# Uber Technologies, Inc. v. City of Seattle

> Court of Appeals for the Ninth Circuit · March 4, 2026

URL: https://www.frixlaw.com/law-library/cases/11270367

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 4, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11270367

## How later opinions describe it (automated extraction)

- rejecting the district court’s application of Zauderer and instead applying strict scrutiny
- holding that speech involving a “proposal of possible employment” is commercial speech
- holding that the plaintiffs’ wearing of bikinis while working was not protected by the First Amendment because there was not a “‘great likelihood’ that their intended messages related to empowerment and confidence will be understood by those who view them”

## Opinion text

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UBER TECHNOLOGIES, INC.; No. 25-228
PORTIER, LLC,
D.C. No.
2:24-cv-02103-
Plaintiffs - Appellants,
MJP
and
OPINION
MAPLEBEAR INC., doing business
as Instacart,

Intervenor-Plaintiff,

v.

CITY OF SEATTLE,

Defendant - Appellee.

UBER TECHNOLOGIES, INC., No. 25-231
PORTIER, LLC,
D.C. No.
2:24-cv-02103-
Plaintiffs,
MJP
and

MAPLEBEAR INC., doing business
as Instacart,
2 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Intervenor-Plaintiff -
Appellant,

v.

CITY OF SEATTLE,

Defendant - Appellee.

Appeals from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

Argued and Submitted July 10, 2025
Seattle, Washington

Filed March 4, 2026

Before: Susan P. Graber, Richard R. Clifton, and Mark J.
Bennett, Circuit Judges.

Opinion by Judge Clifton;
Partial Dissent by Judge Bennett
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 3

SUMMARY *

First Amendment

The panel affirmed the district court’s denial of a motion
by Uber Technologies, Inc. and Maplebear Inc. for a
preliminary injunction to enjoin the City of Seattle from
enforcing Seattle’s App-Based Worker Deactivation Rights
Ordinance (the “Ordinance”), which applies to network
companies that provide a platform for customers to hire
temporary workers and prohibits unwarranted deactivations
of these app-based workers’ accounts.
Section 8.40.050.A of the Ordinance requires (1) that a
network company “inform” any app-based worker “in
writing” of the company’s deactivation policy and (2) that
the deactivation policy be “reasonably related” to the
company’s “safe and efficient operations.” Plaintiffs, two
network companies that rely on app-based workers for their
businesses, alleged that the Ordinance compels speech in
violation of the First Amendment, and that it is
unconstitutionally vague.
The panel held that the Ordinance does not regulate
speech subject to protection under the First Amendment
because the Ordinance regulates nonexpressive conduct—
the unwarranted deactivation of worker accounts. The fact
that the Ordinance, in plaintiffs’ words, necessarily
“compel[s] and dictate[s] the content of a written
communication” does not transform a law regulating

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

nonexpressive activity into one that infringes speech, and
any burden on speech is incidental.
Alternatively, even if the Ordinance is interpreted to
regulate speech, that speech would be commercial speech,
and the Ordinance’s regulation of it would overcome the
applicable lower level of First Amendment scrutiny.
Because the Ordinance regulates deactivation standards and
requires companies to communicate those standards to their
workers, the panel applied the test articulated in Zauderer v.
Office of Disciplinary Counsel of the Supreme Court of
Ohio, 471 U.S. 626, 651 (1985).
As to the Ordinance’s first requirement that network
companies inform app-based workers of their deactivation
policies, the panel held that it meets the test drawn from
Zauderer, because the provision is reasonably related to
Seattle’s goal to keep app-based workers informed and
employed while keeping the public safe, does not purport to
compel speech on controversial issues, and is not unduly
burdensome.
Concerning the Ordinance’s second requirement that the
deactivation policies be “reasonably related” to the
companies’ “safe and efficient operations”, the panel
concluded that provision is not an impermissible regulation
of speech, because it regulates speech related to what Seattle
has designated as unlawful activity: the unwarranted
deactivations of worker accounts.
The panel further held that the Ordinance is not
unconstitutionally vague because it provides fair notice to a
person of ordinary intelligence as to what grounds for
deactivation are reasonably related to safety and efficiency.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 5

Accordingly, the panel held that because Plaintiffs are
unlikely to succeed on the merits of their claim, the district
court did not abuse its discretion when it denied the
preliminary injunction.
Dissenting in part, Judge Bennett agreed with the
majority that the Ordinance is not unconstitutionally vague.
However, in his view the Ordinance deactivation policy
requirement compels speech and is thus subject to the First
Amendment. While he agreed with the majority’s alternative
reasoning that the speech at issue is commercial speech
subject to intermediate scrutiny, Plaintiffs raised serious
questions going to the merits. He would therefore vacate and
remand to have the district court redo its analysis on the
merits and reexamine the Winter preliminary injunction
factors in light of a determination that the Ordinance is
subject to intermediate scrutiny, and in light of the current
facts.

COUNSEL

David M. Zionts (argued), Stacey K. Grigsby, Alexander J.
Cave, and Neha Jaganathan, Covington & Burling LLP,
Washington, D.C.; Neema Sahni, Covington & Burling
LLP, Los Angeles, California; Robert J. Maguire and Theo
A. Lesczynski, Davis Wright Tremaine LLP, Seattle,
Washington; for Plaintiffs-Appellants.
Alexander T. MacDonald (argued), Littler Mendelson PC,
Washington, D.C.; Douglas E. Smith, Littler Mendelson PC,
Seattle, Washington; for Intervenor-Plaintiff-Appellant.
6 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Jessica L. Goldman (argued), Jesse L. Taylor, Lawrence C.
Locker, Molly J. Gibbons, and Eva S. Oliver, Summit Law
Group PLLC, Seattle, Washington; Ghazal Sharifi, Assistant
City Attorney; Ann Davison, City Attorney; Seattle City
Attorney's Office, Seattle, Washington; for Defendant-
Appellee.
Jason W. Anderson, Mark C. Lamb, and Nicholas A.
Carlson, Carney Badley Spellman PS, Seattle, Washington,
for Amicus Curiae Washington Food Industry Association.
Adam G. Unikowsky and Jonathan J. Marshall, Jenner &
Block LLP, Washington, D.C.; Jonathan D. Urick and
Audrey Beck, U.S. Chamber Litigation Center, Washington,
D.C.; for Amicus Curiae the Chamber of Commerce of the
United States.
Jonathan B. Miller and Naomi Tsu, Public Rights Project,
Oakland, California; Robert Taylor, City Attorney, Office of
the Portland City Attorney, Portland, Oregon; Heather
Ferbert, San Diego City Attorney, Office of the San Diego
City Attorney, San Diego, California; for Amici Curiae
Local Governments.
Jessica A. Skelton and W. Scott Ferron, Pacifica Law Group
LLP, Seattle, Washington, for Amicus Curiae International
Municipal Lawyers Association.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 7

OPINION

CLIFTON, Circuit Judge:

The City of Seattle enacted Ordinance 126878 (the
“Ordinance”) in 2023. 1 It added a new chapter 8.40 to the
Seattle Municipal Code, titled the “App-Based Worker
Deactivation Rights Ordinance.” Applying to “network
companies” that provide a platform for customers to hire
temporary workers, like delivery drivers, the Ordinance
prohibits “unwarranted deactivations” of these app-based
workers’ accounts. Seattle, Wash., Ordinance 126878,
§ 8.40 (Aug. 14, 2023). The law is Seattle’s attempt to
address what it perceives to be the instability of the gig
economy and the consequent vulnerability of delivery
workers.
Uber Technologies, Inc., including its wholly owned
subsidiary Portier, LLC (“Uber”), and Maplebear Inc.
(“Instacart”) (collectively, “Plaintiffs”) are two network
companies that rely on app-based workers for their
businesses. They claim that the Ordinance violates their
constitutional rights in two ways: it impermissibly infringes
on their protected speech, and it is void for vagueness. They
appeal the district court’s denial of their motion for a
preliminary injunction to enjoin enforcement of the
Ordinance against them.
We conclude that the Ordinance does not regulate speech
subject to protection under the First Amendment because the
Ordinance regulates nonexpressive conduct—the
unwarranted deactivation of worker accounts. Even if the

1
Relevant portions of the Ordinance are attached as an appendix to this
opinion.
8 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Ordinance is interpreted to regulate speech, that speech
would be commercial speech, and the Ordinance’s
regulation of it would overcome the applicable lower level
of First Amendment scrutiny. As for the vagueness
challenge, we conclude that the Ordinance is not
unconstitutionally vague, because a person of ordinary
intelligence would understand its meaning. Accordingly, the
district court did not abuse its discretion when it denied
Plaintiffs’ request for a preliminary injunction, and we
affirm.
I. Background
Uber and Instacart are large companies in the growing
gig economy. Plaintiffs and other companies like them
connect workers with customers, then take a cut of payments
made by the customers. Relevant to the Ordinance, Uber and
Instacart act largely as delivery services. (The Ordinance
does not apply to certain categories of app-based workers,
like rideshare drivers, which is what many people may
immediately think of as “Uber.” Ordinance § 8.40.020.)
Their workers pick up orders from restaurants, or retailers,
or even other customers on the app. The workers also can
operate as personal shoppers by going to businesses like
grocery stores, browsing for items, and delivering those
items to customers.
Both workers and customers access those services
through accounts on apps built by the network companies.
While Uber and Instacart are the parties to bring this
challenge, any app-based worker regulation affects more
than just the users of those two platforms. As of 2021,
sixteen percent of adults in the United States have earned
money via an online gig platform. Monica Anderson et al.,
The State of Gig Work in 2021, PEW RSCH. CTR. (Dec. 8,
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 9

2021),
https://www.pewresearch.org/internet/2021/12/08/the-state-
of-gig-work-in-2021/ (last visited Oct. 29, 2025).
Seattle’s Ordinance prohibits deactivations of app-based
workers for reasons that its drafters deemed unwarranted.
Ordinance § 8.40.060.A. Plaintiffs do not challenge that
prohibition but instead challenge the constitutionality of
certain provisions of the Ordinance, in particular section
8.40.050, titled “Deactivation requirements.” That section
requires (1) that a network company “inform” any app-based
worker “in writing” of the company’s deactivation policy
and (2) that the deactivation policy be “reasonably related”
to the company’s “safe and efficient operations.” Id.
§ 8.40.050.A.1–2.
The Ordinance includes a list of eight example policies
that are not reasonably related to safety and efficiency. Id.
§ 8.40.050.A.2.a–h. The list includes policies that would
result in a deactivation “based solely on a quantitative metric
derived from aggregate customer ratings” or “based on the
results of a background check, consumer report, driver
record, or record of traffic infractions, except in cases of
egregious misconduct or where required by other applicable
law.” Id. § 8.40.050.A.2.e, h. 2

2
“Egregious misconduct” is defined as:
[A]n action or behavior by an individual app-based
worker that: (1) endangers the physical safety of the
customer, or a third person, the network company, or
an animal; or (2) intentionally causes economic harm
to the customer, a third person, or the network
company; or (3) is threatening, harassing, or abusive
to the customer, a third party, or the network company.
10 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

The Ordinance applies only to internal communications
with app-based workers. It does not require that the
companies communicate any deactivation policies to the
general public. Nor does it require that the companies
communicate their agreement with such policies. The
companies may describe the policies as being required by the
Ordinance.
Seattle’s stated purpose for enacting the Ordinance is to
“protect[] and promote[] public health, safety, and welfare.”
Id. § 1.C. Minimum labor standards are recognized as
helping both employers, by improving worker performance
and quality, and workers, by increasing job stability. Id.
§ 1.E, W. But network companies’ growing reliance on
algorithms leads, Seattle says, to “arbitrary evaluations and
unwarranted deactivations.” Id. § 1.H. Establishing “clear
performance expectations,” limitations on deactivations
predicated on quantitative metrics and possibly inaccurate
background checks, and a legal right to challenge
unwarranted deactivations are all attempts to regulate
reliance on automatic, algorithmic determinations of
worker-eligibility. See id. § 1.I–L, P, U.
Uber filed this action seeking a temporary restraining
order and preliminary injunction against the Ordinance
shortly before it was set to take effect. It alleged three claims,

. . . [It] includes but is not limited to . . . failing to
maintain a valid state driver’s license . . . .
. . . [It] shall not include conduct related to non-
criminal moving violations . . . or traffic collisions
unless the app-based worker has accumulated more
than three non-criminal moving violations or at-fault
collisions in the previous three years.
Id. § 8.40.020.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 11

two of which are pursued in this appeal: that the Ordinance
compels speech in violation of the First Amendment, and
that it is unconstitutionally vague. 3 Instacart moved to
intervene and, in doing so, agreed to forego independent
briefing on the temporary restraining order before the district
court.
The district court held that the Ordinance regulates the
deactivation of worker accounts, with any effects on speech
or expression being “incidental to its worker-related conduct
goals.” The court concluded that the Ordinance was not void
because the term “reasonable” was not vague, and any
discrepancies in interpretation were rooted in a
“fundamental disagreement” between Uber and Seattle over
what policies are reasonably related to safe and efficient
operations. After determining that Uber did not show a
likelihood of establishing any constitutional violation, the
district court found neither irreparable harm nor a balance of
equities or public interest tipping in Uber’s favor. It denied
the motion for a temporary restraining order and preliminary
injunction.
Uber and Instacart appealed. A stay pending final
resolution of the appeals, entered by the district court based
on a stipulation of the parties, is currently in place.
We have jurisdiction under 28 U.S.C. § 1292(a)(1). A
district court’s denial of a preliminary injunction is reviewed
for abuse of discretion, a “limited and deferential” standard.
Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir.
2004); see also X Corp. v. Bonta, 116 F.4th 888, 897 (9th

3
The third claim cited in the complaint, that the Ordinance restricts
Uber’s expressive associational rights in violation of the First
Amendment, has not been argued in this appeal.
12 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Cir. 2024). The underlying issues of law that led to that
decision, such as whether the Ordinance compels speech or
merely regulates conduct, are reviewed de novo. See Harris,
366 F.3d at 760.
II. First Amendment claims
Uber and Instacart argue that Seattle’s Ordinance
compels pure, content-based speech in violation of the First
Amendment in two ways. First, the notice requirement
compels speech by forcing the companies to communicate
their deactivation policies and decisions in writing and make
them accessible to workers. Second, the deactivation
standards regulate that speech’s content by requiring that the
companies’ policies be, in the words of the Ordinance,
“reasonably related” to “safe and efficient operations.”
A. Conduct
As the parties bringing the challenge, Plaintiffs “bear[]
the burden ‘to demonstrate that the First Amendment even
applies.’” B & L Prods., Inc. v. Newsom, 104 F.4th 108, 112
(9th Cir. 2024) (quoting Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 n.5 (1984)), cert. denied, 145
S. Ct. 1958 (2025). They fail to do so. The Ordinance
regulates conduct, not speech.
While “freedom of speech prohibits the government
from telling people what they must say,” Rumsfeld v. F. for
Acad. & Institutional Rts., Inc., 547 U.S. 47, 61 (2006), not
every law that results in a burden on speech is subject to
scrutiny as a regulation of speech. Restrictions on conduct
are subject to scrutiny only if the conduct includes a
“significant expressive element that drew the legal remedy
in the first place.” Arcara v. Cloud Books, Inc., 478 U.S. 697,
706 (1986). Here, the conduct that draws the remedy is the
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 13

unwarranted deactivation of worker accounts. When conduct
is nonexpressive, as is the case here, it is not subject to First
Amendment scrutiny. B & L Prods., 104 F.4th at 110; see
also Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011).
When determining whether a law regulates sufficiently
expressive conduct, a court may consider both the
“inevitable effect of a [law] on its face” and the law’s “stated
purpose.” HomeAway.com, Inc. v. City of Santa Monica, 918
F.3d 676, 685 (9th Cir. 2019) (quoting Sorrell, 564 U.S. at
565). We consider both in turn.
The inevitable effect of the Ordinance is to ensure that
network companies devise policies that do not result in
unwarranted deactivations of app-based workers’ accounts.
At its core, then, the Ordinance regulates a business
agreement between two parties: the network company and
the worker who uses the company’s platform to obtain gigs.
A business agreement between two parties is not conduct
with a significant expressive element. See B & L Prods., 104
F.4th at 114 (holding that acceptance of an offer to sell
firearms on state property is not conduct with a significant
expressive element); HomeAway.com, 918 F.3d at 685
(holding that booking a short-term rental through an online
platform is not conduct with a significant expressive
element); Int’l Franchise Ass’n, Inc. v. City of Seattle, 803
F.3d 389, 408 (9th Cir. 2015) (“A business agreement or
business dealings between a franchisor and a franchisee is
not conduct with a ‘significant expressive element.’”); see
also Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,
Council 31, 585 U.S. 878, 946 (2018) (Kagan, J., dissenting)
(noting that the Supreme Court “has rejected all attempts” to
make a First Amendment issue out of basic employment
matters).
14 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

The Ordinance’s stated purpose is to “protect[] and
promote[] public health, safety, and welfare by establishing
protections against unwarranted deactivations for app-based
workers.” Ordinance § 1.C. It does so by requiring network
companies to inform app-based workers of what actions
might lead to deactivation, Ordinance § 8.40.050.A.1,
presumably so they can conform their conduct to the
companies’ expectations, and by prohibiting policies that
might lead to unwarranted deactivation, id. § 8.40.050.A.2.
The Ordinance’s goal is to keep app-based workers informed
and employed while keeping the public safe. See id. § 1.
Nothing in the text of the Ordinance suggests an intent to
restrict speech. 4

4
The partial dissent takes issue with our reading of the Ordinance’s
stated purpose, arguing that it “is more ambiguous than the majority
says.” Partial Dissent at 38. The partial dissent appears to concede that
“protect[ing] and promot[ing] public health, safety, and welfare,”
Ordinance § 1.C, is the Ordinance’s stated purpose, but it adds another
purpose to the mix—“to compel [P]laintiffs’ publication of deactivation
policies.” Partial Dissent at 38. We disagree with that reading for two
reasons.
First, the text of subsection 1.H, which the partial dissent cites in
support of the additional purpose it proffers, simply reflects Seattle’s
finding that “[a]pp-based workers often do not have the information they
need to know about how they will be evaluated.” That subsection does
not displace the central purpose of the Ordinance, stated earlier in
subsection 1.C. Rather, it merely serves as one among many findings that
Seattle considered when enacting the Ordinance.
Second, and more fundamentally, even assuming that subsection
1.H does announce a purpose of the Ordinance, the partial dissent’s
reading isolates a small part of the law, and, in doing so, misses the
central purpose animating the Ordinance. In the First Amendment
context, the fact that other purposes may be inferred from a law’s text
does not bar us from recognizing that the law has a central stated
purpose. Cf. HomeAway.com, 918 F.3d at 685 (“The Ordinance itself
makes clear that the City’s ‘central and significant goal . . . is
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 15

Plaintiffs urge us to look beyond the law’s stated purpose
and to focus solely on the contested provisions. They argue
that subsections 8.40.050.A.1–2 do not prevent them “from
deactivating courier accounts on any ground, and the fact
that a separate provision addresses account deactivations
does not mean no First Amendment scrutiny applies.” But
this reading ignores the placement of these provisions “in the
context of the Ordinance as a whole.” Yim v. City of Seattle,
63 F.4th 783, 792 (9th Cir. 2023) (quoting First Resort, Inc.
v. Herrera, 860 F.3d 1263, 1274 (9th Cir. 2017)). To read
these provisions independently from the Ordinance would be
to orphan them from their purpose: preventing unwarranted
deactivations. 5

preservation of its housing stock and preserving the quality and nature
of residential neighborhoods.’” (alteration in original)). Our reading that
the Ordinance’s central purpose is to “protect[] and promot[e] public
health, safety, and welfare” is reinforced by the fact that, unlike any other
provision in section 1, the purpose articulated in subsection 1.C is
attributed to “[t]his ordinance,” that is, to the entirety of the law.
Ordinance § 1.C. Additionally, the words “health,” “safety,” and
“welfare” are repeated throughout the Ordinance with a regularity that
further underscores their centrality and significance to the Ordinance as
a whole. See, e.g., id. § 1.B (“public health, safety, and welfare”); id.
§ 1.C (same); id. § 1.V (“safety”); id. § 1.W (“welfare” and “health”).
Moreover, the Ordinance does not require Plaintiffs to communicate
a deactivation policy to anyone other than the workers affected by it and
does not require Plaintiffs to state their agreement with or support for the
limitations imposed by the City. Those points further demonstrate that
the central purpose of the Ordinance is to regulate the terms of network
companies’ deactivation of app-based workers, not to compel network
companies’ speech.
5
The partial dissent relies on the delayed ability of Seattle’s Office of
Labor Standards to fine network companies for violating the Ordinance’s
prohibition on unwarranted deactivations, see Ordinance § 8.40.130.B,
to argue that the requirement that network companies promulgate
16 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

The fact that the Ordinance, in Plaintiffs’ words,
necessarily “compel[s] and dictate[s] the content of a written
communication” does not transform a law regulating
nonexpressive activity into one that infringes speech. 6

deactivation policies that are reasonably related to the companies’ safe
and efficient operations is not incidental to the substantive provisions of
the Ordinance, Partial Dissent at 36–37. To the contrary, the delay
demonstrates that the substantive provisions are what count. An affected
app-based worker can sue a network company for any violation of any
provision of the Ordinance. Id. §§ 8.40.060.C, 8.40.230. The Office also
can enforce immediately the requirements that network companies create
internal procedures for app-based workers to challenge deactivations, id.
§ 8.40.060.B.1, that network companies provide relevant records to
workers who bring such challenges, id. § 8.40.080, that network
companies provide a written notice of rights under the Ordinance to
every app-based worker (a requirement that Plaintiffs do not challenge),
id. § 8.40.100, and that network companies not retaliate against workers
who exercise their rights under the Ordinance, id. § 8.40.120.B. The
delay on which the partial dissent relies merely reflects Seattle’s policy
decision to punish violators for unwarranted deactivations, by fining
them, only later. Forbearance of financial punishment does not logically
suggest that informing app-based workers about the kinds of conduct that
can lead to deactivation is more than incidental to establishing their right
to be free from unwarranted deactivation. Instead, this delay suggests
only that the City cares more about encouraging compliance with the
substance of the new Ordinance than about punishing violators.
6
Any suggestion in the partial dissent to the contrary is mistaken. The
partial dissent observes that the Ordinance requires Plaintiffs “to draft
and provide workers a written” deactivation policy. Partial Dissent at 34–
35. We agree that it does. See Ordinance § 8.40.050.A.1. The partial
dissent then concludes that “[t]he drafting and publication of such a
policy is speech” within the meaning of the First Amendment. Partial
Dissent at 35. We disagree.
As a threshold matter, the fact that speech may ensue incidentally
from a government regulation that otherwise concerns nonexpressive
conduct—here, network companies’ deactivation of app-based workers’
accounts—does not mean that such “speech” receives protection under
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 17

the First Amendment. The Supreme Court not only has concluded that
nonexpressive conduct is undeserving of First Amendment protection,
but also has held that not all activity conducted with an intent to express
an idea amounts to speech within the meaning of the First Amendment.
See, e.g., United States v. O’Brien, 391 U.S. 367, 376 (1968) (rejecting
the notion that, “whenever the person engaging in the conduct intends
thereby to express an idea,” the person engages in speech under the First
Amendment). We have followed suit. See, e.g., Edge v. City of Everett,
929 F.3d 657, 669 (9th Cir. 2019) (holding that the plaintiffs’ wearing of
bikinis while working was not protected by the First Amendment
because there was not a “‘great likelihood’ that their intended messages
related to empowerment and confidence will be understood by those who
view them”). That is why, even if the Ordinance were understood to be
“not wholly unrelated to a communicative component,” “that in itself
[would] not trigger First Amendment scrutiny.” Int’l Franchise Ass’n,
803 F.3d at 408.
Nor is the partial dissent’s invocation of X Corp. persuasive in
support of its conclusion that the Ordinance’s requirement that network
companies promulgate deactivation policies compels such companies to
engage in commercial speech. Partial Dissent at 35. In X Corp., as the
partial dissent notes, we observed that a social media company’s posting
of its “existing [terms of service] and content moderation policies” was
commercial speech. 116 F.4th at 901. But that observation was dictum.
On appeal, the plaintiff challenged only the relevant statute’s
requirements that social media companies submit to the state semiannual
reports detailing their content-moderation practices and the ways in
which their terms of service address, inter alia, hate speech or racism,
and that social media companies not materially omit or misrepresent
required information in such reports. Id. at 894, 898. Accordingly, we
did not consider the statute’s requirement that social media companies
publicly post their existing terms of service. Id. Moreover, in X Corp.,
we reaffirmed that commercial speech generally is “speech that does no
more than propose a commercial transaction,” id. at 900 (quoting United
States v. United Foods, Inc., 533 U.S. 405, 409 (2001)), and that the
“commercial speech analysis is fact-driven,” id. (quoting First Resort,
Inc. v. Herrera, 860 F.3d 1263, 1272 (9th Cir. 2017)), thereby rejecting
any sweeping suggestion that would have the unwarranted consequence
of designating much, if not all, activity with commercial indicia as
commercial speech that implicates the First Amendment. Regardless, as
18 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

“[C]ompelled changes in conduct—which might
incidentally compel changes in speech—are not reviewed as
content-based speech restrictions.” Olympus Spa v.
Armstrong, 138 F.4th 1204, 1216 (9th Cir. 2025). Plaintiffs
can still voice their displeasure with the Ordinance’s
standards, even while complying with them. Nothing
prevents Plaintiffs from releasing statements, posting
notices, or engaging the press in discussions about what
grounds for deactivation they believe are reasonably related
to the safety and efficiency of their businesses, including
those grounds that the Ordinance explicitly identifies as not
related to safety and efficiency. They can even include in the
communications to their workers, alongside the required
statements of their deactivation policies, a statement that
they disagree with the Ordinance’s requirements and the
City’s assessment of what is reasonably related to safe and
efficient operations. That is their right. But it is not their right
to disregard a valid economic regulation that targets neither
speech nor expressive conduct that is protected by the First
Amendment. See Int’l Franchise Ass’n, 803 F.3d at 408.
Like a law that prohibits employers from discriminating
on account of race, which requires removal of signs and
advertisements saying “White Applicants Only,” the
incidental speech requirement here “hardly means that the
law should be analyzed as one regulating the employer’s
speech rather than conduct.” Rumsfeld, 547 U.S. at 62; see
also Olympus Spa, 138 F.4th at 1216 (holding that a law that
prevented a spa from denying admission to transgender
women, which required the spa to change its conflicting
admissions policy, did not trigger First Amendment

discussed in Part II.B of this opinion, even assuming that the Ordinance
regulates commercial speech, it satisfies the applicable level of scrutiny.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 19

scrutiny). Instead, the Ordinance is like any well-established
anti-discrimination or workplace safety law: it requires
private companies to conform their internal policies to
minimum standards and to communicate those policies. The
Ordinance thus ensures that Plaintiffs are unable to carry out
an unlawful course of conduct by creating and disseminating
illegal deactivation policies. Rumsfeld, 547 U.S. at 62.
“When ‘the only inevitable effect, and the stated purpose’ of
a statute is to regulate nonexpressive conduct, our inquiry is
essentially complete.” B & L Prods., 104 F.4th at 116
(quoting HomeAway.com, 918 F.3d at 685). The Ordinance
governs nonexpressive conduct. Any burden on speech is
incidental.
B. Commercial Speech
In the alternative, Seattle argues that, if the Ordinance
regulates speech, then it is commercial speech subject to
lower scrutiny under the First Amendment. Plaintiffs insist
that the regulated speech is pure speech about controversial
issues and not commercial speech.
We agree with Seattle that even if the Ordinance
regulates speech, it is speech that “simply propose[s] a
commercial transaction.” 7 Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 760 (1976)
(quoting Bigelow v. Virginia, 421 U.S. 809, 822 (1975)). We
have already held that speech related to hiring people who
“perform temporary work” is commercial speech. Valle Del
Sol Inc. v. Whiting, 709 F.3d 808, 817–18 (9th Cir. 2013);
see also Pittsburgh Press Co. v. Pittsburgh Comm’n on

7
For purposes of this section of the opinion, we assume, without
deciding, that Plaintiffs are correct in their assertion that the Ordinance
regulates speech.
20 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Hum. Rels., 413 U.S. 376, 387–88 (1973) (holding that
employment advertisements are commercial speech);
Greater Phila. Chamber of Com. v. City of Philadelphia, 949
F.3d 116, 137 (3d Cir. 2020) (holding that speech involving
a “proposal of possible employment” is commercial speech).
Our precedents establishing that hiring communications
can be commercial speech cover the purported speech at
issue here. That speech is communication by Uber or
Instacart to temporary app-based workers about the
proposed terms of engagement, including the standards for
deactivation or termination of those workers’ accounts. The
Ordinance’s challenged provisions regulate how and when a
platform may prevent a worker from accessing its service to
seek employment. Whatever speech might be regulated by
the Ordinance is directly related to employment, however
temporary.
Plaintiffs invoke two recent decisions by this court to
argue that the Ordinance should be subject to greater
scrutiny than that applied to commercial speech. See
NetChoice, LLC v. Bonta, 113 F.4th 1101, 1111, 1121 (9th
Cir. 2024); X Corp., 116 F.4th at 894, 898. Both cases
involved state laws that regulated the speech of social media
companies by requiring that they submit reports to the
government that identified harmful speech and described
what the companies were doing to address the problem. That
requirement distinguishes these cases from the one before
us. In both NetChoice and X Corp., we held that the reports
were not commercial speech subject to intermediate
scrutiny, but instead were compelled speech subject to strict
scrutiny, because they required businesses to provide their
own conclusions about “highly controversial issues of public
concern.” NetChoice, 113 F.4th at 1120; see X Corp., 116
F.4th at 901–03. We noted that these reports required
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 21

businesses to go beyond “opining about their products or
services,” NetChoice, 113 F.4th at 1120, and instead
communicate their “opinions about and reasons for those
policies,” X Corp., 116 F.4th at 901 (emphasis added).
Here, the Ordinance regulates Plaintiffs’ deactivation
policies and requires communication of the policies to the
workers subject to them. Unlike the social media
companies—which were required to speak on topics
“disconnected from any economic transaction” like hate
speech, online harassment, and content harmful to children,
NetChoice, 113 F.4th at 1119—Plaintiffs are not subject to a
directive to produce a report. Instead, they must modify their
deactivation policies, if necessary to comply with the
Ordinance, and communicate those policies to their app-
based workers.
The reporting requirement differs in another key area.
Under both laws at issue in NetChoice and X Corp, social
media companies were required to produce communications
for an outside party: the government. Here, the Ordinance
applies only to internal communications between a company
and its app-based workers. It is a modern version of
established workplace disclosure laws—it makes no
difference whether such a disclosure occurs on bulletin
boards, via distribution of employee handbooks, or in an
online portal that only app-based workers may access. See
CompassCare v. Hochul, 125 F.4th 49, 65 (2d Cir. 2025)
(“[S]uch notice requirements are part of ‘a longstanding
tradition in this country’ supported by a ‘historical
warrant.’” (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S.
786, 795, 792 (2011))).
Assuming that the Ordinance does regulate commercial
speech, we conclude that the Ordinance satisfies the
22 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

attending, lower level of scrutiny. Commercial speech is still
subject to constitutional protections. We determine what
protection that speech receives depending on whether the
government is restricting or compelling speech. 8 Am.
Beverage Ass’n v. City & County of San Francisco, 916 F.3d
749, 755 (9th Cir. 2019) (en banc).
Under our precedent, we apply one of two separate
Supreme Court tests to laws regulating commercial speech.
CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832,
842 (9th Cir. 2019). When the government restricts or
prohibits commercial speech, we apply the test established
in Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557, 566 (1980). When
the government compels disclosure of commercial speech,
we apply the standard from Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 471
U.S. 626, 651 (1985). Here, because the Ordinance regulates
deactivation standards and requires companies to
communicate those standards to their workers, the
appropriate test is the one articulated in Zauderer.
Subsection 8.40.050.A.1—which requires network
companies to inform app-based workers of their deactivation
policies—meets the test drawn from Zauderer. “[T]he
government may compel truthful disclosure in commercial
speech as long as the compelled disclosure is reasonably
related to a substantial governmental interest and involves
purely factual and uncontroversial information that relates to

8
During oral argument, both Plaintiffs requested that we resolve the case
before us on the merits rather than remand to the district court. The
record is sufficiently developed for us to decide how the law applies, so
we do. See X Corp., 116 F.4th at 898 (rejecting the district court’s
application of Zauderer and instead applying strict scrutiny).
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 23

the service or product provided.” CTIA, 928 F.3d at 842
(citation modified). Additionally, if such compelled
disclosure is “unjustified or unduly burdensome,” it might
not pass constitutional muster. Zauderer, 471 U.S. at 651.
“There is no question that protecting the health and
safety of [workers] is a substantial governmental interest.”
CTIA, 928 F.3d at 845. The provision requires network
companies to inform workers of what situations may lead to
account deactivation and resulting lost income, which is
reasonably related to Seattle’s goals. The notice is purely
factual and concerns only the service provided, because it
contains details of a company’s deactivation policies.
Because the disclosure does not “force [Plaintiffs] to take
sides in a heated political controversy,” id. at 848, or purport
to compel speech on—or analogous to—matters we have
previously identified to be controversial, see, e.g., id. at 845
(noting abortion as a matter of controversy), it is
noncontroversial. 9 Further, the notice requirement can be

9
The partial dissent asserts that the content of network companies’
deactivation policies is not purely factual and uncontroversial because
the Ordinance “requires more than a mere notice of rights”; the partial
dissent claims that it also requires Plaintiffs to “publish their opinions on
what behaviors or standards are reasonably related to safety or to
efficiency.” Partial Dissent at 40. We are unpersuaded by this
characterization. For one thing, once a deactivation policy is issued, it
will be “literally true.” Whether or not the network company issuing the
deactivation policy would have devised its policy differently had the City
enacted different labor regulations, or no regulations at all, the policy
will truthfully and accurately identify the conduct of app-based workers
that could lead to deactivation. The policy will reflect facts. CTIA, 928
F.3d at 847.
More broadly, as we recently observed, “a purely factual statement
does not become controversial simply because it ‘can be tied in some
way to a controversial issue.’” Foothills Christian Ministries v. Johnson,
148 F.4th 1040, 1054 (9th Cir. 2025) (quoting CTIA, 928 F.3d at 845),
24 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

satisfied by a single webpage and is therefore not unduly
burdensome.
Subsection 8.40.050.A.2—which requires that the
deactivation policies be “reasonably related” to the
companies’ “safe and efficient operations”—regulates at
most speech related to what Seattle has designated as
unlawful activity: the unwarranted deactivations of worker
accounts. Any challenge involving the restriction of
commercial speech must first satisfy a threshold inquiry that
the communication be “neither misleading nor related to
unlawful activity.” World Wide Rush, LLC v. City of Los
Angeles, 606 F.3d 676, 684 (9th Cir. 2010) (quoting Cent.
Hudson, 447 U.S. at 564). Even if we accept Plaintiffs’

petition for cert. filed, No. 25-802 (U.S. Jan. 5, 2026). That observation
applies here. The recognition that the concepts of safety and efficiency
could generate differing views among various stakeholders in the context
of devising deactivation policies, see Partial Dissent at 40, is insufficient
to render the required disclosure of the deactivation policies
controversial. See id. (“[A] compelled statement is controversial when it
takes ‘sides in a heated political controversy,’ and forces the speaker ‘to
convey a message fundamentally at odds with its mission.’” (quoting
CTIA, 928 F.3d at 845)).
It also bears emphasis that, if a network company disagrees with the
Ordinance’s examples of policies that are not reasonably related to safe
and efficient operations, the company may elect to express its
disagreement, even alongside the policy itself. This matters because the
ability to register one’s disagreement, even while complying with the
Ordinance, dispels any “forced association” between the discloser (the
network company) and the disclosure (the Ordinance-compliant
deactivation policy), thereby undermining any suggestion of
compulsion. See Pharm. Rsch. & Mfrs. of Am. v. Stolfi, 153 F.4th 795,
812 (9th Cir. 2025) (quoting Pharm. Care Mgmt. Ass’n v. Rowe, 429
F.3d 294, 316 (1st Cir. 2005)), petition for cert. filed, No. 25-1018 (U.S.
Feb. 24, 2026).
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 25

contention that the Ordinance regulates commercial speech,
it is not an impermissible regulation of that speech. 10
Plaintiffs have not demonstrated that the Ordinance
violates the First Amendment.
III. Vagueness claim
A municipal ordinance violates the Fourteenth
Amendment if it either fails to provide a “person of ordinary
intelligence a reasonable opportunity to know what is
prohibited,” or if it is so standardless that it may be applied
in an arbitrary or discriminatory manner. Vill. of Hoffman
Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498
(1982) (quoting Grayned v. City of Rockford, 408 U.S. 104,
108–09 (1972)). Plaintiffs make much of the fact that “law[s]
interfere[ing] with the right of free speech” are subject to a

10
The partial dissent faults us for conflating the two tests for commercial
speech. Partial Dissent at 41. Specifically, it observes that the threshold
inquiry of whether the purported speech relates to unlawful activity is an
element of the Central Hudson test for regulation of commercial speech,
not the Zauderer test for compulsion of commercial speech. Partial
Dissent at 41. The threshold inquiry is indeed an element of Central
Hudson, and we do not purport to import it into Zauderer. Rather, in
considering Plaintiffs’ assertion that Central Hudson applies, we
conclude that their argument falters at Central Hudson’s doorstep. This
matters because we have already observed that Zauderer sets forth a
“more permissive standard” than that articulated in Central Hudson. See
Pharm. Rsch. & Mfrs. of Am., 153 F.4th at 808; see also id. at 810–11
(explaining that, if a “law[] that compel[s] certain information to be
communicated directly from one private entity to another” regulates
commercial speech, “courts apply either intermediate scrutiny,” pursuant
to Central Hudson, “or a lower level of scrutiny akin to rational basis
review,” pursuant to Zauderer). Plaintiffs fail to show that the Ordinance
violates the First Amendment even under the more rigorous test in
Central Hudson; a fortiori, the Ordinance passes the more permissive
standard in Zauderer.
26 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

“stringent” application of that test. Id. at 499. As explained
above, however, we reject Plaintiffs’ premise that the
Ordinance restricts speech. Instead, we are guided by the
Supreme Court’s standard for economic regulation, which is
“subject to a less strict vagueness test . . . because
businesses, which face economic demands to plan behavior
carefully, can be expected to consult relevant legislation in
advance of action.” Id. at 498.
Plaintiffs argue that the Ordinance’s deactivation
standard provision in subsection 8.40.050.A.2 is void for two
reasons. First, the word “reasonable” does not supply
adequate guidance to follow the law. Second, the examples
of what is not reasonably related to safety and efficiency are
so contradictory as to be more confusing than clarifying. We
are unpersuaded by both arguments.
The term “reasonable” is a well-established standard that
is widely employed in both statutory and common law. As
the district court pointed out, Plaintiffs must satisfy a
reasonableness inquiry to succeed on their vagueness claim.
Additionally, the Ordinance’s text supplements the term by
delineating between what is and is not a permissible reason
to deactivate an account. See First Resort, 860 F.3d at 1274
(“[I]mprecise terms may avoid vagueness problems when
used in combination with terms that provide sufficient
clarity.” (quoting Human Life of Wash., Inc. v. Brumsickle,
624 F.3d 990, 1021 (9th Cir. 2010))). For example, the bar
on deactivations based on customer ratings is limited by the
word “solely.” Ordinance § 8.40.050.A.2.e. (“Any policy
that would result in a deactivation based solely on a
quantitative metric derived from aggregate customer ratings
of an app-based worker’s performance[.]” (emphasis
added)).
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 27

Seattle passed the Ordinance out of its concern that
companies like Uber and Instacart relied on algorithms to
deactivate accounts automatically. Its concern was
magnified by the City’s belief that customer ratings are
“highly likely” to be influenced by bias against workers of
certain races and ethnicities. Id. § 1.L. For those reasons, the
Ordinance dictates that an account deactivation may not be
based “solely” on customer ratings. Id. § 8.40.050.A.2.e.
Deactivation based on more than that—for instance,
including review of comments that accompany customer
ratings—is not prohibited.
Plaintiffs may be right that a person of ordinary
intelligence could “reasonably think [that quantitative
metrics] relate to safety and efficiency,” but that same person
could also understand, once the concern for discrimination
was identified, that deactivation based solely on customer
ratings is unreasonable. We also note that the services
covered by the Ordinance and at issue here are delivery
services, not ridesharing. An Uber rideshare passenger has
an obvious basis to evaluate the safety of a ride; the recipient
of a delivery by Uber Eats does not. Because of this
distinction, Seattle may have thought it wise to designate
customer ratings as a less reliable indicator to assess safety
and efficiency in the context of delivery services. Regardless
of the policy considerations the City took into account when
enacting the Ordinance, in the context of a vagueness
challenge, what matters is not whether a person of ordinary
intelligence would agree with the content of or motivations
for a law, but rather whether they would understand its
dictates. Here, given the clarity afforded to the word
“reasonable” when that word is read within the context of
neighboring text and provisions in the Ordinance, we
conclude that they would.
28 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

Plaintiffs’ arguments that the other examples are more
confusing than clarifying fare no better. There are multiple
throughlines of policies in the list of examples. One of them
is safety. The bar on deactivations based on background
checks creates a carveout for reports that raise evidence of
“egregious misconduct,” id. § 8.40.050.A.2.h, or any “action
or behavior” that involves physical, economic, or emotional
harm, id. § 8.40.020. So, too, with the bar on deactivations
related to driving records: the Ordinance contains a carveout
for unsafe behavior, id. § 8.40.050.A.2.h, as defined by more
than three “moving violations or at-fault collisions” in less
than three years, id. § 8.40.020. These limitations help to
make clear what is and is not permitted under the law.
The Ordinance provides fair notice to a person of
ordinary intelligence as to what grounds for deactivation are
reasonably related to safety and efficiency. Plaintiffs may
disagree with standards imposed by the Ordinance or may
wish for more unfettered discretion in terminating a worker
or deactivating an account, but that does not make the
regulation vague.
IV. Conclusion
The Supreme Court has said, “[P]laintiff[s] seeking a
preliminary injunction must establish that [they are] likely to
succeed on the merits, that [they are] likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [their] favor, and that an injunction
is in the public interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). The first factor is “the most
important.” Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir.
2023) (quoting Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d
985, 989 (9th Cir. 2020)). If a movant cannot show a
likelihood of success on the merits, then a court “need not
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 29

consider the other factors.” Id. (quoting Disney Enters., Inc.
v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017)).
The Ordinance regulates the conduct of deactivating
worker accounts, not speech. But even if we accept
Plaintiffs’ contention that the Ordinance regulates speech, it
is commercial speech, and the Ordinance overcomes the
appropriate level of scrutiny under the First Amendment.
Plaintiffs also fail to show that the law is unconstitutionally
vague. Because Plaintiffs are unlikely to succeed on the
merits of their claim, the district court did not abuse its
discretion when it denied the preliminary injunction.
By affirming the authority of Seattle to enact and enforce
the Ordinance, we do not express a view on the merits of the
policy. Seattle has decided to enact the Ordinance, and the
policy judgments reflected in the Ordinance are the City’s.
Plaintiffs are not required to agree with this or any other
regulation but remain subject to them.
AFFIRMED.
30 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

APPENDIX

Seattle, Wash., Ordinance 126878, § 8.40.050 (Aug. 14,
2023) 11

8.40.050 Deactivation requirements

A. A network company shall adopt the following measures
prior to deactivating an app-based worker, except as
provided in subsections 8.40.050.C and 8.40.050.D:

1. Fair notice of deactivation policy. A network
company must inform the app-based worker in writing of the
network company’s deactivation policy, defining what
constitutes a violation that may result in deactivation. The
network company’s written deactivation policy must be
specific enough for an app-based worker to understand what
constitutes a violation and how to avoid violating the policy.
The deactivation policy must be available to the app-based
worker in English and any language that the network
company knows or has reason to know is the primary
language of the app-based worker. The deactivation policy
must be accessible to the app-based worker at least three
years after deactivation. The Director may issue rules
governing the form and description of the deactivation
policy, the manner of its distribution, and required languages
for its translation.

2. Reasonable policy. The policy that may lead to a
deactivation must be reasonably related to the network

11
Ordinance 126878, Off. of the City Clerk,
https://clerk.seattle.gov/search/ordinances/126878 (last visited Oct. 29,
2025).
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 31

company’s safe and efficient operations. Examples of
policies that are not reasonably related to the network
company’s safe and efficient operations include, but are not
limited to:

a. Any rule or policy that would result in a
deactivation based on an app-based worker’s
availability to work or number of hours worked,
consistent with subsection 8.37.080.A.1;

b. Any policy that would result in a deactivation
based on an app-based worker’s acceptance or
rejection of any individual offer, any types of offers,
or any number or proportion of offers, consistent
with subsection 8.37.080.A.2;

c. Any policy that would result in a deactivation
based on an app-based worker’s cancellation of an
offer with cause, consistent with subsection
8.37.080.C;

d. Any policy that would result in a deactivation
based on an app-based worker contacting the
network company;

e. Any policy that would result in a deactivation
based solely on a quantitative metric derived from
aggregate customer ratings of an app-based worker’s
performance;

f. Any policy that would result in a deactivation
based on statements by an app-based worker
regarding compensation and/or working conditions
32 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

made to customers, other app-based workers,
network companies, the media, public officials,
and/or the public;

g. Any policy that would result in a deactivation
based on an app-based worker asserting their legal
rights, whether in court or via procedures provided
by any local, state, or federal agency; and

h. Any policy that would deactivate a worker based
on the results of a background check, consumer
report, driver record, or record of traffic infractions,
except in cases of egregious misconduct or where
required by other applicable law.

3. Investigation. A network company must conduct a
fair and objective investigation prior to deactivating an app-
based worker. The investigation must be sufficiently
thorough to justify the deactivation and demonstrate an
unbiased and neutral view of facts collected. If the app-based
worker does not participate in the investigation or provide
relevant information, the network company may complete
the investigation based on available sources of information.

4. Confirmation of violation. The network company
must demonstrate by a preponderance of the evidence that
the alleged violation of the network company’s policy or rule
occurred.

5. Consistent application. The network company
must apply the rule or policy, and penalty for violations, in a
consistent manner.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 33

6. Proportionate penalty. The penalty of deactivation
must be reasonably related to the offense, and account for
mitigating circumstances, such as the app-based worker’s
past work history with the network company.

B. Deactivation of an app-based worker will be considered
unwarranted if the action is intended to or results in
discrimination or a discriminatory act.

C. Subject to the provisions of this Section 8.40.050 and
rules issued by the Director, a network company may
immediately deactivate an app-based worker if such action
is required to comply with any applicable court order or
local, state, or federal laws or regulations, or where an app-
based worker has engaged in egregious misconduct.

D. In the case of allegations of egregious misconduct, the
network company may deactivate the app-based worker
before completing an investigation. Except in extraordinary
circumstances, the investigation shall not take longer than 14
days. If the investigation is delayed due to extraordinary
circumstances, the network company must provide the app-
based worker with written notice that the investigation is
delayed, the reason(s) for the delay, and the date on which
the completion of the investigation is anticipated.
34 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

BENNETT, Circuit Judge, dissenting in part:

I agree with the Majority that the Ordinance is not
unconstitutionally vague. Unlike the majority, however, I
believe the Ordinance compels speech and is thus subject to
the First Amendment. While I agree with the majority’s
alternative reasoning that the speech at issue is commercial
speech and subject to intermediate scrutiny, I believe
Plaintiffs have raised serious questions going to the merits.
Here, the district court found that the Ordinance had no First
Amendment implications, 1 and I believe that to be error. I
would therefore vacate and remand to have the district court
redo its analysis on the merits and reexamine the Winter
factors 2 in light of a determination that the Ordinance is
subject to intermediate scrutiny, and in light of the current
facts. Thus, I respectfully dissent, in part.
i. The Ordinance compels speech.
The majority concludes that the Ordinance “regulates
conduct, not speech,” and that “the conduct that draws the
remedy is the unwarranted deactivation of worker accounts,”
Maj. Op. at 12. The Ordinance does regulate conduct by
prohibiting unwarranted deactivations. Ordinance
§ 8.40.060.A.1. But it also compels speech, and that
regulation of speech also draws a remedy. The Ordinance
requires plaintiffs to draft and provide workers a written

1
“The starting point of the Court’s analysis is whether the Ordinance
presents a restriction on speech. The Court finds that the Ordinance does
not, and that the First Amendment claim is unlikely to succeed on the
merits.”
2
Because the district court found that the Ordinance had no First
Amendment implications, its analysis of the other Winter factors was
cursory.
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 35

“deactivation policy, defining what constitutes a violation
that may result in deactivation,” id. § 8.40.050.A.1, and
which “must be reasonably related to the network company’s
safe and efficient operations,” id. § 8.40.050.A.2.
The drafting and publication of such a policy is speech. 3
In a recent case, we specifically noted that the publication of
“existing [terms of service] and content moderation policies
may be commercial speech,” if not pure compelled speech
subject to even more rigorous scrutiny. See X Corp. v.
Bonta, 116 F.4th 888, 901 (9th Cir. 2024). And the Supreme
Court has held that “the creation and dissemination of
information are speech within the meaning of the First
Amendment.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 570
(2011). Indeed, “[i]f the acts of ‘disclosing’ and ‘publishing’
information do not constitute speech, it is hard to imagine
what does fall within that category.” Bartnicki v. Vopper,
532 U.S. 514, 527 (2011) (quoting Bartnicki v. Vopper, 200
F.3d 109, 120 (3d Cir. 1999)). Because it is “well-
established that the forced disclosure of information, even
purely commercial information, triggers First Amendment
scrutiny,” NetChoice, LLC v. Bonta, 113 F.4th 1101, 1117
(9th Cir. 2024), the Ordinance’s deactivation policy

3
Contrary to the majority, I believe the present case is unlike O’Brien
and City of Everett—it concerns speech itself, not expressive conduct.
The drafting of a policy text, making trade-offs between competing and
controversial values, and proclaiming that certain internal regulations are
or are not “reasonably related to safety and efficiency,” are orders of
magnitude more expressive than simply “wearing bikinis while
working.” Edge v. City of Everett, 929 F.3d 657, 662 (9th Cir. 2019).
And the O’Brien Court declined to hold that expressive conduct, such as
the burning of a draft card, is outside the scope of the First Amendment.
United States v. O’Brien, 391 U.S. 367, 376 (1968).
36 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

requirement compels speech subject to the First
Amendment.
To some extent, the majority acknowledges that sections
8.40.050.A.1–2 of the Ordinance not only regulate conduct
but also compel speech. The majority appears to concede
“[t]he fact that the Ordinance, in Plaintiffs’ words,
necessarily ‘compel[s] and dictate[s] the content of a written
communication.” See Maj. Op. at 16. However, the
majority finds that “this reading ignores the placement of
these provisions ‘in the context of the Ordinance as a
whole,’” and that “[t]o read these provisions independently
from the Ordinance would be to orphan them from their
purpose: preventing unwarranted deactivations.” Id. at 15
(quoting Yim v. City of Seattle, 63 F.4th 783, 792 (9th Cir.
2023)). The majority therefore concludes that these
“[c]ompelled changes in conduct—which might incidentally
compel changes in speech—are not reviewed as content-
based speech restrictions.” Id. at 18 (quoting Olympus Spa
v. Armstrong, 138 F.4th 1204, 1216 (9th Cir. 2025)). I
disagree with this conclusion for three reasons.
First, the Ordinance’s compulsion of speech is not
incidental to its prohibition on unwarranted deactivations.
The prohibition on unwarranted deactivations and the
requirement to promulgate a deactivation policy of a certain
kind are distinct and separately enforceable. See Ordinance
§ 8.40.140 (“The failure of any respondent to comply with
any requirement imposed on the respondent under this
Chapter 8.40 is a violation.”); id. § 8.40.170.E (empowering
the Director of the Office of Labor Standards to “assess fines
for a violation of this Chapter” including under § 8.40.050).
In fact, while the Office of Labor Standards has been
empowered since January 1, 2025, to “administer and
enforce” the deactivation policy requirement, the Office is
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 37

prohibited from enforcing the prohibition on unwarranted
deactivations until June 1, 2027. Id. §§ 8.40.130.A, B.
Thus, for the twenty-nine months following enactment,
including now, the Ordinance empowers the Office to assess
fines only for violations of the speech regulation, and not for
violations of the conduct regulation. 4 And we have held that
we cannot “ignore that the [challenged] requirement
compels speech simply because other parts of the
[challenged law] may primarily or exclusively regulate non-
expressive conduct.” NetChoice, 113 F.4th at 1117. 5 That
is because the government “cannot insulate a specific
provision of law from a facial challenge under the First
Amendment by bundling it with other, separate provisions
that do not implicate the First Amendment.” Id.
Second, by concluding based on the Ordinance’s
“purpose” that the speech regulation is incidental to the
conduct regulation, the majority, I believe, applies the wrong
test. We consider a law’s “stated purpose” when
determining whether the conduct that the law regulates is

4
I am unconvinced by the majority’s argument that “this delay suggests
only that the City cares more about encouraging compliance with the
substance of the new Ordinance than about punishing violators.” Maj.
Op. 16 n.5. First, it does not matter whether Seattle cares more about
encouraging compliance or punishing violators. Nor does it matter
whether Seattle cares more about preventing unwarranted deactivations
or promoting transparency. The Ordinance aims at both, and does not
compel speech only incidentally to its regulation of conduct.
5
Seattle argues that NetChoice is distinguishable on this point because,
in that case, we found the regulation was subject to the First Amendment
because the regulated speech was “disconnected from any economic
transaction.” NetChoice, 113 F.4th at 1119. But Seattle misreads
NetChoice. The absence of a connection to an economic transaction is
the reason we applied strict scrutiny in NetChoice—it is not the reason
we found the statute to regulate speech. Id. at 1119–21.
38 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

sufficiently expressive to fall within the purview of the First
Amendment. HomeAway.com, Inc. v. City of Santa Monica,
918 F.3d 676, 685 (9th Cir. 2019) (quoting Sorrell, 564 U.S.
at 565). That test is inapplicable here because the
Ordinance’s speech regulation is separate from its conduct
regulation, and we can consider the statutory purpose only if
the law regulates conduct rather than speech.
Third, the Ordinance’s “stated purpose” is more
ambiguous than the majority says. Quoting from the
Ordinance’s findings and declarations, the majority
identifies the Ordinance’s purpose as to “protect[] and
promote[] public health, safety, and welfare by establishing
protections against unwarranted deactivations for app-based
workers.” Maj. Op. at 10, 14 (quoting Ordinance § 1.C).
The majority concludes that the purpose of the Ordinance is
to prevent unwarranted deactivations and not to compel
speech. But the same section of the Ordinance also reflects
a purpose to compel plaintiffs’ publication of deactivation
policies, separate from the prevention of any deactivation
decisions. See id. § 1.H (“App-based workers often do not
have the information they need to know about how they will
be evaluated.”). At least one purpose of the Ordinance is,
therefore, to compel plaintiffs to share information about
how app-based workers will be evaluated. Because
disclosure of such information is speech subject to First
Amendment scrutiny, Sorrell, 564 U.S. at 570; NetChoice,
113 F.4th at 117; X Corp., 116 F.4th at 901, the Ordinance’s
stated purpose was, in part, to compel speech. 6

6
The majority wrongly contends that my reading “isolates a small part
of the law, and, in doing so, misses the central purpose animating the
Ordinance.” Maj. Op. 14 n.4. The Ordinance aims not only at decreasing
unwarranted deactivations, but also at increasing transparency. I do not
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 39

I therefore disagree with the majority’s conclusion that
the Ordinance does not regulate speech.
ii. Plaintiffs raise serious questions on the merits.
I agree with the majority 1) that the speech at issue is
commercial speech, and 2) that the so-called Zauderer
standard applies to the commercial speech compelled by the
Ordinance. See Zauderer v. Off. of Disciplinary Counsel,
471 U.S. 626 (1985); see also Maj. Op. at 22–23. But I
disagree with the majority’s decision to conduct the
Zauderer analysis in the first instance. Because the district
court concluded that the Ordinance does not compel speech,
it “had no occasion to conduct a further inquiry into whether
[the Ordinance], as a speech regulation, survived First
Amendment scrutiny.” Expressions Hair Design v.
Schneiderman, 581 U.S. 37, 48 (2017). We should therefore
remand for the district court to consider “whether the law
can be upheld as a valid disclosure requirement under
Zauderer.” Id.
Moreover, unlike the majority, I believe that plaintiffs at
least raise a serious question on the merits as to whether the
Ordinance satisfies the Zauderer standard. “Under Zauderer
as we interpret it today, the government may compel truthful
disclosure in commercial speech as long as the compelled
disclosure is ‘reasonably related’ to a substantial
governmental interest and involves ‘purely factual and
uncontroversial information’ that relates to the service or

distort the Ordinance by noting that it compels speech, §§ 8.40.050.A.1–
2, based on separate policy findings, § 1.H, and that it establishes an
enforcement regime separate from the regime regulating unwarranted
terminations, §§ 8.40.140, 170.E. Rather, it is the majority that
improperly cabins the Ordinance by focusing exclusively on its separate
regulation of conduct.
40 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

product provided.” CTIA – The Wireless Ass’n v. City of
Berkeley, 928 F.3d 832, 842 (9th Cir. 2019) (first quoting
Zauderer, 471 U.S. at 651, then quoting Nat’l Inst. of Fam.
& Life Advocs. v. Becerra, 585 U.S. 755, 768 (2018)).
The speech compelled here is not purely factual and
uncontroversial information. The speech regulation requires
more than a mere notice of rights—that is separately
required by a distinct section of the Ordinance. See
§ 8.40.100. The speech regulation instead requires plaintiffs
to formulate and publish their opinions on what behaviors or
standards are reasonably related to safety or to efficiency.
These are not purely factual determinations but are instead
plaintiffs’ opinions. And they are likely to be controversial
opinions. This is especially so because safety and efficiency
are often in tension, and plaintiffs’ policies will have to
balance these two values. Plaintiffs will likely also balance
these two values against others, such as customer
satisfaction, profitability, and administrability, because the
Ordinance does not require that the policy be related solely
to safety and efficiency. Any balance of these oft-competing
values is likely to be controversial. Different stakeholders—
including users, workers, employees, shareholders, and
traffic authorities—are bound to have different perspectives
on where the best balance lies. 7 Because the Ordinance

7
I do not agree with the majority that this material is purely factual and
uncontroversial simply because “once a deactivation policy is issued, it
will be ‘literally true.’” Maj. Op. 23 n.9. Yes, once the policy is
published, there will be a “fact” as to what the policy says. But that is
true of all speech. And there will remain, after publication, no “fact” as
to the best balance of safety, efficiency, and other values, and no “fact”
as to which internal regulations are “reasonably related” to these values.
Nor, contrary to the majority’s suggestion, could the injury to the
companies’ First Amendment rights be fully ameliorated by the
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 41

compels commercial speech that is not or at least may not be
“purely factual and uncontroversial information,” it
potentially violates the First Amendment. See CTIA, 928
F.3d at 842.
The majority states that the speech regulation is
nonetheless permissible because any challenge to it “must
first satisfy a threshold inquiry that the communication be
‘neither misleading nor related to unlawful activity.’” Maj.
Op. at 24 (quoting World Wide Rush, LLC v. City of Los
Angeles, 606 F.3d 676, 684 (9th Cir. 2010)). The majority
finds that the speech regulation “regulates at most speech
related to . . . unlawful activity: the unwarranted
deactivations of worker accounts.” Id. The majority
concludes that plaintiffs’ challenge thus fails this “threshold
inquiry.” See id. But the majority’s threshold inquiry does
not apply to challenges to compelled speech—it governs
only challenges to restrictions on speech. See World Wide
Rush, 606 F.3d at 684–85. And, in any case, the speech here
is unrelated to (or not solely related to) unlawful activity.
The majority’s “threshold inquiry” is taken from World
Wide Rush, a case involving a challenge to a restriction on
speech, not to a compulsion of speech. See World Wide
Rush, 606 F.3d at 680, 685. World Wide Rush, in turn,
derived this test from Metro Lights, L.L.C. v. City of Los
Angeles, which was also a speech restriction case. 551 F.3d
898 900, 903 (9th Cir. 2009). And Metro Lights identifies
this “threshold matter” as an element of the Central Hudson
test, not the Zauderer test. See Metro Lights, 551 F.3d at

company’s ability “to express its disagreement, even alongside the
policy itself.” Id. The Ordinance requires the companies to make and
publish their judgment about what is “reasonably related.”
§§ 8.40.050.A.1–2.
42 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

903–04 (describing the requirement that “the
communication [be] neither misleading nor related to
unlawful activity” as an “element[] of the Central Hudson
test” (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n, 447 U.S. 557, 566 (1980))). Because, as even the
majority acknowledges, Maj. Op. at 25 n.10, the Central
Hudson test is not applicable to this case, plaintiffs need not
show that their speech is unrelated to unlawful activity.
This distinction matters because, even though
Zauderer’s rational basis standard is “more permissive” than
Central Hudson’s intermediate scrutiny standard, see
Pharm. Rsch. & Mfrs. of Am. v. Stolfi, petition for cert. filed,
No. 25-1018 (U.S. Feb. 24, 2026), 153 F.4th 795, 808 (9th
Cir. 2025), “one size does not fit all in commercial speech
cases,” CTIA, 928 F.3d at 842. The two tests have different
triggering conditions, see id., and a regulation that survives
Central Hudson review is therefore not guaranteed to
survive Zauderer review.
In any event, the majority is wrong to conclude that the
speech is related to unlawful activity. The majority
concludes that by requiring that deactivation policies be
reasonably related to safe and efficient operations, the
Ordinance simply regulates speech related to unlawful
activity—namely, speech related to unwarranted
deactivations. I believe that this conclusion is both circular
and incorrect. The Ordinance defines “unwarranted
deactivation” as “a deactivation that does not comply with
Section 8.40.050.” Ordinance § 8.40.020. But § 8.40.050
does not contain any freestanding limits on when
deactivation is prohibited. In other words, it does not
proscribe the firing of an app-worker for a reason unrelated
to safe and efficient operations. Instead, it prohibits only
certain forms of deactivation policy and describes when a
UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE 43

policy would fail to be reasonably related to safe and
efficient operations. Id. §§ 8.40.050.A.1–2. It then prohibits
companies from deactivating a worker without the results of
an investigation finding that the worker violated the
company’s deactivation policy. Id. §§ 8.40.050.A.3.1–5. In
other words, it is not unlawful to deactivate workers for
reasons unrelated to safe and efficient operations. It is
unlawful to speak a policy that is unrelated to safe and
efficient operations; and it is unlawful for a company to
violate its own deactivation policy. Thus, this is not a
regulation of speech related to unlawful activity, but a direct
regulation of speech itself.
I think it is far from clear that Seattle is likely to prevail
on the merits. At the very least, I believe that plaintiffs have
raised serious questions going to the merits.
iii. We should remand for the district court to reanalyze
the Ordinance under intermediate scrutiny and to
reexamine the other Winter factors.
In addition to likelihood of success on the merits, a
district court considering a motion for a preliminary
injunction must consider whether the movant will likely
suffer irreparable harm without the injunction, whether the
balance of the equities favors the movant, and whether a
preliminary injunction is in the public interest. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “It is
well-established that the first factor is especially important
when a plaintiff alleges a constitutional violation and
injury.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th Cir. 2023).
A determination a plaintiff alleging such an injury is likely
to prevail on the merits “usually demonstrates he is suffering
irreparable harm” and “tips the public interest sharply in his
favor.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th Cir. 2023).
44 UBER TECHNOLOGIES, INC. V. CITY OF SEATTLE

“As a general matter, district courts ‘must consider’ all four
Winter factors.” Id. at 1040 (quoting Vivid Ent., LLC v.
Fielding, 774 F.3d 566, 577 (9th Cir. 2014)). But because
the first factor is most important, if a movant fails to show
likelihood of success on the merits, “the court need not
consider the other factors in the absence of ‘serious
questions going to the merits.’” Disney Enterps, Inc. v.
VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–
35 (9th Cir. 2011)).
Plaintiffs have at least raised a serious question going to
the merits. In my view, therefore, the district court must
consider all four Winter factors. Baird, 81 F.4th at 1041.
And I believe that the district court must decide in the first
instance whether the Ordinance survives Zauderer review.
Expressions Hair Design, 581 U.S. at 48. Here, its review
of the other three factors was cursory, dividing only four
sentences between them. Further, the district court’s
analysis of these three factors was based on what I believe
was its erroneous analysis of questions going to the merits.
Moreover, since the district court’s decision, plaintiffs have
issued deactivation policies in light of the Ordinance. The
district court has had no opportunity to consider how the
issuance of these policies, and Seattle’s response or lack
thereof, has affected the equities or the existence of
irreparable harm.
Accordingly, I would remand for reconsideration of all
four Winter factors. I therefore respectfully dissent, in part.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11270367. Public record. Not legal advice.