Hey, New York. Do What’s Right, and Correct the Second Circuit’s Mistake
Not long ago, New York City fancied itself as a champion of the for-hire driver.
Policymakers seemed to be genuinely motivated as national media exposed the plight of taxi and rideshare drivers. The City opened investigations into predatory taxi medallion brokers, took on billion dollar rideshare companies, and imposed progressive minimum wages and caps to quash over saturation and unfair labor practices.
Mayor Bill di Blasio seemed to relish in the idea of being a pioneer advocate for taxi, rideshare and gig workers. In May, for instance, the mayor tweeted, “It’s unacceptable to prey on hardworking New Yorkers trying to support their families,” in response to the corrupted medallion industry. In August, the mayor’s office told The Wall Street Journal, “Corporations that drive 85% of their employees into poverty are in no position to lecture New York City. It’s time to put fairness ahead of profits.”
This appeared to be more than lip service. It seemed like a movement; a city ready to make the new economy work for its citizens, as opposed to the converse.
But now, NYC is slamming the brakes on its initiative. Instead of advancing drivers’ rights, the City is picking the pockets of its hardest workers.
A little context.
Since February 2018, NYC’s rideshare drivers have been supplementing their income by displaying third-party advertisements in and on their vehicles. Some drivers earn hundreds of dollars each month — in addition to their Uber/Lyft fares — by simply installing a screen, sign or rooftop display.
The ability to supplement income while driving was a game changer. In the past, drivers had to work multiple gigs to keep gas in the tank and food on the table. It wasn’t unusual for one person, on one day, to work for Uber and Lyft and Postmates and TaskRabbit and the other guys, just to make a living wage. While drivers technically “didn’t have a boss,” they were still very much subjugated by the system.
With ads, drivers suddenly had a floor.
Now, this “right to advertise” wasn’t a gift from the rideshare gods. Like most benefits in the gig economy, it was earned through a hard-fought, politicized court battle.
Long story short, NYC had originally banned advertising in rideshare vehicles. In 2015, that ordinance was challenged in federal court. The City dug in, claiming its prohibition protected citizens from “offensive sights and sounds” (as if New Yorkers were suddenly allergic to noise).
In 2018, the federal district court held NYC’s ban to be an unconstitutional violation of the First Amendment. Rideshare drivers quickly started reaping the benefits.
Fast-forward to July 2019, the Second Circuit Court of Appeals reversed the lower court and reinstated NYC’s prohibition on rideshare advertisements. With the stroke of pen, the appellate court pulled the lifelines out of drivers’ cars.
NYC must now ask itself, is this really a win? The landscape has changed quite a bit since the lawsuit was filed in 2015. For-hire drivers are committing suicide in mass. Rideshare companies are spending tens of millions of dollars to eliminate driver benefits. NYC itself has taken unprecedented steps to improve conditions for gig workers.
Yes, by order of court, the City may prohibit rideshare advertisements. But, it doesn’t have to.
There are two primary reasons for NYC to change course. First, fairness. The City clearly appreciates the desperation of its for-hire drivers. Many workers have come to depend on this supplemental income, and truly cannot make ends meet without it. Why pull the plug now, a year and a half later? To what end?
Second, the appellate court’s decision isn’t exactly on solid legal ground. In siding with NYC, the Second Circuit applied “intermediate scrutiny,” a standard used to examine restrictions on commercial speech. Under that standard, courts must consider whether (1) the at-issue speech is protected by the First Amendment; (2) the asserted government interest is substantial; (3) the regulation directly advances the government interest asserted; and (4) the regulation is no more extensive than necessary to serve that interest.
The first three prongs of the test are likely met. But, can anyone really argue in good faith that a total ban on advertisements is no more extensive than necessary to accomplish the City’s goals? How about imposing limits on screen size, brightness, or volume? What about a required on/off button? Perhaps roof top ads are allowed, but in-car screens are not. There are clearly less restrictive options than a complete prohibition on commercial speech.
Should this case be appealed to the Supreme Court, there is a strong possibility the Second Circuit will be reversed. So, why expend the time and money to defend this suspect decision? Why use the City’s resources to double-down on a holding that’s not in the best interest of its citizens?
Put bluntly, the advertising ban no longer makes sense. It’s time for NYC to amend its ordinance, allow gig workers to supplement their income, and affirm its commitment to drivers’ rights.