WLF Asks Second Circuit to Rebuke New York City’s Compelled-Speech Regime

“War on terror caselaw doesn’t dictate the outcome when a local government compels speech.”
—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Second Circuit to reverse a lower court decision that inappropriately relied on national security caselaw to bless a local government’s compelled-speech regime.

The case arises from the City of New York’s ongoing campaign to increase the labor-price for delivery workers operating via UberEats and DoorDash. New York can—and has—increased the minimum pay for such workers. Yet the City thinks that amount ($21.44 an hour) is still insufficient. Rather than just increase the wage floor, New York compels the third-party apps to advance the tipping screen pre-checkout and set an automatic default rate. The lower court held that this compelled speech didn’t violate the First Amendment.

WLF’s amicus brief explains why the lower court got that wrong. It relied on Rumsfeld v. FAIR, a post-9/11 national security case about military recruitment on university campuses. That was the “original sin” of the lower court’s opinion, which inappropriately deferred to the City as if it were a wartime Pentagon. Under the appropriate standard of review, because New York can just hike wages without re-arranging a delivery service’s commercial speech, the City’s mandate can’t survive exacting scrutiny.