab. Code § 2775 ............................................. 4, 12

Cal. Lab. Code § 2775(b)(1) ..........................................5

Cal. Lab. Code § 2775(b)(3) ..........................................8

Cal. Lab. Code § 2783(e) ........................................... 4, 6

Cal. Lab. Code § 2783(h) ...............................................4

TABLE OF AUTHORITIES—Continued

Page

Cal. Lab. Code § 2783(h)(1) ..........................................7

Cal. Lab. Code § 2783(h)(2)(A) .....................................7

Cal. Lab. Code § 2783(h)(2)(C) .....................................7

Cal. Lab. Code § 2783(h)(2)(D) .....................................7

Cal. Lab. Code § 2787 ............................................... 4, 8

Cal. Lab. Code § 3700 ...................................................4

Cal. Unemp. Ins. Code § 650 .................................... 4, 6

Cal. Unemp. Ins. Code § 650(a) ...................... 18, 22, 23

Cal. Unemp. Ins. Code § 650(b) ..................................18

Cal. Unemp. Ins. Code § 650(c) ..................................18

Cal. Unemp. Ins. Code § 13020 ....................................4

Cal. Unemp. Ins. Code § 13021 ....................................4

OTHER AUTHORITIES

Bill Swindell, Legislature passes one-year exemption for newspaper carriers from AB 5,

The Press Democrat, Sep. 1, 2020,

https://bit.ly/3gVc0Aq ...............................................7

Direct Selling Association Applauds Direct

Seller Exemption in California AB 5, Sep. 26,

2019, https://bit.ly/3xOArGF ....................................6

PETITION FOR A WRIT OF CERTIORARI

Mobilize the Message, LLC; Moving Oxnard Forward, Inc.; and Starr Coalition for Moving Oxnard Forward respectfully petition for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

---------------------------------♦---------------------------------

INTRODUCTION

This Court’s decisions leave no doubt that a state

“has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police

Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (citations omitted). But California purportedly devised a

workaround bypassing this precedent, enabling the

state to discriminate against speech whose content,

function, or purpose—urging the qualification of ballot

measures and swaying political campaigns—rests at

the First Amendment’s core. The impact on California’s democracy is severe.

California’s trick is to reimagine speech serving a

particular function or purpose as a discrete economic

activity. It claims that speakers performing identical

tasks and providing identical services nonetheless play

different economic roles based solely on their speech’s

distinct commercial or political messages. Contentbased speech regulation, which must satisfy strict

First Amendment scrutiny, is thereby transformed into

mere economic regulation, which does not implicate

the right to free speech at all.

The state thus maintains relaxed rules for canvassing about consumer products, but tightly regulates

canvassing about politics. It makes the delivery of

shopping guides cheap, but renders the delivery of voting guides cost-prohibitive. And the state justifies this

discrimination by positing that doorknockers who encourage residents to sign sales contracts would perform a completely different job if they encouraged the

same people to sign ballot petitions, just as workers

who deliver voting guides are engaged in a completely

different occupation than those who deliver shopping

guides. After all, the legislature has decreed that these

are different occupations, which it can regulate differently. It might only be coincidental that commercial

speech does not challenge legislators and their interests the way that political speech does.

Only last term, this Court warned against such

reasoning. “[A] regulation of speech 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.” City of

Austin v. Reagan Nat’l Advert. of Austin, LLC, 142

S. Ct. 1464, 1474 (2022). But the Ninth Circuit reads

Austin in a manner that practically overrules Reed v.

Town of Gilbert, 576 U.S. 155 (2015), allowing courts

carte blanche to disregard content-based distinctions.

Breaking from the Tenth Circuit, the Ninth Circuit

approved of explicit content-based discrimination in

regulating door-to-door speech and the delivery of

printed material. These irreconcilable decisions are

part of a wider split separating circuits that implement

Reed’s function or purpose test from those that do not.

This Court has always recognized the First

Amendment primacy of political canvassing. Given the

outsized importance that such speech plays in the

basic functioning of our democracy, the Ninth Circuit’s

abandonment of protection from content-based discrimination in this context and the circuit split it implicates merits this Court’s review.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Ninth Circuit’s opinion, App.1a-29a, is reported at 50 F.4th 928. The Ninth Circuit’s order denying the petition for rehearing en banc, App.42a-43a,

is not reported. The Ninth Circuit’s order staying the

mandate, App.44a, is not reported. The district court’s

opinion denying Petitioners’ motion for a preliminary

injunction, App.30a-41a, is not reported. The district

court’s opinion and order staying the case, App.45a56a, is not reported.

---------------------------------♦---------------------------------

JURISDICTION

The court of appeals entered its judgment on October 11, 2022. On January 17, 2023, the court of appeals denied Petitioners’ timely petition for rehearing

en banc. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

---------------------------------♦---------------------------------

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES

The First Amendment, and Section 1 of the Fourteenth Amendment; Cal. Govt. Code §§ 6000 and 6008;

Cal. Lab. Code §§ 2775, 2783(e), 2783(h), and 2787; and

Cal. Unemp. Ins. Code § 650, appear at App.57a-65a.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. California’s selective crackdown on independent contracting discriminates

against political speech.

1. The ability to hire a worker often turns on

whether that worker can be classified as an independent contractor rather than as an employee. In California, as elsewhere, an employer’s control over an

“employee” comes at great cost, including workers’

compensation insurance, Cal. Lab. Code § 3700; sick

leave, Cal. Lab. Code § 246; and unemployment insurance taxes, Cal. Unemp. Ins. Code §§ 13020, 13021.

Employers also face additional payroll expenses when

hiring employees and may also be more readily susceptible to tort claims arising from their employees’ conduct, thus incurring additional insurance costs.

Workers, too, might prefer to work as independent contractors. From their perspective, formal employment

may include certain benefits, but often carries a significant cost in loss of freedom and flexibility over one’s

working hours and conditions.

California once classified workers as either employees or independent contractors under a multifactor balancing test set forth in S.G. Borello & Sons, Inc.

v. Dep’t of Indus. Relations, 48 Cal. 3d 341 (1989). But

in 2018, California’s Supreme Court discarded Borello

in favor of a more restrictive “ABC” test to determine

workers’ classification when applying state wage orders. The ABC test presumptively classifies workers as

employees, unless the hiring entity establishes each of

three so-called “ABC” factors. Dynamex Operations

West, Inc. v. Superior Court, 4 Cal. 5th 903, 955-56

(2018).

In Dynamex’s wake, California’s legislature enacted Assembly Bill 5 (“AB 5”), which codified Dynamex’s application of the ABC test to wage orders and

extended the ABC test’s application, including its presumptive denial of independent contractor status, to

the entirety of California’s Labor and Unemployment

Insurance Codes. Cal. Lab. Code § 2775(b)(1).

But AB 5 also enacted myriad exemptions for

workers who would be governed by the more-lenient

Borello test for all purposes. Subsequent legislation enacted additional Borello exemptions to the ABC test.

The classification regime remains a subject of legislative activity, as the state continues extending and modifying its exemptions.

This case concerns two exemptions from the ABC

test.

2a. Among the alleged occupations that “shall be

governed by Borello” rather than the ABC test is that

of “[a] direct sales salesperson as described in Section

650 of the Unemployment Insurance Code, so long as

the conditions for exclusion from employment under

that section are met.” Cal. Lab. Code § 2783(e). The referenced section provides that “[e]mployment does not

include services performed as a . . . direct sales salesperson” if “(a) [t]he individual . . . is engaged in the

trade or business of primarily in person demonstration

and sales presentation of consumer products, including

services or other intangibles, in the home. . . .”; “(b)

[s]ubstantially all of the remuneration (whether or not

paid in cash) for the services performed by that individual is directly related to sales or other output (including the performance of services) rather than to the

number of hours worked by that individual”; and (c)

the worker and hiring entity agree in writing to treat

the worker as an independent contractor for tax purposes. Cal. Unemp. Ins. Code § 650.

The Direct Selling Association “work[ed]” with AB

5’s sponsor to enact this exemption, and understands

that it provides “that direct sellers are clearly and specifically independent contractors.” Direct Selling Association Applauds Direct Seller Exemption in California

AB 5, Sep. 26, 2019, https://bit.ly/3xOArGF. Thus, a

canvasser who knocks on doors, and agrees to be paid

as an independent contractor by the visit or signed

agreement rather than by the hour, can work as an independent contractor—so long as the canvasser speaks

about “consumer products.” The same canvasser, also

paid by output rather than by time, who promotes political candidates or ballot measures, is presumptively

ineligible for independent contractor status under the

ABC test (and is unlikely to overcome that presumption).

2b. Newspaper distributors and carriers are

also exempt from the ABC test and instead subject to

Borello. Cal. Lab. Code § 2783(h)(1). “ ‘Newspaper distributor’ means a person or entity that contracts with

a publisher to distribute newspapers to the community,” id. § 2783(h)(2)(C), while “ ‘[n]ewspaper carrier’

means a person who effects physical delivery of the

newspaper to the customer or reader,” other than as an

app driver, id. § 2783(h)(2)(D).

But what is a “newspaper?” As used in this statute, the term includes various publications not commonly described that way, such as “shoppers’ guides,”

and excludes any newspaper catering to particular,

non-local topics. See id. § 2783(h)(2)(A). Ballot petitions and campaign literature do not qualify, as these

are not distributed “periodically at . . . short intervals,

for the dissemination of news of a general or local character and of a general or local interest,” id., nor do they

otherwise meet the “newspaper” tests of Cal. Gov’t

Code §§ 6000 and 6008.

Allowing some “newspapers” to classify their carriers as independent contractors saves their industry

at least $80 million a year. Bill Swindell, Legislature

passes one-year exemption for newspaper carriers

from AB 5, The Press Democrat, Sep. 1, 2020,

https://bit.ly/3gVc0Aq. Political campaigns enjoy no

such advantage when hiring workers to deliver printed

matter to the voters.

3. AB 5 contains a severability provision. Cal.

Lab. Code § 2787. It further provides that if a court enjoins any application of the ABC test, Borello governs

in that context. Cal. Lab. Code § 2775(b)(3).

B. Petitioners rely on independent contractors to qualify ballot measures and

run election campaigns.

Petitioner Mobilize the Message, LLC (“MTM”)

hires doorknockers to canvass neighborhoods and personally engage voters at home on behalf of its client

campaigns. Their purpose is to seek support for and

gather feedback on political candidates and ballot

measures. App.67a, ¶ 1. MTM also hires signature

gatherers to persuade voters, at home and in public

places, to sign petitions qualifying measures for the

ballot. Id.

MTM hires doorknockers and signature gatherers

on an independent contractor basis, paying them based

on output rather than by time. Id. ¶ 2; App.68a, ¶ 7.

MTM pays doorknockers for reaching door milestones.

Signature gathering campaigns may target particular

areas to satisfy legal requirements, but gatherers may

gather signatures from anywhere within such boundaries and are paid per valid signature obtained.

App.67a-68a, ¶ 3.

Petitioner Moving Oxnard Forward, Inc. (“MOF”),

a California nonprofit corporation dedicated to improving Oxnard, California’s government, maintains a political action committee, petitioner Starr Coalition for

Moving Oxnard Forward, that creates, qualifies, and

through its efforts enacts ballot measures in Oxnard’s

municipal elections. Starr Coalition’s measures regularly appear on the ballot, and at times prevail.

App.72a, ¶¶ 1-2. As MOF and Starr Coalition’s purpose

is to effect political change by enacting ballot

measures, they depend on signature gatherers who

persuade voters, at home and in public places, to sign

petitions qualifying measures for the ballot. Id., ¶ 3.

MOF and Starr Coalition have historically hired

signature gatherers as independent contractors.

App.73a, ¶¶ 4, 7. Like MTM, MOF and Starr Coalition

paid these gatherers by the signature, not by the hour,

and exercised no control over when, where, or how

these gatherers worked. App.73a, ¶ 4. Typically, MOF

and Starr Coalition’s signature gatherers would set

their own schedule, and walk around highly trafficked

public spaces or go door-to-door to speak to voters and

persuade them to sign petitions to qualify MOF and

Starr Coalition’s ballot measures. Id., ¶ 5.

Plaintiffs’ doorknockers and signature gatherers

are expected to use their improvisational, conversational, and persuasive skills to “sell” candidates and

ballot measures. App.68a, ¶ 5; App.73a, ¶ 5. Considering plaintiffs’ lack of control over their doorknockers

and signature gatherers, and the degree of independent judgment that these individuals exercised in

generating the performance milestones for which

plaintiffs paid them, plaintiffs’ doorknockers and signature gatherers have always been essentially independent direct sales salespeople—notwithstanding

that their advocacy is political rather than commercial.

App.68a-69a, ¶ 8; App.73a-74a, ¶ 8.

C. California’s discrimination against political speech silences Petitioners.

MTM abandoned the California market upon AB

5’s enactment. MTM passed on doorknocking and signature gathering contracts in California because it

cannot afford the administrative expenses of hiring its

independent contractors as employees, and it does not

wish to encourage inefficient work by disconnecting

performance milestones from pay. App.69a, ¶ 9.

MOF and Starr Coalition have already missed

participating in one election owing to California’s discriminatory treatment of canvassers. They intended

to hire MTM to gather signatures qualifying their

measures for Oxnard’s 2022 municipal election,

App.74a-75a, ¶ 11, and MTM intended to accept that

work, just as it intends to provide other campaigns

with doorknocking and signature-gathering services in

California, App.69a, ¶ 10. Absent the ability to use

MTM, Starr Coalition intended to hire its own signature gatherers as independent contractors, as it has

done in years past before the advent of AB 5. But given

MOF and Starr Coalition’s limited resources, Starr

Coalition cannot afford the burden of hiring signature

gatherers as employees. App.75a, ¶ 11.

Petitioners currently refrain from hiring doorknockers and signature gatherers solely because doing

so as employers per the ABC test is unfeasible. Petitioners are concerned that their doorknockers and signature gatherers would be classified as employees, as

they could not overcome the ABC test’s presumption

against independent contracting, and they reasonably

fear criminal and civil penalties for “misclassifying”

these workers as independent contractors. Plaintiffs can

also ill afford the costs of defending themselves from

misclassification claims. App.69a, ¶ 11; App.75a, ¶ 12.

Absent paid signature gatherers, Starr Coalition

must rely on volunteers, including the volunteer efforts

of its otherwise-employed principals to gather signatures. App.75a, ¶ 13. But Starr Coalition cannot gather

enough signatures to qualify a measure for the ballot

using only volunteer labor. Lack of access to paid signature gatherers, caused solely by the ABC test, is thus

preventing MOF and Starr Coalition from speaking to

the voters and qualifying their ballot measures. Id.

D. Procedural history

1. Petitioners sought injunctive and declaratory

relief against the ABC test’s application to their hiring

of doorknockers and signature gatherers. They alleged

that the test’s selective application violates their First

Amendment rights by discriminating against their

speech based on its content.

The district court denied Petitioners’ motion for a

preliminary injunction. The court asserted that the

challenged distinctions do not trigger heightened scrutiny because AB 5 is “directed at economic activity

generally [and] does not directly regulate or prohibit

speech.” App.37a (internal quotation marks omitted).

But the court stayed the case pending the outcome of

Petitioners’ appeal. Its holding that the challenged

provisions are not content-based and do not require

strict scrutiny “bear on the heart of Plaintiffs’ First

Amendment claims, and the Ninth Circuit’s review of

those issues would almost certainly affect the outcome

of any proceedings in this Court.” App.55a. “It would

be wise for the Court to preserve its judicial resources

in light of the pending appellate review of issues central to this case.” App.56a.

2. A divided Ninth Circuit panel affirmed, addressing only Petitioners’ likelihood of success.

App.12a. The majority accepted, without discussion,

the state’s claim that the challenged exemptions describe discrete professional occupations: “Several occupations, including direct sales salesperson, newspaper

distributor, and newspaper carrier, are exempt from

section 2775 and Dynamex and instead governed by

Borello.” App.17a (citations omitted). The majority further suggested that because AB 5 “does not restrict

what, when, where, or how a worker may communicate,” but targets the economic relationships of particular speakers, “[i]t is a regulation of economic activity,

not speech.” Id. (footnote omitted). “Unless an occupational exemption exists, the ABC test applies across

California’s economy. Thus, Plaintiffs are not unfairly

burdened by application of the ABC test to their doorknockers and signature gatherers.” App.18a (internal

quotation marks omitted).

The majority acknowledged that legislatures

might employ “pernicious granularity” in defining occupations based on workers’ communicative intent.

App.19a. But without explanation, it denied that

California had done so in defining the contested exemptions according to whether canvassers discuss

“consumer products” or circulate state-defined “newspapers,” rejecting the relevance of evidence that canvassing is understood as such regardless of whether it

is directed to commercial or political purposes. Per the

majority, the exemptions for the state-defined occupations at issue “do not depend on the communicative

content, if any, conveyed by the workers but rather on

the workers’ occupations.” Id.

Finally, the majority minimized the extent to

which California’s asserted classifications turn on the

content of a workers’ speech and dismissed that fact’s

relevance. “Although determination of whether an individual is, for example, a direct sales salesperson

might require some attention to the individual’s

speech, the Supreme Court has rejected ‘the view that

any examination of speech or expression inherently

triggers heightened First Amendment concern.’ ” Id.

(quoting Austin, 142 S. Ct. at 1474).

3. Judge VanDyke dissented. “This case comes

down to a single constitutional question: whether AB

5’s employment classification before us turns predominately on the content of the workers’ speech.” App.20a.

“[D]ig beneath the surface of these ‘occupations’ and it

becomes clear that these occupational labels turn predominantly, if not entirely, on the content of the workers’ speech.” App.21a. “[T]he governmental burdens

challenged here turn primarily on what is said, not

labor distinctions unrelated to speech.” Id. Judge VanDyke would have reversed the denial of a preliminary

injunction. App.28a.

4. The Ninth Circuit declined to rehear the

matter en banc, App.42a-43a, but stayed its mandate

pending this Court’s decision on certiorari, App.44a.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision deepens an important

circuit split, and directly challenges all that this Court

has done in recent years to protect the right of free

speech from content-based discrimination. It should

not evade review.

The nation’s most populous state has categorically

decimated grassroots election speech on the pretense

that speech about elections can be regulated as a distinct economic activity. If core First Amendment political speech is just another “economic” activity

subject to California’s regulatory whims, and Austin

authorized legislatures to draw any content-based

distinctions they wish without triggering strict

scrutiny, the content-based discrimination doctrine is

dead.

The Ninth Circuit’s decision is irreconcilable with

this Court’s established First Amendment precedent,

and with the Tenth Circuit’s application of that precedent in precisely the same context: discrimination

against canvassers based on whether their speech is

commercial or socio-political. But this decision marks

only the latest instance of the lower courts’ growing

confusion over the nature and meaning of this Court’s

function or purpose test.

Considering the importance of this question, and

the circumstances under which it arises here—a

cleanly presented, often-prohibitive burden on core

First Amendment political speech—the Court should

put this confusion to rest by granting the petition.

The Ninth Circuit’s decision conflicts with

this Court’s precedent.

A. Function or purpose distinctions cannot

mask content-based discrimination.

This Court’s precedent is clear: “Content-based

laws—those that target speech based on its communicative content—are presumptively unconstitutional

and may be justified only if the government proves that

they are narrowly tailored to serve compelling state

interests.” Reed, 576 U.S. at 163 (citations omitted). “A

regulation of speech is facially content based under the

First Amendment if it ‘target[s] speech based on its

communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea

or message expressed.’ ” Austin, 142 S. Ct. at 1471

(quoting Reed, 576 U.S. at 163); see also Sorrell v. IMS

Health Inc., 564 U.S. 552 (2011).

The “commonsense meaning of the phrase ‘content

based’ requires a court to consider whether a regulation of speech on its face draws distinctions based on

the message a speaker conveys.” Reed, 576 U.S. at 163

(internal quotation marks omitted). It does not matter

whether a law does so by “defining regulated speech

by particular subject matter,” or by “defining regulated

speech by its function or purpose.” Id. “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id.

at 163-64. To avoid strict scrutiny, a law may reference

the content of speech only in aid of a neutral distinction; it must remain “agnostic as to content” and lack

“a content-based purpose or justification.” Austin, 142

S. Ct. at 1471.

The Ninth Circuit’s decision turns this understanding on its head. It did not point to any non-speech

factor distinguishing Petitioners’ disfavored workers

from those privileged by California’s scheme. The relevant workers all perform the same tasks. The different

functions and purposes of the workers’ speech is their

only defining distinction. But the majority viewed this

distinction as a reason to withhold rather than apply

First Amendment scrutiny. As the dissent noted, the

majority’s assertion that the challenged distinctions

are based on occupation is mere “ipse dixit.” App.22a.

“This position subverts First Amendment protections

to the mere semantics of legislation—content-based

speech restrictions are impermissible, but labor classifications based on the content of the industry’s speech

are allowed, and the legislature’s choice of label determines which bucket a classification falls into.”

App.22a-23a.

Assigning workers different occupational labels,

based on the purpose of their speech or the content of

the publications they deliver, “swap[s] an obvious subject-matter distinction for a ‘function or purpose’ proxy

that achieves the same result.” Austin, 142 S. Ct. at

1474. For example, the government recently asserted

that callers seeking to collect government debt practice

a different occupation than other callers. It “argu[ed]

that the legality of a robocall under the [federal robocall ban],” which exempts calls made to collect government debt, “depends simply on whether the caller

is engaged in a particular economic activity, not on the

content of speech.” Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335, 2347 (2020). But this Court

saw through the ploy. “The law here focuses on

whether the caller is speaking about a particular

topic.” Id.

Barr stands directly on-point. Petitioners’ doorknockers perform the exact same tasks as those whom

California labels “direct sales salespersons.” They visit

people “in person . . . in the home” to perform “presentation[s],” Cal. Unemp. Ins. Code § 650(a); their pay is

“directly related to [their] output (including the performance of services) rather than to [time worked],” id.

§ 650(b); and they agree to be independent contractors,

id. § 650(c). The defining distinction between these

allegedly different occupations is that exempted canvassers speak about “consumer products.” Id. § 650(a).

“[T]hey are treated differently under AB 5 because one

is selling a vacuum cleaner, while the other is selling a

political idea.” App.26a. “That is about as contentbased as it gets. Because the law favors speech made

for [selling consumer products] over political and other

speech, the law is a content-based restriction on

speech.” See Barr, 140 S. Ct. at 2346.

California’s “newspaper” delivery exception likewise exemplifies content-based discrimination. This

Court has held that “by any commonsense understanding of the term,” a ban on newsracks that contain

“commercial handbills” rather than “newspapers” “is

‘content based.’ ” Cincinnati v. Discovery Network, 507

U.S. 410, 429 (1993). “[W]hether any particular

newsrack falls within the ban is determined by the

content of the publication resting inside that newsrack.” Id. Burdening workers who distribute political

materials, but not those who distribute state-sanctioned “newspapers,” is likewise content-based regulation.

Reed deemed an ordinance content-based because

it would have treated a sign differently depending on

whether it advertised a discussion of Locke’s Two Treatises of Government, endorsed a Lockean candidate’s

election, or expressed Locke’s ideology. Reed, 576 U.S.

at 165. California’s scheme functions the same way.

Independent contractors can sell a politician’s book

door-to-door, but they cannot visit homes to sell his

candidacy. Likewise, independent contractors may deliver an editorial endorsing a political candidate—if

that editorial is enclosed within a state-approved

“newspaper.” That same editorial, however, cannot be

delivered by the same worker to the same home when

reprinted as part of a political pamphlet, unless the

campaign can afford to hire the worker as an employee.

The “occupations” here do not change with the

messages conveyed by the workers. This Court has always understood the relevant activities here, “door-todoor canvassing and pamphleteering[,] as vehicles for

the dissemination of ideas.” Watchtower Bible & Tract

Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 162

(2002). Not any particular ideas, but ideas generally—

including religious expression, labor organization, the

sale of war bonds, and political persuasion. Martin v.

Struthers, 319 U.S. 141, 145-46 (1943); cf. Lovell v.

Griffin, 303 U.S. 444, 452 (1938) (“Liberty of circulating is as essential to that freedom [of the press] as liberty of publishing; indeed, without the circulation, the

publication would be of little value”) (internal quotation marks omitted). Even where the state might regulate speech serving a particular function or purpose

as a form of conduct, it cannot define that conduct by

referencing the speaker’s subject matter and still hope

to avoid a date with strict scrutiny. See Austin, 142

S. Ct. at 1473 (solicitation restrictions permissible “so

long as they do not discriminate based on topic, subject

matter, or viewpoint”) (citation omitted).

California would not be heard to argue the First

Amendment’s irrelevance if it regulated singers differently according to their songs’ subject matter, burdening “protest singers” more significantly than

“balladeers” by claiming that the former “occupation”

serves a political purpose while the latter relates to

personal interests. The state’s attempt to carve the

traditionally understood activity of canvassing into a

multiplicity of artificial “occupations,” based on the

canvasser’s expressive purpose in a given instance,

likewise implicates the First Amendment.

B. Austin did not overrule Reed.

In Austin, this Court clarified that a regulation

may examine the content of speech yet remain contentneutral—in specific, limited circumstances, where doing so serves content-neutral distinctions. The Ninth

Circuit, however, reads Austin as an expansive license

to uphold content-based speech regulations without

such constraints. In practical terms, the Ninth Circuit

reads Austin as having overruled Reed.

Austin upheld an ordinance privileging on-premises over off-premises signs as a neutral time, place,

and manner restriction notwithstanding the fact that

applying the rule required reading the sign. Although

“enforcing the City’s challenged sign code provisions

requires reading a billboard to determine whether it

directs readers to the property on which it stands or to

some other, offsite location,” the ordinance was nonetheless content neutral because “the City’s provisions

distinguish based on location: A given sign is treated

differently based solely on whether it is located on the

same premises as the thing being discussed or not.”

Austin, 142 S. Ct. at 1472-73.

“The message on the sign matters only to the extent that it informs the sign’s relative location. The

on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions. Reed does

not require the application of strict scrutiny to this

kind of location-based regulation.” Id. at 1473 (citation

omitted).

Austin went to great lengths rooting its decision

on its established understanding of on/off-premises

distinctions as content-neutral and “the Nation’s history of regulating off-premises signs.” Id. at 1474. Responding to the dissent’s fear that its reasoning

might supplant Reed generally, the majority offered

that it “merely appl[ied]” precedent “to reach the

‘commonsense’ result” approving of “a location-based

and content-agnostic on-/off-premises distinction.” Id.

at 1475.

But here, the Ninth Circuit ignored Austin’s constraints and simply declared that this Court “rejected

‘the view that any examination of speech or expression

inherently triggers heightened First Amendment concern.’ ” App.19a (quoting Austin, 142 S. Ct. at 1474). A

regulation’s reliance on the content of speech might

trigger strict scrutiny—and, as here, it might not,

without a word regarding Austin’s requirement that

in order to avoid strict scrutiny, content-based speech

regulations must be content-agnostic in effectuating a

neutral time, place, or manner distinction.

Of course, the challenged provisions cannot satisfy

Austin’s requirements. Neither the promotion of “consumer products” nor a publication’s status as a statesanctioned “newspaper” have anything to do with the

time, place, or manner of canvassing or publication

delivery. Nor is it a fair reading of California’s law to

declare that the “determination of whether an individual is . . . a direct sales salesperson might require some

attention to the individual’s speech.” App.19a. The law

unambiguously demands that the canvasser’s speech

relate to “consumer products.” Cal. Unemp. Code

§ 650(a).

The Ninth Circuit’s misreading of Austin as constructively abrogating Reed warrants review now, before it causes any further damage.

II.

The courts of appeals are divided on the

question presented.

The Ninth Circuit’s decision upholding regulations that turn on whether a canvasser promotes consumer products squarely conflicts with the Tenth

Circuit’s decision condemning such regulation as content-based. But this key disagreement over whether

the First Amendment protects a traditional form of

speech against content-based regulation presents only

one facet of a wider 3-2 disagreement over Reed’s

“function or purpose” test.

1. The Tenth Circuit affirmed an injunction

against a curfew imposed upon commercial canvassers

but not on canvassers for other causes. Aptive Envtl.,

LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir.

2020). “[T]he Curfew is content-based, at least insofar

as the . . . ordinance determines to whom the Curfew

applies by distinguishing between the commercial and

noncommercial content of the solicitors’ speech.” Id. at

982 & n.6 (citing Discovery Network, 507 U.S. at 42829 and Reed, 576 U.S. at 165) (other citations omitted).

“Specifically, the ordinance treats civic, religious,

philosophical, and ideological solicitors who incidentally sell a good or service differently from those

who solicit with the ‘primary purpose’ of selling a good

or service.” Aptive, 959 F.3d at 982 (citations omitted)

(emphasis added); compare Cal. Unemp. Ins. Code

§ 650(a) (“primarily in person demonstration and

sales presentation of consumer products”). “And so,

because the . . . ordinance creates a content-based

distinction—which determines to which solicitors the

Curfew applies—between commercial and noncommercial speech, we must reject any argument that the

Curfew is . . . not subject to First Amendment scrutiny

at all. . . .” Id. at 983. Applying intermediate scrutiny

because the curtailed speech was commercial, the

Tenth Circuit struck down the curfew. Id. at 986-87.

The decision below is plainly irreconcilable with

Aptive. It also stands at odds with the Fourth Circuit’s

holding that “an anti-robocall statute [that] applies to

calls with a consumer or political message but does not

reach calls made for any other purpose” is content

based. Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir.

2015).

2. But other courts share the Ninth Circuit’s reluctance to follow Reed’s “function or purpose” test. The

First Circuit has held that the test was only “a single

sentence in Reed,” March v. Mills, 867 F.3d 46, 58

(1st Cir. 2017), and a nullity at that. It held that an

ordinance banning the making of noise for the specific

purpose of disrupting healthcare facilities was not content-based within Reed’s meaning. What matters is the

speech’s “communicative content,” and as the First Circuit saw it, one might seek to disrupt a healthcare facility in the course of advancing any number of causes.

Id. at 58-59. Reed explained that “obvious,” “particular

subject matter” distinctions and “more subtle” “function or purpose” distinctions are “both . . . drawn based

on the message a speaker conveys,” 576 U.S. 163-64,

but the First Circuit apparently rejects that view.

The Eleventh Circuit likewise declines to implement Reed’s “function or purpose” test. Reed “suggests”

the test, but “[t]hat language is dicta . . . because the

Supreme Court did not apply it.” Harbourside Place,

LLC v. Town of Jupiter, 958 F.3d 1308, 1319 (11th Cir.

2020); see also Fort Lauderdale Food not Bombs v. City

of Fort Lauderdale, 11 F.4th 1266, 1292 (11th Cir. 2021)

(“Reed’s allusion to the possibility” of the function or

purpose test is “dicta”). In Harbourside, the court could

not decide whether a noise ordinance applicable only

to live music regulates speech based on its content.

3. The circuit conflict is mature, and this Court

will not benefit from its further percolation. If Reed

was worth deciding, it is worth re-enforcing against a

growing trend of circuits declining or otherwise failing

to implement the decision. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Roman

Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67 (2020) (per

curiam) (quoting Elrod v. Burns, 427 U.S. 347, 373

(1976)). The broad denial of protection against contentbased discrimination exemplified by the Ninth Circuit’s decision should be addressed now.

III. This case presents an ideal vehicle to resolve an exceptionally important question.

Canvassing—not least including Plaintiffs’ efforts

to engage and persuade voters on political matters—is

plainly among the highest forms of protected expression. So is the distribution of literature. Whether the

state can discriminate against non-commercial canvassing without triggering First Amendment scrutiny

presents the circuit conflict over the “function or purpose” test in what may arguably be the most acute circumstances.

“For centuries it has been a common practice in

this and other countries for persons not specifically invited to go from home to home and knock on doors or

ring doorbells to communicate ideas to the occupants

or to invite them to political, religious, or other kinds

of public meetings.” Martin, 319 U.S. at 141. And “[f ]or

over 50 years, the Court has invalidated restrictions on

door-to-door canvassing and pamphleteering.” Watchtower, 536 U.S. at 160 (footnote omitted). “[T]he cases

discuss extensively the historical importance of doorto-door canvassing and pamphleteering as vehicles for

the dissemination of ideas.” Id. at 162.

“Of course, as every person acquainted with political life knows, door to door campaigning is one of the

most accepted techniques of seeking popular support,

while the circulation of nominating papers would be

greatly handicapped if they could not be taken to the

citizens in their homes.” Martin, 319 U.S. at 146. And

the First Amendment “has its fullest and most urgent

application to speech uttered during a campaign for

political office.” Eu v. S.F. Cnty. Democratic Cent.

Comm., 489 U.S. 214, 223 (1989) (internal quotation

marks omitted).

The First Amendment’s special concern for political campaign speech extends to the circulation of

petitions. “The circulation of an initiative petition of

necessity involves both the expression of a desire for

political change and a discussion of the merits of the

proposed change.” Meyer v. Grant, 486 U.S. 414, 421

(1988). “Thus, the circulation of a petition involves the

type of interactive communication concerning political

change that is appropriately described as ‘core political

speech.’ ” Id. at 421-22 (footnote omitted).

Some well-heeled political interests can survive

AB 5. Ironically, the rideshare and other app-based

driver companies who were the bill’s original prime

targets managed to enact an independent contractor

exemption for their industry via ballot initiative. See

Cal. Bus. & Prof. Code § 7451. Smaller grass-roots operations such as Petitioners cannot afford this version

of democracy in qualifying their measures. And “door

to door distribution of circulars is essential to the

poorly financed causes of little people,” Watchtower,

536 U.S. at 163 (internal quotation marks omitted),

especially in expensive media markets. As reflected in

this Court’s engagement of the issue in Reed, Austin,

and other cases, content-based speech discrimination

is always worth addressing. But it is especially worth

addressing in this context.

The First Amendment issue here is as focused as

it is important. The case does not turn on any disputed

or even disputable facts, but on a clean record. There is

no question that Petitioners’ labor relations are subjected to more burdensome classification standards,

including presumptive denial of independent contracting status, than those governing identically situated

workers who speak about different subjects. The lower

courts have wrongly assessed Petitioners’ likelihood of

success at zero as a matter of law. Recognizing the dispositive nature of that decision, the courts stayed further proceedings pending higher authoritative review.

Considering the importance of this issue, especially

under these circumstances, this Court should provide

that much-needed guidance.

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted.

ALAN GURA

Counsel of Record

Brett R. Nolan

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

(202) 301-3300

agura@ifs.org

Counsel for Petitioners

MARCH 8, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.