The U.S. Court of Appeals for the Ninth Circuit reviewed a challenge to California’s “ABC Test,” also referred to as Assembly Bill (AB) 5, which is California’s test for whether a worker can be classified as an independent contractor.  In Mobilize the Message, LLC v. Bonta, the plaintiffs appealed the district court’s denial of a preliminary injunction seeking to restrain the California Attorney General from applying the ABC Test to classify doorknockers and signature gatherers as either employees or independent contractors.

In the case, Mobilize the Message, LLC argued that the California law violated the First Amendment of the U.S. Constitution because it discriminates against speech based on its content. Specifically, plaintiffs argued that it was discriminatory to require doorknockers and signature gatherers to be classified as employees or independent contractors under the ABC Test while occupations such as direct salespersons, newspaper distributors, and newspaper carriers are exempt from the test’s application.

In the Ninth Circuit’s review of the district court’s denial, it accepted the plaintiffs’ assertion that their doorknockers and signature gatherers would likely be classified as employees under the ABC Test, and that such classification would impose greater costs which may limit clients from retaining their services. The Ninth Circuit panel stated, however, that such an indirect impact on speech did not violate the First Amendment. The panel further noted that the codification of the ABC Test into California law does not target certain types of speech and applies across California’s economy aside from certain exemptions. As such, “plaintiffs were not unfairly burdened by the application of the ABC test to their doorknockers and signature gatherers.”

Moreover, the panel rejected the plaintiffs’ argument that exemptions for direct sales salespersons, newspaper distributors, and newspaper carriers were content-based discrimination, as the exemptions did not depend on the content of communications conveyed but rather the worker’s occupations.

Based on the panel’s findings, the district court’s ruling in denying a preliminary injunction was upheld.

Mobilize the Message, LLC v. Bonta is the latest in failed industry challenges to the application of the ABC Test. In July 2022, the U.S. Supreme Court denied the trucking industry’s petition for review of its challenge to the ABC Test.