In an opinion filed January 23, Judge Daniels denied a motion (covered here) in which DoorDash and Uber sought to preliminarily enjoin, as improperly “compelled speech,” a new New York City 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%.
DoorDash and Uber used to customarily include a tip option before the order was placed, but, in December 2023, the City passed a “Minimum Pay Law” for delivery workers, and so they moved the tip prompt to a screen that would appear after checkout—and which resulted in a significant decline in tips. The new law was passed in response to the tip decline.
Judge Daniels concluded that the DoorDash and Uber were unlikely to succeed on the merits because the speech at issue was commercial speech—speech that is “linked inextricably” to a commercial transaction—and so subject to less First Amendment protection. Judge Daniels rejected the plaintiffs’ effort to characterize the law as forcing them to “convey the City’s preferred message regarding tipping,” and found that the speech at issue merely reflected their “economic interests” in a commercial transaction:
Here, the activity regulated by the Tipping Laws appears solely within the checkout flow of a paid food delivery service and is inseparable from completing the transaction. Plaintiffs’ argument that providing the option to tip at checkout “does not reflect Plaintiffs’ economic motivation[s]” for the communication is unavailing. Plaintiffs concede that their economic interests were part of the reasoning behind removing the option to tip at checkout following implementation of the [Minimum Pay Law]. It follows, therefore, that the Tipping Laws which require the opportunity to tip to be restored to consumers—the audience in question—likely regulate “expression related solely to the economic interests of the speaker and its audience” and implicate commercial speech. Compasscare v. Hochul, 125 F.4th 49, 64 (2d Cir. 2025).
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The tipping prompt . . . does not involve the “propagation of views” or “advocacy of causes,” as Plaintiffs argue.
Judge Daniels later denied a motion to stay his ruling pending appeal, and the Second Circuit denied an emergency stay motion, referring the question of a stay pending appeal to a regular motions panel.