Opposition Brief — Vugo, Inc., Petitioner v. City of New York, New York

Supreme Court briefMar 20, 2020

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No. 19-792

IN THE

Supreme Court of the United States

VUGO, INC.

Petitioner,

CITY OF NEW YORK,

_________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

JAMES E. JOHNSON

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Respondents

RICHARD DEARING*

CLAUDE S. PLATTON

JAMISON DAVIES

*Counsel of Record

COUNTERSTATEMENT OF

QUESTION PRESENTED

A regulation of the City of New York restricts

advertising in for-hire vehicles booked in advance,

such as those operated by Uber and Lyft. Petitioner

seeks to place electronic advertisements on tablet

computers located right in front of where

passengers sit when they ride in for-hire vehicles.

Petitioner challenged the City’s restriction under

the First Amendment, claiming that it failed the

four-part test for commercial-speech regulations

first articulated in Central Hudson Gas & Electric

Corp. v. Public Services Commission of New York,

447 U.S. 557 (1980). Petitioner did not argue that

strict scrutiny applied. The U.S Court of Appeals

for the Second Circuit held that the restriction

satisfied the Central Hudson test. The question

presented is:

Should the Court overrule Central Hudson and

hold that regulations of commercial speech are

subject to strict scrutiny?

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION

PRESENTED ............................................................ i

TABLE OF AUTHORITIES ................................... iii

INTRODUCTION .................................................... 1

STATEMENT ........................................................... 2

A. New York City’s restrictions on

advertising in for-hire vehicles ................ 2

B. The lower courts’ application of

Central Hudson to Vugo’s challenge

to the advertising restriction in forhire vehicles ............................................. 4

REASONS TO DENY THE PETITION .................. 7

A. Petitioner conceded the applicability

of Central Hudson below and did not

argue for strict scrutiny. .......................... 7

B. There is no split of authority on the

question presented in any event. .......... 10

C. Petitioner’s additional objections to

Central Hudson do not merit this

Court’s review. ....................................... 16

CONCLUSION ....................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

1-800-411-Pain Referral Serv., LLC v.

Otto,

744 F.3d 1045 (8th Cir. 2014)........................... 16

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001)............................................. 8

Am. Acad. of Implant Dentistry v.

Parker,

860 F.3d 300 (5th Cir. 2017) ............................ 13

Bd. of Trs. v. Fox,

492 U.S. 469 (1989)........................................... 19

Bevan & Assocs., LPA v. Yost,

929 F.3d 366 (6th Cir. 2019) .......................13, 14

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983)........................................19, 20

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011)......................................18, 19

In re Brunetti,

877 F.3d 1330 (Fed. Cir. 2017) ....................13, 16

iii

Central Hudson Gas & Elec. Corp. v.

Public Service Comm’n of N.Y.,

447 U.S. 557 (1980).................................... passim

City & Cnty. of San Francisco v.

Sheehan,

135 S. Ct. 1765 (2015)......................................... 7

Contest Promotions, LLC v. City &

Cnty. of San Francisco,

874 F.3d 597 (9th Cir. 2017) ............................ 12

Dex Media W., Inc. v. City of Seattle,

696 F.3d 952 (9th Cir. 2012) ............................ 20

ECM Biofilms v. FTC,

851 F.3d 599 (6th Cir. 2017) ............................ 14

Erznoznik v. Jacksonville,

422 U.S. 205 (1975)........................................... 18

Greater Phila. Chamber of Commerce

v. City of Philadelphia,

949 F.3d 116 (3d Cir. 2020) .........................13, 16

Kiser v. Kamdar,

831 F.3d 784 (6th Cir. 2016) ............................ 14

Lehman v. Shaker Heights,

418 U.S. 298 (1974)........................................... 17

Leibundguth Storage & Van Serv., Inc.

v. Vill. of Downers Grove,

939 F.3d 859 (7th Cir. 2019) cert

denied — S. Ct. —, 2020 U.S.

LEXIS 1492 (Mar. 2, 2020) ..........................12, 13

Members of City Council of City of Los

Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984)........................................... 17

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981)........................................... 17

Mo. Broadcasters Ass’n v. Lacy,

846 F.3d 295 (8th Cir. 2017) ............................ 16

Mo. Broadcasters Ass’n v. Schmitt,

946 F.3d 453 (8th Cir. 2020) ............................ 13

Nicopure Labs, LLC v. FDA,

944 F.3d 267 (D.C. Cir. 2019) ........................... 13

Ocheesee Creamery LLC v. Putnam,

851 F.3d 1228 (11th Cir. 2017)....................13, 16

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015)................................ passim

Retail Digital Network, LLC v. Prieto,

861 F.3d 839 (9th Cir. 2017) .......................13, 16

Riley v. Nat’l Fed’n of Blind of N.C.,

Inc.,

487 U.S. 781 (1988)........................................... 20

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011)................................14, 15, 16

Thomas v. Bright,

937 F.3d 721 (6th Cir. 2019) .......................13, 14

United States v. Williams,

504 U.S. 36 (1992)............................................... 7

Youakim v. Miller,

425 U.S. 231 (1976)............................................. 7

Other Authorities

Advertising on the Interior of For-Hire

Vehicles, N.Y.C. Council Int. No.

1866-2020 .......................................................... 10

N.Y.C. Admin. Code § 19-501 .................................. 2

N.Y.C. Admin. Code § 19-502(g) .............................. 2

N.Y.C. Admin. Code § 19-504(1) .............................. 2

N.Y.C. Charter § 2300.............................................. 3

N.Y.C. Taxi & Limousine Commission,

Improving Efficiency and

Managing Growth in New York’s

For-Hire Vehicle Sector (June 2019) .................. 3

INTRODUCTION

Petitioner Vugo Inc. asks the Court to grant

certiorari to overrule its decision in Central Hudson

Gas & Electric Corp. v. Public Service Commission

of New York, 447 U.S. 557 (1980), and hold that

any governmental regulation of commercial speech

is subject to strict scrutiny.

Certiorari should be denied. Most importantly,

this case does not properly raise the question

presented. Throughout the litigation Vugo conceded

that Central Hudson applied to its challenge to the

regulation of advertising in for-hire vehicles and

abandoned any argument for strict scrutiny. The

petition fails even to note Vugo’s consistent

acceptance of the Central Hudson framework, and

offers no justification for this Court to grant

certiorari to review a question that was neither

pressed nor passed on below. Moreover, before it

could reach the question presented, the Court

would have to consider whether the regulation is

actually directed at commercial speech or instead

limits both commercial and noncommercial

advertising. That issue, too, was neither fully

litigated nor resolved in the courts below.

The question presented also would not warrant

review if it were properly raised here, as

demonstrated by this Court’s recent denial of a

petition for certiorari presenting an identical

question. Vugo principally argues that Reed v.

Town of Gilbert, 135 S. Ct. 2218 (2015), requires

the application of strict scrutiny of commercialspeech regulations. But Reed did not mention

Central Hudson or address commercial speech, and

this Court has continued to apply its longstanding

commercial-speech doctrine since Reed. The courts

of appeals also consistently continue to apply

Central Hudson. The petition’s claim of a circuit

split rests on one circuit’s characterization of a

single

decision

from

another

circuit—a

characterization that is belied by the underlying

decision itself. Accordingly, there would be no

reason to grant review of the question presented

now, even if this case actually raised it.

STATEMENT

A. New

York

City’s

restrictions

advertising in for-hire vehicles

New York City extensively regulates the

transportation of passengers for hire, which is “a

vital and integral part of the transportation system

of the city.” N.Y.C. Admin. Code § 19-501. The Taxi

& Limousine Commission (TLC) is charged with

regulating transportation of passengers in the City,

both by taxicabs and for-hire vehicles (FHVs).

“Taxicabs” are yellow and green cabs, which are

the only vehicles allowed to pick up passengers by

street hail in the City. See N.Y.C. Admin. Code

§ 19-504(1). FHVs are vehicles “other than a

taxicab” that “carr[y] passengers for hire in the

city.” N.Y.C. Admin. Code § 19-502(g). FHVs are

either booked in advance through limousine

companies and similar businesses or procured

through app-based systems such as Uber and Lyft.

Although taxicabs once comprised the bulk of the

passenger-vehicle market in the City, today FHVs

make up a large and growing share of that market,

accounting for approximately three quarters of

daily trips. N.Y.C. Taxi & Limousine Commission,

Improving Efficiency and Managing Growth in New

York’s For-Hire Vehicle Sector at 6 (June 2019),

available at https://perma.cc/2J3P-LVRB. 1

The City’s Charter mandates that TLC promote

and protect the “comfort and convenience” of

passengers. N.Y.C. Charter § 2300. Over two

decades ago, TLC adopted regulations prohibiting

any advertising inside taxicabs except as

specifically authorized by the Commission (Pet. 7a).

TLC adopted similar rules for FHVs a few years

later, providing that vehicles “must not display any

advertising on the exterior or the interior of a ForHire Vehicle unless the advertising has been

authorized by the Commission” (Pet. 7a–8a, 66a).

TLC has authorized advertising in taxis only

once since the regulation came into force. In 2005,

concurrent with the adoption of requirements that

taxi owners install a new technology system to

The share of FHV trips has grown rapidly. The share

reflected in the record during this litigation, as of 2016, was

around one third (Pet. 6a).

show passengers their fare as it accumulates, allow

passengers to track their route, and accept credit

card payments, taxi owners were permitted to

install Taxi TV, an interior TV system that carries

advertisements (Pet. 8a–9a). The revenue from

advertising on Taxi TV was expected to offset some

of the cost to taxi owners of installing the new

required systems (Pet. 9a).

In a survey, about forty percent of respondents

found Taxi TV to be an “annoyance” and, in another

survey, about a third of respondents said that Taxi

TV and its advertisements was the thing they most

disliked about taxis (Pet. 10a, 21–22a). TLC has

thus taken steps to reduce and potentially

eliminate advertising in taxis (see Pet. 10a).

Because passenger rides in FHVs are prearranged, they do not need the same in-vehicle

technology for fare calculation, route tracking, and

credit-card payments (Pet. 10a–11a). As a result,

they were not required to install it, and they were

not permitted to advertise to offset the cost of

installation (Pet. 11a).

B. The lower courts’ application of Central

Hudson to Vugo’s challenge to the

advertising restriction in for-hire vehicles

1. Vugo, Inc., developed an advertising software

platform to display ads on a tablet placed on the

front seatback in FHVs—immediately in front of

where passengers typically sit (Pet. 11a). Its

devices do not allow passengers to turn them off or

mute them (id.). Vugo seeks to deploy its

technology in FHVs in New York City. Stymied by

the advertising ban, Vugo filed suit against the

City, alleging that the advertising restriction

violates the First Amendment and seeking to enjoin

its enforcement.

2. The United States District Court for the

Southern District of New York (Abrams, J.) granted

summary judgment for Vugo (Pet. 62a). Applying

the test first articulated by this Court in Central

Hudson Gas & Electric Corp. v. Public Services

Commission of New York, 447 U.S. 557 (1980), the

court concluded that, while the City had articulated

a substantial interest in promoting passenger

comfort, there was an insufficient fit between the

ban on in-ride advertising and the City’s asserted

interest because the advertisements on Taxi TV,

which the City permitted, are no less intrusive than

advertisements in FHVs would be (Pet. 57a–58a).

Moreover, the district court concluded that the City

could have furthered its stated interest by less

restrictive means (Pet. 58a–61a).

3. The Second Circuit unanimously reversed

(Pet. 2a). The court initially noted that the “the

advertising ban, on its face, also covers noncommercial advertising—and there is record

evidence that the ban has, in fact, been applied to

non-commercial advertising” (Pet. 13a n.5).

Nonetheless, the court accepted Vugo’s framing of

the case as a challenge to a regulation of

commercial speech. And, because Vugo had

“expressly concede[d]” that Central Hudson’s

intermediate-scrutiny

test

applied

the

challenged regulation (Pet. 14a–17a), the court

applied the Central Hudson test.

Under that analysis, the court first held that the

City’s interest in protecting the riding public “from

the offensive sight and sound of advertisements—

not their content—while they are traveling through

the city by car” was “clearly substantial” (Pet. 19a).

In particular, the City was justified in working to

protect “unwilling viewers against intrusive

advertising” in vehicles that now account for a

substantial number of daily passenger trips (Pet.

20a (quotation marks omitted)). The court next

held that the “harms [the City] recites are real” and

that the regulation will “alleviate them to a

material degree,” rejecting Vugo’s argument that

the regulation was unconstitutionally underinclusive (Pet. 21a–23a (quotation marks omitted)).

It also held that the limited exception for Taxi TV

did not undermine the City’s asserted interest in

protecting passengers from unwanted advertising

(Pet. 24a–33a). Finally, the Court held that the

regulation did not burden substantially more

speech than necessary to further the government’s

legitimate interests (Pet. 33a–36a).

4. Vugo’s petition for panel rehearing or

rehearing en banc was denied.

REASONS TO DENY THE PETITION

A. Petitioner conceded the applicability of

Central Hudson below and did not argue

for strict scrutiny.

This case does not properly raise the question

that petitioner asks the Court to review. Petitioner

consistently accepted that Central Hudson supplied

the appropriate framework for analyzing its

challenge and failed to press the argument that

Reed implicitly overruled the Central Hudson

standard and required the application of strict

scrutiny. In light of petitioner’s framing of the case,

moreover, the lower courts had no cause to decide

whether the challenged regulation even is a

restriction of commercial speech, rather than a

content-neutral limitation on the location of all

advertising within FHVs.

1. The Court “does not ordinarily decide

questions that were not passed on below.” City &

Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765,

1773 (2015); see also United States v. Williams, 504

U.S. 36, 41 (1992) (explaining that the “traditional

rule” precludes granting certiorari “when the

question presented was not pressed or passed upon

below” (quotation marks omitted)). The Court

considers a question not pressed or passed on below

only in “exceptional cases.” Youakim v. Miller, 425

U.S. 231, 234 (1976) (per curiam) (quotation marks

omitted). This is not such a case.

Throughout the litigation, Vugo accepted the

validity of the Central Hudson framework. As the

Second Circuit explained, “Vugo expressly

concede[d] that Central Hudson’s intermediate

scrutiny test applies” (Pet. 14a). The district court

likewise explained that “Vugo … does not object to

the Court applying Central Hudson” (Pet. 49a–

50a). The City took Vugo’s concession and argued

(correctly) that the regulation satisfied the Central

Hudson standard. And both the district court and

the Second Circuit evaluated the challenged

regulation under Central Hudson’s framework (Pet.

18a–36a, 50a–62a).

In its petition, Vugo takes an entirely different

tack, now arguing that strict scrutiny applies in

light of Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015). Vugo thus asks the Court to review an issue

that was not developed below and that neither the

district court nor the court of appeals passed on.

Vugo’s “shift in posture” is not a valid basis for

departing from this Court’s general rule and

reaching a question without the “benefit of any

lower court review.” Adarand Constructors, Inc. v.

Mineta, 534 U.S. 103, 108–09 (2001) (per curiam).

An exception is particularly unwarranted in

light of the fact that only one circuit court has

squarely passed on Vugo’s argument that Reed

supersedes Central Hudson (and rejected it—see

infra at 12). Not only is there no split of authority,

as Vugo incorrectly contends, but there is hardly

any authority at all. The Court should at a

minimum stay its hand until the courts of appeals

have had further opportunity to consider the issue.

2. Given Vugo’s concession that the Central

Hudson standard applied, the City and the lower

courts accepted Vugo’s framing of the case as a

commercial-speech challenge to which Central

Hudson applied. But, as both the City and the

Second Circuit pointed out, it is not obvious that

the regulation applies only to commercial speech.

The Second Circuit explained that “the advertising

ban, on its face, also covers non-commercial

advertising—and there is record evidence that the

ban has, in fact, been applied to non-commercial

advertising” (Pet. 13a n.5). The City also pointed

out that, if the regulation were construed as

applying to both commercial and noncommercial

advertising, it would be a valid content-neutral

time, place, and manner restriction (2d Cir. ECF

No. 49 at 18 n.4).

If the Court were to grant certiorari, it would

thus have to consider another question not pressed

or passed on below—whether the regulation applies

specifically to commercial speech. On its face the

regulation applies to all “advertising,” not just to

commercial advertising (Pet. 66a, 69a). And, as the

Second Circuit pointed out, “regulations that apply

generally to ‘advertising’ … may not necessarily be

content-based” (Pet. 14a n.6 (citing Lone Star Sec.

& Video, Inc. v. City of Los Angeles, 827 F.3d 1192,

1198-1200 (9th Cir. 2016)). Viewed as a contentneutral restriction, the regulation would not

implicate the question that Vugo asks this Court to

grant certiorari to resolve. 2

B. There is no split of authority on the

question presented in any event.

The question that Vugo asks the Court to decide

would also not be certworthy on its own terms if it

were presented here. Vugo’s primary contention is

that the Central Hudson test for regulations of

commercial speech is “at odds” with certain of the

Court’s recent First Amendment decisions and the

subject of a circuit split. These manufactured and

illusory conflicts present no question warranting

the Court’s review.

1. Vugo focuses on Reed v. Town of Gilbert, 135

S. Ct. 2218 (2015), claiming that it implicitly

overruled Central Hudson. That is incorrect.

In Reed, the Court considered a sign code that

treated ideological signs, political signs, and

temporary directional signs differently. 135 S. Ct.

at 2224–25. The Court held that the code’s facial

discrimination between the types of messages

conveyed by the three types of signs made the code

2 The case also might become moot before the Court could

decide it. A New York City Councilmember has introduced a

local law to amend the City’s administrative code to

advertising on electronic tablets in for-hire vehicles. See

Advertising on the Interior of For-Hire Vehicles, N.Y.C.

Council Int. No. 1866-2020, https://perma.cc/5Z7D-ZMX4.

“content based on its face,” id. at 2227, and the

town could provide no valid justification for

treating the types of signs differently, id. at 2231–

32. The case did not involve a regulation of

commercial speech, so it is unsurprising that, as

Vugo concedes, the opinion of the Court in Reed did

not mention Central Hudson or the commercialspeech doctrine (Pet. 14); see Reed, 135 S. Ct. at

2224–33. The sole mention of Central Hudson in

the case is in Justice Breyer’s concurrence, which

noted that the commercial-speech doctrine is an

exception to the majority’s application of strict

scrutiny. Id. at 2235 (Breyer, J., concurring).

If, despite these indications, Reed overruled

Central Hudson, this Court has passed up multiple

opportunities to say so. The Court instead has

continued to rely on Central Hudson’s commercialspeech doctrine. In Matal v. Tam, the plurality

considered whether “trademarks are commercial

speech and are thus subject to the relaxed scrutiny

outlined in” Central Hudson, or instead receive

more searching scrutiny—ultimately not deciding

the question because the trademark restrictions

could not meet even the less stringent standard.

137 S. Ct. 1744, 1763–64 (2017) (plurality op.).

Likewise, in Janus v. AFSCME, Council 31, the

Court cited Central Hudson and explained that “the

government has traditionally enjoyed greater-thanusual power to regulate speech” in the context of

commercial speech. 138 S. Ct. 2448, 2465, 2477

(2018). And in Expressions Hair Design v.

Schneiderman, the Court remanded the case for the

court of appeals to consider whether the statute at

issue was “a valid commercial speech regulation

under Central Hudson.” 137 S. Ct. 1144, 1151

(2017).

The Court has also declined a recent

invitation to hold that Reed overruled Central

Hudson. Less than three weeks before this filing,

this Court denied a petition for certiorari advancing

nearly verbatim arguments and proposing an

identical question presented. Leibundguth Storage

& Van Serv. v. Vill. of Downers Grove, — S. Ct. —,

2020 U.S. LEXIS 1492 (Mar. 2, 2020). And there,

unlike here, the question had been squarely

presented to the circuit court.

2. Vugo contends that, despite this Court’s

consistent signals that the doctrine is unchanged,

“the lower courts are split” on whether to apply

strict scrutiny to restrictions on commercial speech

(Pet. 9–10). The commercial-speech cases decided

by the courts of appeals after Reed, however,

demonstrate that those courts have continued to

apply Central Hudson just as they had done for the

35 years before Reed was decided.

The only court of appeals to explicitly address

an argument that Reed impliedly overturned

Central Hudson “rejected the notion that Reed

altered

Central

Hudson’s

longstanding

intermediate

scrutiny

framework.”

Contest

Promotions, LLC v. City & Cnty. of San Francisco,

874 F.3d 597, 601 (9th Cir. 2017); see Retail Digital

Network, LLC v. Prieto, 861 F.3d 839, 846 (9th Cir.

2017) (en banc) (holding that the court “continue[s]

to follow the Central Hudson framework”).

Meanwhile, all of the other circuits that have

decided commercial-speech cases post-Reed—the

Third, Fifth, Sixth, Eight, Eleventh, D.C., and

Federal Circuits—continued to apply Central

Hudson without addressing whether Reed

impliedly overturned it. See Greater Phila.

Chamber of Commerce v. City of Philadelphia, 949

F.3d 116, 137–38 (3d Cir. 2020); Mo. Broadcasters

Ass’n v. Schmitt, 946 F.3d 453, 460 (8th Cir. 2020);

Nicopure Labs, LLC v. FDA, 944 F.3d 267, 284

(D.C. Cir. 2019); Bevan & Assocs., LPA v. Yost, 929

F.3d 366, 377 (6th Cir. 2019); In re Brunetti, 877

F.3d 1330, 1350 (Fed. Cir. 2017); Am. Acad. of

Implant Dentistry v. Parker, 860 F.3d 300, 306 (5th

Cir. 2017); Ocheesee Creamery LLC v. Putnam, 851

F.3d 1228, 1234 (11th Cir. 2017).

Vugo’s lone counterexample comes from the

Seventh Circuit’s unsupported characterization of a

Sixth Circuit case (Pet. 11–12). The Seventh Circuit

stated, in passing, that “[o]ne circuit recently held

that

Reed

supersedes

Central

Hudson.”

Leibundguth Storage & Van Serv., Inc. v. Vill. of

Downers Grove, 939 F.3d 859, 860, (7th Cir. 2019)

cert. denied — S. Ct. —, 2020 U.S. LEXIS 1492

(Mar. 2, 2020) (citing Thomas v. Bright, 937 F.3d

721 (6th Cir. 2019)). The basis for that statement is

unclear. The Sixth Circuit in Thomas was careful to

note that, despite the fact that the challenged

statute “was intended to, and routinely does, apply

to only commercial speech,” in that case “Tennessee

applied the Act to restrict … non-commercial

speech that was not advertising nor commercial in

any way.” Thomas, 937 F.3d at 726 (quotation

marks

omitted). 3

Consistent

with

its

characterization of the dispute, the court

determined that it would confine its analysis “to

non-commercial speech and need not consider the

commercial-speech doctrine.” Id. at 729 (emphasis

added). Indeed, the court did not even cite Central

Hudson. Thus, Vugo not only identifies the

shallowest of purported splits, but even that

limited claim is mistaken. 4

3. Petitioner also asserts that Central Hudson

conflicts with Sorrell v. IMS Health Inc., 564 U.S.

552 (2011) (Pet. 14). But Sorrell, despite suggesting

that a different analysis might properly apply to

the unusual statute at issue, ultimately applied the

Contrary to Vugo’s characterization, the court did not

“decline[] to sever” the statute’s commercial applications from

noncommercial applications, but rather did not reach the

issue because “Tennessee did not raise severability here, in

either its briefing or during oral argument.” Thomas, 937

F.3d at 729.

4 The narrowness of the Sixth Circuit’s holding in Thomas is

reinforced by the fact that other Sixth Circuit panels

continued to straightforwardly apply Central Hudson after

Reed was decided. See Bevan & Associates, 929 F.3d at 377;

ECM Biofilms v. FTC, 851 F.3d 599, 615 (6th Cir. 2017); Kiser

v. Kamdar, 831 F.3d 784, 788 (6th Cir. 2016).

Central Hudson test and cast no doubt on the test’s

continued vitality in general.

The statute in Sorrell sought to discourage the

prescribing of brand-name drugs by imposing

“content- and speaker-based restrictions on the

sale, disclosure, and use of prescriber-identifying

information” by pharmaceutical manufacturers and

marketers, but not others. Sorrell, 54 U.S. at 563–

65. The Court suggested that this patent contentand viewpoint-based discrimination might warrant

“a stricter form of judicial scrutiny” than

commercial speech receives. Id. at 571. But the

Court nonetheless applied the Central Hudson test

because “the outcome [was] the same” either way.

Id. Thus, far from rejecting Central Hudson’s test

for commercial-speech regulations, the Court

confirmed that it applies—except, perhaps, to

regulations that have the discriminatory features of

the particular statute at issue in Sorrell.

Vugo’s attempt to distill a general rejection of

Central Hudson from this holding is therefore

unavailing. For that reason, as the Second Circuit

explained, “[n]o Court of Appeals has concluded

that Sorrell overturned Central Hudson” (Pet.

17a). 5

C. Petitioner’s additional objections to

Central Hudson do not merit this Court’s

review.

1. Vugo argues that this case illustrates

purported flaws in Central Hudson that the Court

should grant certiorari to remedy (Pet. 16–20).

Curiously, however, in arguing that Central

Hudson is irredeemably flawed, Vugo cites no cases

that apply the Central Hudson framework. Instead,

Vugo relies on a rhetorical sleight of hand, arguing

that the City has attempted to regulate advertising

based on a judgment that “the content of

advertising” is annoying (Pet. 16). Vugo then cites

various cases for the proposition that the

government may not base speech regulations on

whether the idea expressed is offensive or

disagreeable (id. at 16–17).

But, as the Second Circuit explained, the goal of

the in-vehicle advertising restriction is to shield

5 Indeed, every circuit to consider the question has adhered to

the Central Hudson test in light of Sorrell. See Greater Phila.

Chamber of Commerce, 949 F.3d 139–40; In re Brunetti, 877

F.3d at 1350; Retail Dig. Network LLC, 861 F.3d at 846 (en

banc); Ocheesee Creamery, 851 F.3d at 1234 n.7; Mo.

Broadcasters Ass’n v. Lacy, 846 F.3d 295, 300 n.5 (8th Cir.

2017); 1-800-411-Pain Referral Serv., LLC v. Otto, 744 F.3d

1045, 1055 (8th Cir. 2014).

passengers in FHVs from “the offensive sight and

sound of advertisements—not their content—while

they are traveling through the city by car” (Pet.

19a). The court relied on evidence “that passengers

find the fact, not the content, of in-ride

advertisements annoying” (id. 19a n.8). And this

annoyance

understandable,

given

that

passengers are a captive audience, sitting a mere

arm’s length from a device mounted on the front

seatback that they cannot fully disable.

This Court has routinely confirmed that cities

and states have a substantial interest in the

aesthetics of their locales that support regulations

governing the display of advertisements. See

Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 805 (1984)

(affirming that a city is “entitled to protect

unwilling viewers against intrusive advertising”);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

507–08 (1981) (plurality op.) (explaining that “the

appearance of the city” is a “substantial

governmental” interest); Lehman v. Shaker

Heights, 418 U.S. 298, 304 (1974) (holding that a

municipality could refuse to display political ads on

buses to “minimize . . . the risk of imposing upon a

captive audience”).

Vugo relies on entirely inapposite cases, none of

which resemble this case or implicate Central

Hudson (Pet. 16–17). For example, Snyder v.

Phelps considered the limits the First Amendment

places on state tort claims for intentional infliction

of emotional distress predicated on offensive speech

and expressive conduct. 562 U.S. 443, 452 (2011).

And in the other cases Vugo cites, the relevant

speech was regulated on the basis of the particular

subject matter or viewpoint espoused, not because

it was commercial in character. See Brown v.

Entm’t Merchs. Ass’n, 564 U.S. 786, 794 (2011)

(“California … wishes to create a wholly new

category of content-based regulation that is

permissible only for speech directed at children.”);

Erznoznik v. Jacksonville, 422 U.S. 205, 208 (1975)

(“Jacksonville’s ordinance … does not protect

citizens from all movies that might offend; rather it

singles out films containing nudity.”). Indeed, in

Carey v. Population Services, Inc., this Court

explicitly disclaimed any ruling on “the time, place,

or manner of … commercial advertising” for

contraceptives. 431 U.S. 678, 702 n.29 (1977).

Finally, in Martin v. Struthers, which predates

Central Hudson by more than 35 years, the Court

invalidated a complete ban on leafletting,

explaining that it was not a reasonable “regulation

of time and manner of distribution.” 319 U.S. 141,

147 (1943).

2. Vugo and its amici also argue that Central

Hudson should be overturned as unworkable

because courts supposedly have struggled to

distinguish

between

commercial

and

noncommercial speech (Pet. 17–18; Br. of Amicus

Curiae Pacific Legal Foundation 5–13). They

greatly overstate the point. The Central Hudson

test applies only to “speech that proposes a

commercial transaction.” Bd. of Trs. v. Fox, 492

U.S. 469, 482 (1989) (emphasis in original). In

applying this limitation, the Court has consistently

erred on the side of providing more protection for

speech that approaches the boundary line.

For that reason, many of the examples Vugo

and its amici rely on as edge cases do not propose a

commercial transaction and would fall outside of

the doctrine in any event. For example, Vugo notes

that video games “convey artistic expression,

narrative, and may even espouse political or social

views” (Pet. 18), and there is no dispute that the

expressive content within a video game is

absolutely protected by the First Amendment. See

Brown, 564 U.S. at 790. But Vugo’s next step is

faulty—it assumes that because video games are

“indisputably commercial products” all speech

within or about them must be commercial speech

(Pet. 18 (emphasis added)). That cannot be the

case, just as it cannot be the case that the content

of every book in a bookshop is commercial speech

simply because the books are for sale. The

commercial-speech doctrine applies only when the

particular speech at issue proposes a commercial

transaction, and not when the speech merely has a

commercial motivation. Fox, 492 U.S. at 482.

3. The fact that commercial and noncommercial

speech are often intertwined is likewise not a new

issue or an insurmountable problem, as Vugo and

its amici claim (Pet. 17–19; Br. of Amicus Curiae

Pacific Legal Foundation 5–13). The Court has long

limited the commercial-speech doctrine to reflect

this reality. The Court has held that commercial

speech does not retain its “commercial character

when it is inextricably intertwined with otherwise

fully protected speech.” Riley v. Nat’l Fed’n of Blind

of N.C., Inc., 487 U.S. 781, 796 (1988). Where

commercial speech is so intertwined with other

speech, courts apply the “test for fully protected

expression.” Id. Likewise, applying this Court’s

decision in Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983), the lower courts routinely

accord heightened protection to hybrid commercial

and noncommercial speech even where it does not

meet the “inextricably intertwined” test. See Dex

Media W., Inc. v. City of Seattle, 696 F.3d 952, 960–

61 (9th Cir. 2012) (collecting cases).

These doctrines resolve potentially difficult fact

patterns in the most speech-protective manner

while simultaneously preserving the essential

character of the commercial-speech doctrine,

thereby undercutting concerns raised by Vugo and

its amici about difficult hybrid-speech cases. The

petition’s generalized workability argument is thus

no sounder than its claim that this case implicates

a split in authority—or its unfounded assumption

that the case even properly raises the question that

it asks the Court to review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,