Earlier this month, DoorDash and Uber Eats filed a motion to preliminarily enjoin New York City’s new law requiring that online food ordering services provide an option to tip before the order is placed and to include an option for a tip of at least 10%. According to the plaintiffs, the law compels speech that they do not wish to communicate, in violation of the First Amendment:
The Tipping Law forces platforms to advocate—and implicitly endorse—the City’s preferred message about whether, when, and how consumers should tip delivery workers: namely, that customers should tip at least 10% upfront, before an order is placed, regardless of the quality of the delivery service they ultimately receive. That is not the message Plaintiffs choose to convey in New York City, where consumers are already charged higher fees to support guaranteed minimum pay. Nor is it an uncontroversial view; 90% of Americans believe “tipping culture has spiraled out of control,” and consumers are especially frustrated with suggested tip amounts and requests to tip before receiving service . . . .
The First Amendment prohibits such blatant attempts to hijack Plaintiffs’ private speech for the government’s preferred purposes. “Laws that compel speakers to utter or distribute speech bearing a particular message” are subject to “the most exacting scrutiny.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994). The Tipping Law does just that—it compels Plaintiffs to speak the City’s preferred message about the discretionary practice of tipping delivery workers. As such, it is subject to strict constitutional scrutiny and plainly fails under that standard.
The case is assigned to Judge Daniels. A preliminary injunction hearing has not yet been scheduled.