Uber’s First Amendment Argument

Uber, the company that allows consumers to procure rides using a cell phone app, has invoked the First Amendment in an attempt to overturn court orders regulating its communications with drivers.  My tentative view is that Uber’s First Amendment interests are minimal and should not defeat the court orders.  Uber may have a better claim that the district court’s rulings contravene the Federal Arbitration Act, which places arbitration on equal footing with judicial proceedings, because the court is discouraging arbitration in favor of litigation.  However, the Ninth Circuit should rule against Uber on its First Amendment claim.  Uber’s case is distinguishable from cases involving restrictions on communications between lawyers and their own prospective clients.  The case is also distinguishable from regulations compelling commercial disclosures to consumers on controversial topics.


Plaintiffs in three class actions have alleged that Uber has deprived drivers of gratuities and expense reimbursements.  They also claim Uber violated consumer reporting laws by obtaining credit reports on its drivers.  The major issue in this class action, if the Ninth Circuit allows the litigation to proceed, will be whether Uber drivers are employees entitled to certain benefits or are simply independent contractors using Uber’s technology to connect to passengers.  But in its latest appeal to the Ninth Circuit, Uber claims that Judge Chen, in the Northern District of California, violated Uber’s right to free speech when issuing orders making it easier for drivers to join a class action against Uber.  Judge Chen issued an injunction that, among other things, forced Uber to send drivers an easy-to-use hyperlink that allows drivers to opt out of the mandatory arbitration clause in Uber’s contracts.  Uber is also required to explain the current lawsuit and provide an easy way to opt out of its arbitration clause to any prospective driver who signs up for the Uber app, even though these drivers may never become part of a class action against Uber.

Uber’s First Amendment claim is situated within a vexing debate about how much protection to afford commercial speech.  As a threshold matter, corporations, as organizations of individuals, can assert some constitutional rights.   First Amendment protections attach to organizations engaged in political speech, worthy of the highest First Amendment protections.  The question then becomes what level of protection to give speech that is not political but purely commercial, related to or proposing a commercial transaction in the economic marketplace.

Courts are currently struggling to determine the level of constitutional scrutiny commercial speech should receive.  Uber relies on a Supreme Court case, Gulf Oil v. Bernard, that is distinguishable because it involves a restraint on lawyers attempting to contact their own prospective clients to inform them of their rights.  The Court in Gulf Oil deemed unconstitutional a district court’s orders banning plaintiffs’ counsel from trying to undermine a settlement, reached between Gulf Oil and its employees, by contacting prospective class members and urging them to join a separate antidiscrimination lawsuit.  The Supreme Court did not decide what standards are mandated by the First Amendment when assessing the broad discretion that district courts have in controlling communications during litigation.  However, the Court noted that injunctions banning communications in litigation involve “serious restraints on expression.”

Gulf Oil is distinguishable from Uber’s case because it involved plaintiffs’ lawyers contacting their own potential clients to inform them about a pending lawsuit.  The Court held that the First Amendment protected the right to receive information about litigation that could impact employees’ interests.  In the instant case, Judge Chen’s order, although potentially an abuse of discretion under the rules of class action litigation because of its broad sweep, applies to Uber’s communication with potential adversaries in litigation.  Judge Chen is trying to avoid having Uber confuse drivers about their legal rights by sending them opaque arbitration agreements while a class action lawsuit is pending.  This is a far cry from violating Gulf Oil’s rationale that parties in litigation deserve to be informed of their legal rights.

That said, Judge Chen did not make lengthy factual findings concerning the necessity of his ruling.  Uber is being forced to send notices about the lawsuit and revised arbitration clauses to new drivers, who aren’t involved in the current lawsuit and thus have less reason to be confused about their rights.  Gulf Oil requires district courts to make factual findings that their orders do not unduly burden speech.  Thus, the application of Gulf Oil, and Uber’s First Amendment claim, turns upon whether forcing Uber to send contractual agreements to millions of drivers and potential drivers, alerting these drivers to the class actions lawsuits, involves a First Amendment interest.

Deciding that question is hard because a reasonable argument can be made that commercial speech deserves little First Amendment protection, or deserves protection only when consumers’ interests in receiving information are at stake.  This argument relies on the idea that commercial speech does not implicate the speakers’ autonomy interests in expression (because the expression is largely economic) or serve First Amendment purposes like facilitating democratic self-governance or the search for truth.   On the other hand, a reasonable argument can be made that there isn’t a principled reason for distinguishing commercial speech from other types of speech.  On this account, giving commercial speech less protection is based on a moral judgment about the worthiness of the speech, and this type of viewpoint discrimination is the worst type of First Amendment evil.

I disagree with scholars and judges who believe that commercial speech shouldn’t be defined as speech for the purposes of First Amendment protection.  But I also disagree that commercial speech should receive the rigorous constitutional scrutiny afforded to communication that facilitates public discourse or reflects of an individual’s autonomy interests in self-expression.  The intermediate scrutiny often applied to commercial speech, which permits speech regulations if the government can demonstrate that its speech restrictions are sufficiently tailored to alleviate an important harm, makes sense.

Take, for example, a fairly recent District of Columbia Circuit case invalidating a regulation compelling businesses to disclose on their websites that the gold they use is not mined in a conflict-free area.  The D.C. Circuit held this regulation unconstitutional because there was no evidence that this forced disclosure would ameliorate the humanitarian crisis in the Democratic Republic of Congo, and the compelled disclosure forced companies to use a controversial term (“conflict free”) to skew public debate.

Although I cannot fully address the issue now (stay tuned!), applying this type of intermediate constitutional scrutiny seems sensible, especially for compelled speech targeting the general public.  Judge Chen’s rulings, however, involve the administration of arbitration agreements of no import to general public debate.  Judge Chen’s purpose was to allow Uber drivers to have more information about Uber’s class action lawsuit.  While potentially unfair to Uber and potentially an improper assault on arbitration clauses generally, Judge Chen’s orders do not seem to violate the First Amendment.

5 thoughts on “Uber’s First Amendment Argument”

  1. One way to look at why commercial speech gets lower protection is looking at interests, but another way is looking at competency. We think courts can’t adjudicate truth in terms of “Judaism good” or “Democrats bad” but they can (see Zauderer) in the context of uncontroversial, “factual” disclosures like country-of-origin labelling and also in terms of required class notice, but I guess my small point is that identifying class members requires assessment of legal merits, which is a type of commandeering of professional (or something like professional) speech.

    I think a classical liberal could bring consent into it, and say that if Uber is settling (and maybe if there is res judicata on some arbitration / contract issue), conditions like this are okay, but if it’s a pure notice requirement where Uber is told “notify people affected by this lawsuit against you”, I think that does raise certain 1A questions.


  2. That’s a nice point. I agree wholeheartedly that we need to look to courts’ competencies, not just interests, when determining if free speech rights are endangered. I think (and my conclusions about all of this are pretty tentative), that using current and prospective drivers as potential class members seems within the court’s competence and doesn’t really implicate questions of truth. You make a good argument for why Gulf Oil should apply to defense counsel as well as plaintiff’s counsel in some cases – esp if there is an ongoing commercial relationship – but I still think even applying some sort of intermediate scrutiny, the orders here should survive. Identifying truth versus falsity seems more difficult in a non-litigation context than in a litigation context, where the district court has broad discretion under R.23(d) to make sure parties have adequate notice. I think you make a good point, but I’m not sure it should ultimately change the analysis in this case. I think part of my issue is that it seems like what Judge Chen did was to really overstep certain bounds, but can the 1st A be used as a general policing of abuse of authority? (Perhaps yes, as the 1st A has expanded as the government has also expanded its powers, allowing for some sort of equilibrium, but perhaps not.)


      1. Yep, I link to that article in the piece. I don’t buy all of it, and I’m definitely more of a formalist in terms of reading the 1st A, but it makes some really nice points. One pet peeve of mine is the statement that our 1st A rights are relatively new, but that’s mostly because the 1st A wasn’t incorporated against the states for a long time (and neither was any other amendment in the Bill of Rights, but now incorporation is not really controversial).


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