Background
Uber Technologies, Inc. and Maplebear Inc., doing business as Instacart, challenged Seattle’s App-Based Worker Deactivation Rights Ordinance. The Ordinance prohibits unwarranted deactivations of app-based worker accounts and requires network companies to inform workers in writing of their deactivation policies. The policies must be reasonably related to safe and efficient operations. The companies alleged the Ordinance compels speech in violation of the First Amendment and is unconstitutionally vague. The district court denied their motion for a preliminary injunction.
The court’s reasoning
The panel held that the Ordinance regulates nonexpressive conduct—the unwarranted deactivation of worker accounts—and thus does not regulate speech subject to First Amendment protection. The court noted that any burden on speech is incidental. Alternatively, the court determined that if the Ordinance regulates speech, it is commercial speech subject to the Zauderer test. The requirement to inform workers of deactivation policies is reasonably related to the substantial governmental interest of keeping workers informed and employed while keeping the public safe. The court also held that the Ordinance is not unconstitutionally vague because it provides fair notice to a person of ordinary intelligence regarding what grounds for deactivation are reasonably related to safety and efficiency.
The Ordinance regulates nonexpressive conduct—the unwarranted deactivation of worker accounts.
Opinion by Judge Clifton
The dissent
In his view the Ordinance deactivation policy requirement compels speech and is thus subject to the First Amendment.
Judge Bennett
What it means going forward
The decision upholds Seattle’s ability to enforce its Ordinance requiring network companies to establish and communicate deactivation policies that are reasonably related to safety and efficiency. It prevents the companies from obtaining a preliminary injunction to stop enforcement while their constitutional challenges proceed.