Key Points

  • Ninth Circuit holds that Seattle's ordinance regulates nonexpressive conduct, not speech, so First Amendment does not apply.
  • Alternatively, court finds any compelled speech is commercial speech subject to the lower Zauderer standard.
  • Ordinance survives vagueness challenge; 'reasonable' standard is well-established and supplemented by examples.
  • Partial dissent would find ordinance compels speech and would remand for intermediate scrutiny analysis.

The Court of Appeals for the Ninth Circuit on March 4, 2026, affirmed a district court's denial of a preliminary injunction sought by Uber Technologies Inc. and Maplebear Inc. (Instacart) against Seattle's App-Based Worker Deactivation Rights Ordinance. The panel held that the ordinance does not violate the First Amendment because it regulates nonexpressive conduct—the unwarranted deactivation of worker accounts—and any burden on speech is incidental.

The ordinance, enacted in 2023, prohibits network companies from deactivating app-based workers for reasons deemed unwarranted. It requires companies to inform workers in writing of their deactivation policy and mandates that the policy be 'reasonably related' to the company's 'safe and efficient operations.' Uber and Instacart challenged the law as compelling speech in violation of the First Amendment and as unconstitutionally vague.

Writing for the majority, Judge Clifton concluded that the ordinance's 'inevitable effect' is to regulate a business agreement, not expressive conduct. '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,' the opinion states.

The panel further held that, even assuming the ordinance regulates speech, that speech is commercial speech subject to the less stringent standard of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. Under Zauderer, the government may compel truthful disclosure in commercial speech as long as it is reasonably related to a substantial governmental interest and involves purely factual and uncontroversial information.

The majority found that the notice requirement meets the Zauderer test. 'There is no question that protecting the health and safety of [workers] is a substantial governmental interest,' the opinion states, noting that the disclosure is 'purely factual and concerns only the service provided.' The court also rejected the vagueness challenge, holding that the term 'reasonable' is a well-established standard and that the ordinance provides sufficient guidance.

Judge Bennett dissented in part. He agreed that the ordinance is not vague. He argued that the deactivation policy requirement compels speech subject to the First Amendment. 'The drafting and publication of such a policy is speech,' he wrote. While he agreed with the majority that the speech is commercial and subject to intermediate scrutiny, he concluded that the plaintiffs raised serious questions on the merits and would have remanded for the district court to reexamine the preliminary injunction factors.

The court emphasized that the ordinance does not require companies to state their agreement with the policies. '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,' the majority noted.

For practitioners, the case clarifies that worker-protection laws imposing disclosure obligations on gig platforms are unlikely to trigger strict scrutiny. The application of Zauderer to such disclosures gives cities broad latitude to require companies to communicate their internal policies to workers.