AB 5 SILENCES YOUR VOICES AND VIOLATES CONSTITUTION SEVERAL WAYS: PLEASE HELP US PROTECT A FREE PRESS

Printer-friendly versionPrinter-friendly version Share this

By Miriam Raftery, Editor, East County Magazine

I fought a case all the way to the U.S. Supreme Court to protect the rights of freelance journalists.  AB 5 takes that away – and hurts the public by restricting your voices from being heard in local media. 

Note: I grant free reprint rights on this editorial to any publisher who wishes to repost it in its entirety.

September 6, 2019 (San Diego’s East County) – A bill to be heard any day now in the  State Senate and then head to the Governor for signature will destroy a free press in California – and we need your help to protect the public’s voices in out media outlet and others. The bill violates the U.S. constitution on multiple grounds.

AB 5 would prohibit media outlets such as ours from paying ordinary citizens to write articles on areas in which they have expertise, or hiring columnists who aren’t professional journalists, or even paying an eyewitness for photos of breaking news such as a wildfire or plane crash. A newspaper also won’t be allowed to pay for a column or editorial  unless the writer owns a journalism business or is an employee.

We've trained many citizen journalists here at East County Magazine -- including some who won journalism awards. We've run many paid pieces written by community members, too, to include a broad diversity of voices. But we won't be able to do so anymore if this becomes law.

This violates the First Amendment of the Constitution which guarantees freedom of the press and your freedom of speech.

We could no longer pay a hiker to writer about great trails, an artist to review an art show, a rural resident to cover a planning group meeting, or a retired first responder to cover wildfires, unless the person owns a writing or photography business that is licensed (in most  jurisdictions), advertises their journalism services and meets other requirements. We could not hire a columnist or a subject expert.

How important is this? One of our citizen-journalists in training discovered El Cajon was considering tearing down the performing arts center to build a hotel.  She got word out and citizen showed up to protest and the theater was saved.  Citizen journalists have reported for us on wildfires in progress, a wind turbine that collapsed on a public trail, and many other important stories. We relied on a citizen journalist who is a former medic and first responder trusted by firefighters to cover such important stories, along with her husband, Tom Abbott, who took this award-winning photo (right).

AB 5 by Assemblywoman Lorena Gonzalez-Fletcher is intended to protect workers in the “gig” economy at companies such as Uber and Lyft. But it’s drafted so broadly that it would prevent newspapers from paying for the very types of works that we take pride in including – works that reflect the diverse backgrounds of our readers in terms of geographic locations, age, income, race, ethnic origin and more. 

The bill also limits the total number of articles that even paid professional writers or photographers could provide to no more than 35 a year (just 3 a month!).  After that they would have to become an employee. The cap, if any, should be much higher - perhaps 100 submissions a year.

There are several problems with forcing freelance journalists to become employees for even small numbers of works.

First, it’s prohibitively expensive for small community newspapers and nonprofits to hire employees. Workman’s compensation alone cost hundreds of dollars a month per employee, I’m told. A  couple of employees would easily exceed our total budget for reporting each month, and there’s also SSI withholding, payroll taxes, accounting and reporting requirements that are costly. We would have to limit all or most writers to that 35 cap, which isn't even 3 article or photos each month.

Second, this will destroy the livelihoods of freelance writers and photographers, and violate their Constitutional rights to copyright protection. The Constitution’s Patent and Copyright section in Article 1 Section 8, Clause 8 states that Congress has the power to secure “for limited times to authors and inventors the exclusive rights to their writings and discoveries.”

But Copyright law provides that if a writer/photographer becomes an employee, then the employer owns all the copyrights to their works – and the writer/photographer loses the rights to resell their own works.  This will destroy livelihoods for freelance journalists who rely on resales. Imagine if after selling just three articles or photos a month, 36 a year, for as little as $10 a photo or $50 an article, you were forced to give up your resale rights.  You could not make a living.

When a major newspaper stole and resold hundreds of my copyrighted works as a freelance writer,   I sued.  I was a named plaintiff in a landmark class action lawsuit filed against most major newspapers in the U.S. and I was joined by the three major professional writers’ organizations: Authors Guild, American Society of Journalists and Authors, and Society for Professional Jouranlists. (National Writers Union paid my legal bills up front, so I am not anti-union.)

Our case went to the U.S. Supreme Court.  We won a landmark $18 million settlement for freelance writers nationwide. I didn't spend 17 years fighting for the rights of freelance journalists only to see all of our gains killed by AB 5.

That kind of suit would not be possible under this bill, which would force freelancers to give up all rights to their works if they regularly sell to any one publication, as I had sold  many hundreds of articles to the San Diego Union-Tribune over a decade before learning they had stolen and resold my copyrighted works.

The California Newspaper Association opposes this bill. Every professional writer and photographer that I know opposes this bill. It could put community newspapers and magazines such as ours out of business and result in less diverse voices even in the largest newspapers. The newspaper industry is already struggling, with many that have closed down, consolidated, or rely on mostly wire service news with fewer local voices.

What you can do:

Contact:

Assemblywoman Lorena Gonzalez-Fletcher https://a80.asmdc.org/

State Senate Pro Tem Toni Atkins https://sd39.senate.ca.gov/

Governor Gavin Newsom  https://govapps.gov.ca.gov/gov40mail/

Your own State Senator (Brian Jones or Ben Hueso for East County)

Ask that the bill be amended to :

  • Allow press organizations such as newspapers to  buy paid articles and photos from any individual, to assure a diversity of voices 
  • and protect free speech and freedom of the press First Amendment Rights. Eliminate the unconstitutional requirement that bans ordinary citizens from being paid to publish articles, columns, editorials, photos, or other materials in media outlets and that limits publication only to business owners.
  •  
  • Eliminate newspapers and other media outlets from the requirement to make workers employees if they sell over 35 photos or articles to a publication, because this takes away copyright protections for freelance writers, photographers, and artists and violates their constitutionally protected rights to own their own works. Or raise the cap to at least 120 submissions a year (10 a month) and whatever the cap is,  make it optional for writers/photographers to accept an employment contract: if they would rather continue as a freelancer to retain resale rights, amend the bill to allow this. 

There are other industries that may be hurt. But journalism is the only profession protected by the Constitution in the very First Amendment for good reason – to protect your right to speak out and the rights of a free press to be free of government interference.  That’s why copyrights for writer are also protected, so they can publish their works when and where they choose.

Please take a moment to stand up for freedom of speech and freedom of the press to assure that your access to news that matters won’t be restricted or vanish, since this bill threatens the very future of a free press in California.

 

 

Comments

Thanks

I learned a lot from the replies.

Since writing this I've heard from others who fear losing work

if this bill becomes law and some whose companies may fold.  The arts will be hard hit --  magicians, musicians, artists, mimes, actors, the list goes on and on  

Another big problem is who decides what's "core" to a specific business?   How can a business avoid getting into trouble when there's no clear definition?  For a media company,  I suppose writing and photography are core fields. But what about a webmaster?  Clerical work?  Hiring an accountant? Consulting a lawyer on avoiding libel issues?  Hiring short-term help to market an event or fundraise for a nonprofit media project?  I am told its many hundreds of dollars a month or more to make even a single person an employee, especially given the high cost of worker's compensation insurance.  I would way rather use that money to hire my existing freelancers to write more articles, and they would make more, too. 

This bill is a fast way to decimate not only media, but the arts, too and probably many more small businesses and nonprofits.  It's like killing flies with a nuclear bomb instead of a flyswatter -- total overkill if the goal is simply to address huge companies like  Uber, where there have been actual worker complaints, instead of ruining many long-standing industries where both the workers and the employers are doing good things for society and are happy with independent contractor arrangements as they stand.

 

 

 

What about those delivering newspapers?

I totally agree that independent contributors to newspapers and magazines shouldn't be treated as employee. In fact, years ago I wrote an OpEd published by SD Union-Tribune and was paid for it, though, since not a normal source of income for me, I would have written it in any case. However, in today's Union-Tribune they don't like that the Bill will force them to treat those who deliver their papers as employees. I think someone working regularly delivering papers should be treated as an employee with ALL benefits, e.g., worker's comp, sick leave, etc. Not being a lawyer, the Bill obviously needs to be modified to separate the two. It's overall intention is good.

This bill is going after the whole gig economy

And one origin was the paper delivery system that relies purely on contractors. The other two are the obvious targets, Uber and Lift. The Bill sites two legal cases, in particular this one: Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018). It was decided by the CA Supreme Court in 2018. Here is the full text of the bill. And yes, it is disrupting more than just one industry. https://legiscan.com/CA/text/AB5/id/2050952 Here is an extremely good analysis of what it does https://qz.com/1703897/californias-ab5-will-rewrite-the-rules-of-the-gig-economy/. As the Quartz piece points out, this is slated to become law, the big boys intend to put this on the ballot using the initiative process.

That photo was taken by my husband, Tom Abbott

For the record, he has shot for major publications as well, including Rolling Stone, Reuter’s and Stars and Stripes. This is well before he shot anything for you. Among others, one of his early credits is with the San Francisco Chronicle above the fold. It was a speed boat, with the bridge in the foreground. He was awarded an award, first place, for that shot. It was taken during the Mt. Laguna fire. I was with him as well during that shot. I even remember the gear he used. A Nikon 300 with a 70-800 lens. I do not have access to the raw data right now, my god it’s early, since the computer is off, or would give you the rest of the data including mode, though he prefers to shoot manual, I prefer AP, and the aperture. So I believe that was done in manual.

Second correction, the first place was awarded

for the shot at Mt Laguna. That is what he was awarded first place with the Society of Profesional Journalists in either 2013 or 2014. The San Francisco Chronicle shot was just excellent thinking on the part of a young photog. He got a shot for taking no for an answer, but that is another story.

Correction

70-300 lens. We still have it

Stringers

 What about "stringers"? They sell video stories to the majors but get no health insurance, vacation or overtime. I see "On Scene TV" all the time.. They aren't employees, if their work is llimited we'll see a lot  less coverage of issues that are important to small communities. News8 isn't going to send a crew to Descanso if there's an important issue like dry wells or livestock problems.

On Scene TV is actually a small company

So you could argue that he has an employer, employee relationship. And he sells the material to the big boys. I have worked along side his crews and the owner. As to News 8, they tend to send their crews. The chopper, which had an oopsie the other day, is technically in the same boat as OnScene. And they work under contract for KFMB as well as other stations in town.

The TV stations sometimes buy film and photos from stringers too

If a viewer is at the scene of an accident, fire, plane crash etc. and sends it to them, they run these and do sometimes pay especially for video footage.  They would no longer be able to do that under this bill, unless the  person is a licensed professional.