Mobilize the Message, LLC. v. Bonta

“[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

Mobilize the Message (Appellant) claimed California’s ABC test, which designates signature gatherers and doorknockers as employees instead of contractors, violated their First Amendment rights. Appellant appealed the district court’s denial of its motion for preliminary injunction barring the State from using the ABC test, codified through Assembly Bill No. 5, to classify the signature gatherers and doorknockers. Appellant argued that California law, as applied, was content-based discrimination, pointing out the exemption from Assembly Bill No. 5 provided to direct sales salespersons, newspaper distributors, and newspaper carriers. In response, the State argued the exemptions did not place “content-based restrictions on speech.” “[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552 (2011). The Court reasoned that the ABC test regulated economic activity across the state, and, although designating workers as employees carried a higher economic burden, it did not unfairly burden the speech of the signature gatherers and doorknockers. The Court concluded the application of the ABC test did not target particular speech, so the incidental impact on speech was not content-based discrimination. Therefore, the district court did not abuse its discretion in denying a preliminary injunction. Affirmed.