Asja v. Rob Bonta, 15 F.4th 954

California codified the "ABC test" (Dynamex) in AB 5 and later amended it with AB 2257 (§ 2778) to curb worker misclassification and protect wage/benefit obligations.
AB 5/AB 2257 created occupational exemptions where Borello (multi-factor control test) rather than Dynamex (ABC) applies; some professions (doctors, lawyers, etc.) received broad exemptions, while freelance writers/photographers received narrower, conditional exemptions.
Early AB 5 imposed a 35-submission annual cap for freelancers and excluded certain photographers/videographers working on defined "motion pictures;" AB 2257 removed the submission cap but added other limiting conditions (e.g., no replacement of an employee, no primary performance at hirer’s location, ability to work for multiple hirers).
The American Society of Journalists and Authors and National Press Photographers Association (ASJA) sued, alleging § 2778 violates the First Amendment (content-based regulation of speech) and the Equal Protection Clause (irrational occupational distinctions).
The district court denied preliminary injunctive relief and dismissed the suit; the Ninth Circuit reviewed the dismissal de novo (merger doctrine) and affirmed, holding the law regulates economic activity and that occupational differences survive rational-basis review.

Issue	Plaintiff's Argument (ASJA)	Defendant's Argument (Bonta/State)	Held
Whether § 2778 is a content-based regulation of speech (First Amendment)	The statute’s applicability depends on the type/content of work (e.g., journalism, creative writing, photography), so it burdens speech and triggers strict scrutiny	§ 2778 regulates worker classification/economic conduct, not the content or timing/manner of speech; any effect on speech is incidental	Not content-based; regulates economic activity, so no strict scrutiny applies
Whether the "motion pictures" exclusion impermissibly burdens newsgathering/filmmaking (First Amendment)	Excluding workers who work on "motion pictures" (including broadcast news) targets a medium and burdens filming of matters of public interest	"Motion pictures" denotes an industry/medium, not a message-based classification; medium-based rules do not automatically implicate the First Amendment	No First Amendment violation; medium-based distinction is content-neutral in this context
Whether § 2778’s occupational exemptions violate Equal Protection	The exemptions treat speaking professions differently and are arbitrary or irrationally underinclusive	The Legislature rationally tailored exemptions based on historical treatment, market structure, misclassification risk, and other policy considerations	Survives rational-basis review; occupational classifications are rationally related to legitimate state interests

Dynamex Operations West, Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018) (adopting the ABC test for employee classification)
S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal. 1989) (multi-factor test focusing on control)
Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions trigger strict scrutiny)
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (distinguishing regulations of speech from regulations of economic conduct that incidentally affect speech)
Minneapolis Star & Tribune Co. v. Comm’r of Revenue, 460 U.S. 575 (1983) (invalidating a tax that singled out the press)
Simon & Schuster v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (striking content-based financial burden on publications)
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (economic regulation that incidentally burdens speech is often permissible)
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) (rational-basis test permits speculative legislative classifications)
Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008) (example of an Equal Protection classification failing rational-basis scrutiny under unique facts)
Cal. Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021) (upholding AB 5 as generally applicable despite exemptions)