Vugo, Inc. v. City of New York , 931 F.3d 42 ( 2019 )


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  • 18-807
    Vugo, Inc. v. City of New York
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    _______________
    August Term, 2018
    (Argued: February 28, 2019            Decided: July 16, 2019)
    Docket No. 18‐807
    _______________
    VUGO, INC.,
    Plaintiff‐Appellee,
    —v.—
    CITY OF NEW YORK,
    Defendant‐Appellant.
    _______________
    B e f o r e:
    KATZMANN, Chief Judge, LIVINGSTON and DRONEY, Circuit Judges.
    _______________
    Defendant‐Appellant the City of New York (the “City”) appeals from a
    February 22, 2018 opinion and order entered in the United States District Court
    1
    for the Southern District of New York (Abrams, J.) denying the City’s motion for
    summary judgment and granting Plaintiff‐Appellee Vugo, Inc.’s motion for
    summary judgment. The district court concluded that the City’s rules banning
    advertisements in for‐hire passenger vehicles, such as Ubers and Lyfts, violate
    the First Amendment, primarily because the City permits certain advertising in
    taxicabs. On appeal, the City argues that its ban survives First Amendment
    scrutiny, notwithstanding the limited taxicab exception, because it directly
    advances the government’s interest in improving the passenger experience and is
    no more extensive than necessary to advance that interest. We agree.
    Accordingly, we REVERSE.
    _______________
    RONALD J. RICCIO (Steven J. Shanker, Eliott Berman, on the brief),
    McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York,
    NY, for Plaintiff‐Appellee.
    KATHY CHANG PARK (Richard Dearing, Claude S. Platton, on the
    brief), for Zachary W. Carter, Corporation Counsel of the City
    of New York, New York, NY, for Defendant‐Appellant.
    _______________
    KATZMANN, Chief Judge:
    This appeal concerns a First Amendment challenge to nearly twenty‐year‐
    old New York City rules that ban advertisements in for‐hire vehicles (“FHVs”)
    absent authorization from the Taxi and Limousine Commission (the “TLC” or
    the “City”). See 35 R.C.N.Y. §§ 59A‐29(e)(1), 59B‐29(e)(1). A similar rule has
    applied to yellow and green taxicabs (collectively, “taxicabs,” “taxis,” or “cabs”)
    for over two decades. See 35 R.C.N.Y. § 58‐32(f). The TLC originally enacted these
    2
    bans because, as the record reflects, passengers find in‐ride advertisements—
    particularly, as relevant here, video advertisements—extremely annoying.
    However, in 2005, the TLC permitted a limited category of advertisements in
    taxis: those displayed on the screens of new equipment that the TLC required
    taxis to install (“Taxi TV”). This new equipment allows taxi riders, inter alia, to
    track the progress of their metered fare and pay by credit card. The TLC
    authorized advertising on Taxi TV to offset the cost to the taxi owners of
    installing the newly mandated equipment.
    Plaintiff‐Appellee Vugo, Inc. (“Vugo”) has challenged the rules banning
    advertisements in FHVs because it wants to sell an advertising software platform
    it developed for certain FHVs, including Ubers and Lyfts. Vugo primarily argues
    that the ban is impermissibly underinclusive under the First Amendment
    because the City’s interest in enacting the ban bears no relationship to the City’s
    justification for exempting Taxi TV advertising.
    The parties agree that the prohibition on advertising in FHVs is a content‐
    based restriction on commercial speech and, as such, is subject to intermediate
    scrutiny. See Central Hudson Gas & Elec. Corp. v. Public Servs. Comm’n, 
    447 U.S. 557
    (1980). Under Central Hudson, courts ask whether (1) the expression is protected
    3
    by the First Amendment; (2) the asserted government interest is substantial; (3)
    the regulation directly advances the government interest asserted; and (4) the
    regulation is no more extensive than necessary to serve that interest. 
    Id. at 566
    .
    The district court concluded that the ban fails the third prong of this test because
    the City’s justification for the Taxi TV exception (compensating taxi owners for
    the cost of new equipment) “bears no relationship whatsoever” to the City’s
    asserted interest (protecting passengers from annoying advertisements). Special
    App. at 16. Considering the fourth prong in tandem with the third, the district
    court also concluded that the ban was more extensive than necessary to advance
    the City’s interest.
    We respectfully disagree. First, we think there is a sufficient nexus here
    between the ban and its exception because both advance the City’s interest in
    improving the overall passenger experience. Second, the ban would be
    constitutional even if there were not such a relationship. The absence of a
    relationship between a government’s interest in a ban and its basis for any
    exceptions may render a ban unconstitutionally underinclusive. Most notably, it
    may demonstrate that the ban was motivated by bias or remains incapable of
    achieving its stated aims. Here, however, on the uncontroverted record, the
    4
    exception neither reflects discriminatory intent nor renders the ban ineffective at
    improving the in‐ride experience for millions of New York City residents and
    visitors. The Taxi TV exception reflects the City’s reasonable decision that the
    costs of permitting advertisements in taxicabs were outweighed by the benefits
    of compensating taxicab owners for the expense of installing new equipment that
    facilitated credit card payment and improved ride data collection. Vugo
    identifies no grounds for us to upset this policy judgment. See Metromedia, Inc. v.
    City of San Diego, 
    453 U.S. 490
    , 512 (1981) (plurality opinion). Finally, we
    conclude that the City’s ban is not substantially more restrictive than necessary
    to achieve the City’s aims under the final prong of Central Hudson.
    Accordingly, we REVERSE the judgment of the district court and direct
    the entry of judgment in favor of the City.
    BACKGROUND
    I.    Factual History
    The material facts are undisputed. “[T]ransporting passengers for hire by
    motor vehicle in the city of New York is affected with a public interest, is a vital
    and integral part of the transportation system of the city, and must therefore be
    supervised, regulated and controlled by the city.” N.Y.C. Admin. Code § 19‐501
    5
    (legislative findings). The New York City Council has tasked the TLC with
    regulating this critical component of the City’s transportation system, which
    includes both taxis and FHVs. N.Y.C. Charter §§ 2300, 2303(a).
    The term “taxicab” refers to yellow cabs and green cabs, which are the
    only vehicles the TLC allows to pick up passengers by street hail in New York
    City. See N.Y.C. Admin. Code § 19‐504(1).1 FHVs, by contrast, are vehicles “other
    than a taxicab” that “carr[y] passengers for hire in the city.” N.Y.C. Admin. Code
    § 19‐502(g). FHV rides are prearranged through businesses licensed by the TLC,
    such as limousine companies and, more common today, companies like Uber
    and Lyft. See N.Y.C. Admin. Code § 19‐516(a) (“For‐hire vehicles . . . may accept
    passengers only on the basis of telephone contract or prearrangement.”). FHVs
    comprise a growing share of the passenger vehicle market. As of August 2016,
    the TLC regulated 94,000 vehicles. More than seventy‐five percent of these were
    1 Green cabs are formally classified as for‐hire vehicles, but this opinion,
    following the lead of the district court and the parties, defines the term “taxicab”
    as including green cabs because green cabs are allowed to display
    advertisements on Taxi TV.
    6
    FHVs. Around that same time, riders took approximately 370,000 daily trips in
    yellow taxis and 213,000 daily trips in Uber and Lyft vehicles.
    One of the TLC’s statutory mandates is to “promot[e] and protect[] . . .
    public comfort and convenience.” N.Y.C. Charter § 2300. Consistent with this
    mandate, the TLC sets comprehensive standards for driver licensing, vehicle
    equipment, and vehicle markings in both taxis and FHVs. For example, the TLC
    can deny an applicant a license if the applicant has assaulted a passenger or
    unlawfully denied a passenger service in the past two years, 35 R.C.N.Y. § 58‐08
    (d); the TLC mandates that taxis be equipped with a partition, 35 R.C.NY. § 58‐
    35(a); and the TLC requires taxi owners to “apply to the exterior of the Taxicab
    markings approved by the Commission,” such as an emblem identifying the
    owner of the vehicle, while prohibiting the application of other emblems and
    markings on the exterior of taxicabs. See 35 R.C.N.Y. § 58‐32(a). Similar
    regulations apply to FHVs. See 58 R.C.N.Y. § 59B‐09(b)(5); 58 R.C.N.Y. § 59A‐
    32(a); 58 R.C.N.Y. § 59A‐29.
    Also in furtherance of this mandate to promote passenger comfort, the
    TLC—for more than two decades—has prohibited any advertising inside
    taxicabs except as specifically authorized by the Commission. See App. at 288,
    7
    303‐04 (original prohibition, March 1, 1996) (“An owner shall not display inside a
    taxicab any advertising or other notice not specifically authorized by these
    [taxicab owner] rules or the Commission’s Marking Specifications for Taxicabs
    unless approved by the Commission.”); 35 R.C.N.Y. § 58‐32(f) (current
    prohibition) (“An Owner must not display inside a Taxicab any advertising or
    other notice not specifically authorized by these rules or the Commission’s
    Marking Specifications for Taxicabs unless approved by the Commission.”).
    The TLC codified similar rules for FHVs in 1999, which are at issue in this
    case. 35 R.C.N.Y. §§ 59A‐29(e)(1), 59B‐29(e)(1).2 Section 59A‐29(e) provides that
    an “[o]wner must not display any advertising on the exterior or the interior of a
    For‐Hire Vehicle unless the advertising has been authorized by the
    Commission.” Section 59B‐29(e)(1), which applies to owners of for‐hire base
    stations—central facilities that manage, organize, and/or dispatch FHVs—
    contains essentially the same restriction. See 35 R.C.N.Y. § 59B‐29(e)(1) (“A
    Vehicle must not display advertising on the outside or the inside unless the
    2 Sections 59A‐29(e) and 59B‐29(e) have been renumbered since their
    original passage. There have also been minor word revisions. None of those
    changes substantively altered the rule adopted by the TLC on August 5, 1999.
    8
    Commission has authorized the advertising and has given the Vehicle Owner a
    permit specifying that the advertising complies with the Administrative Code.”).
    Violation of either section subjects the violator to a $50 fine. See 35 R.C.N.Y. §§
    59A‐29(3), 59B‐29(e)(1). The City’s position throughout this litigation has been
    that “[t]he Challenged Rules govern advertising on posters, stickers, or any other
    format in which one could promote a product or service.” City’s Reply Mem. of
    Law in Support of Cross‐Motion for Summary Judgment at 10, ECF No. 53, Vugo,
    Inc. v. City of New York, No. 1:15‐cv‐8253 (S.D.N.Y. Sept. 30, 2016).
    The City’s prohibition on in‐ride advertising has only one exception:
    advertisements on Taxi TV. TLC authorized this limited form of interior
    advertising in taxis in May 2005 to allow taxi owners to offset the cost of a new
    technology system that TLC had recently required vehicle owners to purchase
    and install. See App. at 95 (deposition testimony of Ryan Wanttaja, Deputy
    General Counsel for the TLC) (the TLC permits interior advertising in yellow and
    green taxis “principally because of the—or solely because they offset the cost of
    these mandatory pieces of equipment that provide the additional functionality
    that the TLC requires”).
    9
    This new hardware and software system, referred to as the Technology
    Passenger Enhancements Program (“TPEP”) for yellow taxis and the Livery
    Passenger Enhancements Program (“LPEP”) for green taxis, advances the TLC’s
    mandate to innovate and experiment with new designs and modes of service.
    N.Y.C. Charter § 2303(b)(9). TPEP and LPEP benefit riders, drivers, and the TLC.
    For example, the screen in these systems, known as the “passenger information
    monitor,” shows passengers their fare as it accumulates, allows passengers to
    track their route, and accepts credit card payments. In a recent TLC survey,
    almost sixty percent of passengers chose the ability to pay by credit or debit card
    as the feature they liked most about taxis. The systems also assist with lost‐
    property inquiries and enable the TLC to inform drivers about areas of high
    demand and to convey emergency notifications via text message. In addition, the
    systems produce detailed records—previously maintained by hand—of each taxi
    trip, including fares and pick‐up and drop‐off locations. See 35 R.C.N.Y. § 58‐22.
    These detailed records allow for comprehensive statistical analysis that informs
    TLC policy and was not feasible under the prior, paper reporting system.
    The TLC required vehicle owners to pay for the TPEP and LPEP systems.
    Because the TLC did not expect that the “significant” cost of installing these
    10
    systems would be offset by any increase in business, App. at 297, the TLC
    authorized advertising on the passenger information monitors as a means of
    reducing the expense for vehicle owners.3 See 35 R.C.N.Y. § 58‐32(f) (exempting
    “[a]dvertising on the Technology System,” subject to certain restrictions, from
    the general ban on interior advertising); App. at 297 (“TLC authorized
    advertising in [taxis] simply as a means by which owners could offset the new
    cost.”). The system allows limited advertising, known as “Taxi TV.” 35 R.C.N.Y.
    § 58‐32(f) (exempting “[a]dvertising on the Technology System,” subject to
    certain restrictions, from the general ban on interior advertising).
    In response to passenger dissatisfaction with Taxi TV, the TLC has sought
    to again entirely eliminate advertising from taxicabs. Approximately one‐third of
    TLC survey respondents named Taxi TV as the one thing they disliked most
    about taxis. The commissioner of the TLC expressed the need to be “responsive”
    to passengers who found Taxi TV to be “somewhat of an invasion.” App. at 453.
    3Vehicle owners do not directly receive the advertising revenue. Instead,
    according to the TLC, TPEP and LPEP providers sell the systems at a discount—
    the TLC estimates for forty to sixty percent less—when the providers can profit
    from advertising displayed on the screens.
    11
    The TLC recently completed a pilot program to test new technologies that could
    maintain the functionality of TPEP and LPEP without Taxi TV. The executive
    director of the taxi drivers’ union reported that the drivers responded to the
    proposed change with “utter elation.” App. at 458. After the pilot program
    concluded in June 2018, TLC eliminated its requirement that taxicab technology
    systems contain monitors to display advertisements. See 35 R.C.N.Y. § 66‐24(c).
    Instead, taxi owners must install any technology system that provides certain
    core functions, including data collection, credit card payment, and
    communication between drivers and TLC, but that system need not have a
    monitor. See id.; 35 R.C.N.Y. § 58‐40(a).
    FHVs do not have technology akin to the TPEP and LPEP systems. Indeed,
    such technology is not necessary in FHVs. FHV fares are usually set in advance
    (and not subject to the metered rates set for street‐hail vehicles), so passengers do
    not need real‐time information about their fare. In addition, FHV passengers less
    frequently need a device that accepts in‐car payment since payment is usually
    made in advance via a credit card on file. Finally, the TLC does not need to
    communicate fare opportunities directly to FHV drivers because FHV drivers
    can only accept passengers that their companies assign to them.
    12
    Vugo, a Minnesota‐based technology company, has developed a system
    for displaying video advertisements to FHV passengers. Under Vugo’s business
    model, the vehicle driver purchases an internet‐connected tablet and downloads
    the Vugo app. The driver mounts the tablet on the back of the front seat’s
    headrest so that it faces the passenger seats at eye level. When the passenger’s
    trip begins, the tablet automatically plays advertisements, mostly in video
    format. Passengers cannot turn off or mute the advertisements (unlike Taxi TV,
    which can be muted or turned off). Passengers can, however, use on‐screen
    controls to reduce the volume to a “near‐mute” level. App. at 180‐81. Advertisers
    pay Vugo, and Vugo splits this ad revenue with drivers. When Vugo contacted
    the TLC about its plans to enter the New York City market, the TLC confirmed
    that it did not allow advertising in FHVs.
    II.   Procedural History
    Vugo sued the City on October 20, 2015, alleging that the TLC’s
    prohibition on interior advertising in FHVs violates the First Amendment and
    requesting that the court declare the rules unconstitutional and enjoin their
    enforcement. Both parties moved for summary judgment. The district court
    13
    (Abrams, J.) granted summary judgment for Vugo.4 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 are no less
    annoying than advertisements in FHVs would be. Moreover, the district court
    held, the City could have furthered its stated interest by less restrictive means,
    such as requiring advertising displays in FHVs to contain an on‐off switch or
    mute button.
    DISCUSSION
    I.    Standard of Review
    We review a decision on cross‐motions for summary judgment de novo,
    examining each motion “on its own merits.” Chandok v. Klessig, 
    632 F.3d 803
    , 812
    (2d Cir. 2011). Summary judgment is proper only when “the movant shows that
    there is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must “constru[e] the
    evidence in the light most favorable to the non‐moving party and draw[] all
    4   The district court’s judgment has been stayed pending this appeal.
    14
    inferences in its favor.” Costello v. City of New Burlington, 
    632 F.3d 41
    , 45 (2d Cir.
    2011); see also Morales v. Quintel Entm’t, Inc., 
    249 F.3d 115
    , 121 (2d Cir. 2001)
    (when considering cross‐motions for summary judgment, “all reasonable
    inferences must be drawn against the party whose motion is under
    consideration”). It is the government’s burden to justify its rules as consistent
    with the First Amendment. See Sorrell v. IMS Health Inc., 
    564 U.S. 552
    , 571‐72
    (2011); United States v. Caronia, 
    703 F.3d 149
    , 164 (2d Cir. 2012).
    II.   The City’s Prohibition on In‐Ride Advertising Does Not Violate the First
    Amendment
    The challenged rules affect only commercial advertising.5 “The First
    Amendment, as applied to the States through the Fourteenth Amendment,
    protects commercial speech from unwarranted governmental regulation.” Central
    Hudson, 
    447 U.S. at 561
    . Both parties assert that Central Hudson’s intermediate
    5  Although 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—the parties and the district court proceeded on
    the assumption that the ban applies only to commercial speech. Since the parties
    agree on appeal that the ban applies only to commercial advertising, we assume
    that is the case for purposes of this decision.
    15
    scrutiny test applies because the rules regulate commercial speech. We agree,
    and further conclude that the prohibition survives this test.
    A.     The Proper Level of Scrutiny
    We must first briefly address what “intermediate scrutiny” under Central
    Hudson requires after Sorrell. Although Vugo expressly concedes that Central
    Hudson’s intermediate scrutiny test applies, Vugo also contends that content‐
    based restrictions on truthful commercial advertising are “presumptively
    invalid” after Sorrell, Appellee Br. at 18, implying that something more akin to
    strict scrutiny applies.6 We hold that the Central Hudson test still applies to
    commercial speech restrictions.
    6  The City does not dispute that the ban, construed as applying only to
    commercial advertising, is content‐based. We see no reason to conclude
    otherwise. “Government regulation of speech is content‐based if a law applies to
    particular speech because of the topic discussed or the idea or message
    expressed.” Reed v. Town of Gilbert, 
    135 S. Ct. 2218
    , 2227 (2015). “Some facial
    distinctions based on a message are obvious, defining regulated speech by
    particular subject matter, and others are more subtle, defining regulated speech
    by its function or purpose.” 
    Id.
     That said, regulations that apply generally to
    “advertising” (without regard for whether the advertisements are commercial)
    may not necessarily be content‐based. See Lone Star Sec. & Video, Inc. v. City of Los
    Angeles, 
    827 F.3d 1192
    , 1198‐1200 (9th Cir. 2016) (holding that city ordinances
    regulating mobile billboard advertising displays were not content‐based because
    “the word ‘advertising’ refers to the activity of displaying a message to the
    16
    The Supreme Court has held that “commercial speech enjoys a limited
    measure of protection, commensurate with its subordinate position in the scale of
    First Amendment values, and is subject to modes of regulation that might be
    impermissible in the realm of noncommercial expression.” Bd. of Trustees of State
    Univ. of New York v. Fox, 
    492 U.S. 469
    , 477 (1989) (internal alterations, citations,
    and quotation marks omitted). More recently, in Sorrell, the Court stated that
    “heightened judicial scrutiny” applied to a Vermont law regulating commercial
    speech because the law “impose[d] burdens that [we]re based on the content of
    speech and that [we]re aimed at a particular viewpoint.” 
    564 U.S. at 565
    .
    However, the Court did not elaborate on what “heightened scrutiny” for content‐
    based restrictions on commercial speech would entail or whether such scrutiny
    should apply to all commercial speech restrictions. Instead, the Court applied the
    “special commercial speech inquiry,” i.e. the Central Hudson test, explaining that
    public, not to any particular content that may be displayed,” and “[t]here ha[d]
    been no suggestion that the ordinances apply differently to . . . political
    endorsements than to . . . commercial promotional campaigns.” (emphasis
    added)). We need not resolve that broader issue here because the City has
    stipulated that the ban applies only to commercial advertising and therefore is
    content‐based.
    17
    the outcome was the same whether that standard or “a stricter form of judicial
    scrutiny [was] applied.” 
    Id. at 571
    . And the Supreme Court subsequently has
    suggested that commercial speech restrictions remain “subject to the relaxed
    scrutiny outlined in Central Hudson.” Matal v. Tam, 
    137 S. Ct. 1744
    , 1763‐64 (2017).
    Following Sorrell, this Court has continued to apply Central Hudson’s
    intermediate scrutiny test to commercial speech restrictions. See Centro de la
    Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 
    868 F.3d 104
    , 112‐13 (2d
    Cir. 2017); see also Poughkeepsie Supermarket Corp. v. Dutchess Cty., N.Y., 648 F.
    App’x 156, 157 (2d Cir. 2016) (summary order) (“Restrictions on commercial
    speech are subject to intermediate scrutiny under Central Hudson.”). Other
    Circuits have similarly concluded that the Central Hudson intermediate scrutiny
    test for commercial speech survives Sorrell. See, e.g., Retail Digital Network, LLC v.
    Prieto, 
    861 F.3d 839
    , 842 (9th Cir. 2017) (en banc) (“Sorrell did not modify the
    Central Hudson standard.”); 1‐800‐411‐Pain Referral Servs., LLC v. Otto, 
    744 F.3d 1045
    , 1055 (8th Cir. 2014) (the “upshot” of Sorrell is that “when a court
    determines commercial speech restrictions are content‐ or speaker‐based, it
    should then assess their constitutionality under Central Hudson”); Missouri
    Broadcasters Ass’n v. Lacy, 
    846 F.3d 295
    , 300 n.5 (8th Cir. 2017) (reaffirming that
    18
    content‐ and speaker‐based commercial speech restrictions are evaluated under
    Central Hudson); In re Brunetti, 
    877 F.3d 1330
    , 1350 (Fed. Cir. 2017) (“[P]urely
    commercial speech [is] reviewed according to the intermediate scrutiny
    framework established in Central Hudson.”); Flying Dog Brewery, LLLP v. Michigan
    Liquor Control Comm’n, 597 F. App’x 342, 365 (6th Cir. 2015) (“[A]lthough Sorrell
    stated that ‘heightened judicial scrutiny’ applied, it reaffirmed the use of the
    Central Hudson test.”). Other Circuits have avoided the question, noting that the
    Supreme Court did not resolve the issue in Sorrell. See Educational Media Co. at Va.
    Tech, Inc. v. Inlsey, 
    731 F.3d 291
    , 298 n.4 (4th Cir. 2013) (“To be sure, the question
    of whether Sorrell’s ‘heightened scrutiny’ is, in fact, strict scrutiny remains
    unanswered.”); Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Prof’l Eng’rs
    & Surveyors, 
    916 F.3d 483
    , 493 n.18 (5th Cir. 2019) (“We do not reach the issue of
    whether Sorrell . . . altered the commercial speech analysis.”) ; Ocheesee Creamery
    LLC v. Putnam, 
    851 F.3d 1228
    , 1235 n.7 (11th Cir. 2017) (“We need not wade into
    these troubled waters . . . because the State cannot survive Central Hudson
    scrutiny.”). No Court of Appeals has concluded that Sorrell overturned Central
    Hudson.
    19
    We agree with our sister circuits that have held that Sorrell leaves the
    Central Hudson regime in place, and accordingly we assess the constitutionality of
    the City’s ban under the Central Hudson standard.7
    7  In addition, even if strict scrutiny applied to some commercial speech
    restrictions after Sorrell, we doubt it would apply to this one. The statute in
    Sorrell was content‐ and speaker‐based in that it targeted a single category of
    speech by a single category of speaker: marketing carried out by pharmaceutical
    manufacturers. Sorrell, 
    564 U.S. at
    563‐64. The Supreme Court had no doubt that
    the statute “impose[d] an aimed, content‐based burden” on particular speakers.
    
    Id. at 564
    ; see 
    id. at 565
     (“Formal legislative findings accompanying [the statute]
    confirm that the law’s express purpose and practical effect are to diminish the
    effectiveness of marketing by manufacturers of brand‐name drugs.”).
    Here, by contrast, the City’s ban covers the full range of commercial
    advertising. There is no suggestion that the City is trying to “quiet[]” truthful
    speech with a particular viewpoint that it “fear[s] . . . might persuade.” 
    Id. at 576
    .
    Vugo does not contend that the advertising displayed on its software platform
    would differ in content from the advertisements displayed on Taxi TV—nor is
    there any indication in the record that that is the case. Thus, to the extent strict
    scrutiny might apply to some commercial speech restrictions out of concern that
    the government is seeking to “keep[] would‐be recipients of the speech in the
    dark,” 44 Liquormart, Inc. v. Rhode Island, 
    517 U.S. 484
    , 523 (1996) (Thomas, J.,
    concurring), or otherwise prevent the public from receiving certain truthful
    information, that concern is not present here. See also 
    id. at 503
     (Stevens, J.,
    plurality opinion) (joined by Kennedy, J. and Ginsburg, J.) (“The First
    Amendment directs us to be especially skeptical of regulations that seek to keep
    people in the dark for what the government perceives to be their own good.”).
    20
    B.     The Prohibition Survives Scrutiny Under Central Hudson
    Under Central Hudson, we must determine whether: (1) the speech
    restriction concerns lawful activity; (2) the City’s asserted interest is substantial;
    (3) the prohibition “directly advances” that interest; and (4) the prohibition is no
    more extensive than necessary to serve that interest. 
    447 U.S. at 566
    ; see also
    Centro de la Comunidad Hispana, 868 F.3d at 113. The parties agree that the first
    prong is satisfied. Accordingly, below we consider only the remaining three
    prongs.
    1.     Prong Two: The City’s Asserted Interest
    The district court held that the City’s asserted interest—to protect
    passengers from the annoying sight and sound of in‐ride advertisements—is
    substantial. We agree.
    Vugo’s argument to the contrary mistakes the relevant inquiry. Vugo
    argues that the City’s ban was “designed” to suppress speech that “some people
    didn’t like,” and that the City cannot ban advertisements just because it “believes
    the content of advertising is ‘uniquely annoying.’” Appellee Br. at 23 (quoting
    City’s Mem. of Law in Support of Cross‐Motion for Summary Judgment at 20,
    ECF No. 48, Vugo, Inc. v. City of New York, No. 1:15‐cv‐08253 (S.D.N.Y. Aug. 26,
    21
    2016)); see also Tam, 137 S. Ct. at 1765 (articulating the “fundamental principle of
    the First Amendment that the government may not punish or suppress speech
    on disapproval of the ideas or perspectives the speech conveys”).
    The second prong of Central Hudson, however, asks us to evaluate the
    City’s asserted goal in enacting the regulation. Here, the City’s asserted goal is to
    protect its citizens from the offensive sight and sound of advertisements—not
    their content—while they are traveling through the city by car.8 That interest is
    clearly substantial. City governments have a substantial interest in cultivating
    “esthetic values” and preventing “undue annoyance.” Members of City Council of
    City of Los Angeles v. Taxpayers for Vincent, 
    466 U.S. 789
    , 805 (1984); Village of
    Schaumburg v. Citizens for a Better Envm’t, 
    444 U.S. 620
    , 632 (1980); see also
    Metromedia, 
    453 U.S. at
    507‐08 (“the appearance of the city” is a “substantial
    governmental” interest); Kovacs v. Cooper, 
    336 U.S. 77
    , 87 (1949) (governments are
    empowered to protect “the quiet and tranquility so desirable for city dwellers”);
    Clear Channel Outdoor, Inc. v. City of New York, 
    594 F.3d 94
    , 103‐04 (2d Cir. 2010)
    8 In support of this argument, the City submitted evidence that passengers
    find the fact, not the content, of in‐ride advertisements annoying.
    22
    (“protecting the aesthetic appearance of a city” is a substantial government goal
    that justifies regulating the display of advertisements). This is as true in publicly
    regulated transportation as it is anywhere else in the city. See Taxpayers for
    Vincent, 
    466 U.S. at 806
     (“[T]he city was entitled to protect unwilling viewers
    against intrusive advertising that may interfere with the city’s goal of making its
    buses ‘rapid, convenient, pleasant, and inexpensive.’” (citing Lehman v. City of
    Shaker Heights, 
    418 U.S. 298
    , 302‐03 (1974) (plurality opinion))). Thus, the City’s
    asserted interest is substantial.
    2.     Prongs Three and Four: “Reasonable Fit”
    “The last two steps in the [Central Hudson] analysis have been considered,
    somewhat in tandem, to determine if there is a sufficient ‘fit between the
    regulator’s ends and the means chosen to accomplish those ends.’” Bad Frog
    Brewery, Inc. v. N.Y. State Liquor Auth., 
    134 F.3d 87
    , 98 (2d Cir. 1998) (quoting
    Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 
    478 U.S. 328
    , 341
    (1986)) (alterations omitted). “The burden to establish that ‘reasonable fit’ is on
    the government agency defending its regulation, though the fit need not satisfy a
    least‐restrictive‐means standard.” 
    Id.
     (quoting City of Cincinnati v. Discovery
    Network, Inc., 
    507 U.S. 410
    , 416 (1993)). That is, the fit need not be “perfect,” but
    23
    simply “reasonable.” Discovery Network, 
    507 U.S. at
    416 n.12 (quoting Fox, 
    492 U.S. at 480
    ). Central Hudson requires “not necessarily the single best disposition
    but one whose scope is in proportion to the interest served.” Fox, 
    492 U.S. at 480
    (internal citations and quotation marks omitted).
    i. Prong Three
    To satisfy the third prong of Central Hudson, the City must demonstrate
    that (1) “the harms it recites are real,” and (2) “that its restriction will in fact
    alleviate them to a material degree.” Edenfield v. Fane, 
    507 U.S. 761
    , 771 (1993).
    Vugo argues, and the district court agreed, that the in‐ride advertising ban fails
    at this third prong because the exception for advertising on Taxi TVs renders the
    ban unconstitutionally underinclusive. We disagree.
    As an initial matter, we conclude that the City has substantiated the harm
    it seeks to prevent. The Supreme Court has “permitted litigants to justify speech
    restrictions by reference to studies and anecdotes,” such as those submitted by
    the City. Lorillard Tobacco Co. v. Reilly, 
    533 U.S. 525
    , 555 (2001) (internal citation
    and quotation marks omitted). In this case, the City provided survey data
    indicating that passengers dislike Taxi TV. In response to a 2011 survey of taxi
    passengers, nearly one‐third of respondents indicated that “Taxi TV is
    24
    annoying.” App. 313. Passengers have complained that the screens are difficult
    to turn off and cause motion sickness. They have singled out the advertisements
    on Taxi TV as especially irritating. Vugo points to only one contrary piece of
    evidence in the record: a November 2015 Quinnipiac University survey finding
    that forty‐five percent of respondents found Taxi TV to be a “pleasant diversion”
    while forty‐one percent deemed it an “annoyance.” App. at 482, 487, 490. This
    single third‐party survey does not provide a basis for us to second guess the
    City’s conclusion that in‐ride advertisements are annoying to its citizens—a
    conclusion it reached based on its own survey results and firsthand experience
    receiving complaints from customers.9
    Next, we must consider whether the City’s prohibition on advertising in
    taxicabs and FHVs adequately alleviates these harms, despite the exception for
    Taxi TV. “Although a law’s underinclusivity raises a red flag, the First
    Amendment imposes no freestanding ‘underinclusiveness limitation.’” Williams‐
    Yulee v. Fla. Bar, 
    135 S. Ct. 1656
    , 1668 (2015) (quoting R.A.V. v. St. Paul, 505 U.S.
    Moreover, we see no reason why the City may not seek to alleviate a
    9
    harm when the harm is experienced by forty‐one percent of the population.
    25
    377, 387 (1992)); see also Anderson v. Treadwell, 
    294 F.3d 453
    , 463 (2d Cir. 2002)
    (“[U]nderinclusiveness will not necessarily defeat a claim that a state interest has
    been materially advanced.” (citing Metromedia, 
    453 U.S. at 511
     (plurality
    opinion))). Indeed, “[i]t is always somewhat counterintuitive to argue that a law
    violates the First Amendment by abridging too little speech.” Williams‐Yulee, 
    135 S. Ct. at 1668
    . Underinclusiveness is problematic insofar as it, inter alia, “raise[s]
    doubts about whether the government is in fact pursuing the interest it invokes,
    rather than disfavoring a particular speaker or viewpoint,” or “reveal[s] that a
    law does not actually advance a compelling interest.” Id.; see also City of Ladue v.
    Gilleo, 
    512 U.S. 43
    , 52‐53 (1994) (“Exemptions from an otherwise legitimate
    regulation of a medium of speech may be noteworthy” because of the “risks of
    viewpoint and content discrimination” and because such exemptions “may
    diminish the credibility of the government’s rationale for restricting speech in the
    first place.”); Clear Channel, 
    594 F.3d at 106
     (“A regulation may [] be deemed
    constitutionally problematic if it contains exceptions that ‘undermine and
    counteract’ the government’s asserted interest.” (quoting Rubin v. Coors Brewing
    Co., 
    514 U.S. 476
    , 489 (1995))). The Supreme Court has also found impermissible
    regulations that draw distinctions between categories of speech that “bear[] no
    26
    relationship whatsoever to the particular interests that the [government] has
    asserted.” Discovery Network, 
    507 U.S. at 424
    ; see also Clear Channel, 
    594 F.3d at 106
    .
    The City’s in‐ride advertising ban is not unconstitutionally underinclusive.
    First, the ban materially advances the City’s interest in reducing passenger
    annoyance, notwithstanding the Taxi TV exception.10 Second, the City’s
    justification for the Taxi TV exception is sufficiently related to its interest in
    enacting the ban because both are aimed at improving the overall in‐ride
    experience, albeit in different ways: the Taxi TV exception facilitated the
    installation of equipment that (among other things) enabled passengers to pay
    for taxi rides by credit card, which is their decided preference, and the ban
    applicable to FHVs frees passengers from advertisements, which they find
    annoying. Third, the ban would survive intermediate scrutiny even if the
    exception and the ban were not related because such a relationship is not an
    independent requirement under the First Amendment. The “relationship test” is
    Vugo does not contend that the government’s real end is to discriminate
    10
    on the basis of message.
    27
    an analytical tool that in some circumstances indicates that a speech restriction is
    unconstitutional because it casts doubt on whether a regulation is “‘part of a
    substantial effort to advance a valid state interest.’” Clear Channel, 
    594 F.3d at 108
    (quoting Bad Frog Brewery, 
    134 F.3d at 100
    ). That is not the case here.
    a. The Taxi TV Exception Does Not Undermine
    the City’s Asserted Interest
    The exception for Taxi TV does not render the ban ineffective. This case is
    unlike Rubin v. Coors Brewing Co., 
    514 U.S. 476
     (1995) and Greater New Orleans
    Broadcasting Ass’n, Inc. v. United States, 
    527 U.S. 173
     (1999), on which Vugo relies.
    In Rubin, the government asserted that a prohibition on the disclosure of alcohol
    content on beer labels would combat the problem of beer companies competing
    for customers on the basis of alcohol content (“strength wars”). Rubin, 
    514 U.S. at 488
    . The Court explained that the scheme did not make “rational sense” because
    other provisions of the scheme left open ubiquitous avenues for strength wars—
    such as television advertising for beer—that “directly undermine[d] and
    counteract[ed] [the] effects” of the ban on such disclosure on labels. 
    Id. at 488, 489
    . The “irrationality” of the “regulatory framework ensure[d] that the labeling
    ban w[ould] fail to achieve its end.” 
    Id. at 488
     (emphasis added). Similarly, in
    28
    Greater New Orleans Broadcasting, the Court found that exceptions to a prohibition
    on advertisements about gambling—for, among other things, tribal gambling
    authorized by state compacts and government‐operated casinos—swallowed the
    rule, since the regulation “merely channel[led] gamblers to one casino rather
    than another.” 
    527 U.S. at 189
    . In this case, by contrast, the Taxi TV exception
    does not wholly undermine the effectiveness of the general restriction on in‐ride
    advertising by allowing the proliferation of advertisements to the same degree
    through other avenues, as in Rubin, or by channeling riders to taxicabs where
    there are offensive in‐ride advertisements, as in Greater New Orleans.
    Nor is the exception so large that the rules fail to directly advance New
    York’s interest in reducing the number of annoying ads passengers must endure.
    See Discovery Network, 
    507 U.S. at
    417‐18 (regulation did not substantially
    advance the city’s interest because it eliminated only 4% of unsightly news
    racks); Bolger v. Youngs Drug Prods. Corp., 
    463 U.S. 60
    , 73 (1983) (striking down
    prohibition that “provide[d] only the most limited incremental support for the
    interest asserted”); Bad Frog Brewery, 
    134 F.3d at 100
     (“[A] state must demonstrate
    that its commercial speech limitation is part of a substantial effort to advance a
    valid state interest, not merely the removal of a few grains of offensive sand from
    29
    a beach of vulgarity.”). On the record before the district court, the FHVs covered
    by the challenged rules accounted for over one‐third of daily TLC passenger trips
    in 2016. Special App. at 15; App. at 482‐83.11 As a result, over one‐third of the
    TLC’s ridership is spared advertisements during their rides. This reduction is
    substantial. See United States v. Edge Broadcasting Co., 
    509 U.S. 418
    , 432‐33 (1993) (a
    regulation that reduced the percentage of radio air time playing lottery ads from
    49% to 38% “significan[tly]” advanced the government’s interest). The
    government is not required to “make progress on every front before it can make
    progress on any front.” 
    Id. at 434
    .
    b. The Justification for the Taxi TV Exception Is
    Not Too Attenuated from the Justification for
    the Commercial Advertising Ban
    Vugo next argues that the ban is unconstitutional because the justification
    for the Taxi TV exception is unrelated to the justification for the commercial
    advertising ban. Appellee Br. at 30‐33. Vugo relies on Discovery Network, in which
    11  The number of FHV rides relative to taxicab rides continues to grow. See,
    e.g., Johana Bhuiyan, Ride‐hail apps like Uber and Lyft generated 65 percent more rides
    than taxis did in New York in 2017, VOX (Mar. 15, 2018, 5:16 PM),
    https://www.vox.com/2018/3/15/17126058/uber‐lyft‐taxis‐new‐york‐city‐rides (in
    December 2017, FHVs made 65% more pickups than taxis).
    30
    the Supreme Court considered a ban enacted by the City of Cincinnati on
    newsracks dispensing commercial publications, but not newsracks dispensing
    newspapers. Cincinnati enacted the ban to “ensur[e] safe streets and regulat[e]
    visual blight.” 507 U.S. at 415. Yet, the exempted newspaper newsracks were
    “equally unattractive” and “arguably the greater culprit because of their superior
    number.” Id. at 425, 426. Cincinnati justified nevertheless excluding newspaper
    newsracks from the ban on the ground that “commercial speech has only a low
    value.” Id. at 425‐26, 418‐19. The Court held that this justification for
    distinguishing between noncommercial and commercial publications was
    insufficient because the distinction had “absolutely no bearing on the interests
    [the City] ha[d] asserted.” Id. at 428.
    Vugo suggests that the “relationship test” set out in Discovery Network
    requires that the justification for the exception appeal to the identical interest
    asserted by the City in supporting the restriction. On that view, the only
    legitimate basis for exempting any advertisements from the City’s ban would be
    that such advertisements are less annoying than others. See Special App. at 16‐17.
    According to Vugo, because the City has not argued that advertisements on Taxi
    TV are any less annoying than advertisements on Vugo’s platform would be, the
    31
    exception is not sufficiently related to the City’s asserted interest in passing the
    ban (i.e., sparing riders from annoying advertisements).
    But Discovery Network does not impose such a stringent standard. The
    Supreme Court held only that distinctions that bear “no relationship whatsoever
    to the particular interests that the city ha[d] asserted” are impermissible.
    Discovery Network, 507 U.S. at 424; see also id. at 428 (“[T]he distinction . . . has
    absolutely no bearing on the interests . . . asserted.” (emphasis added)); Clear
    Channel, 
    594 F.3d at 106
     (regulations that draw “arbitrary distinctions” are
    unconstitutional). The relationship between Cincinnati’s ban and its exception
    was truly arbitrary: there was no nexus between the allegedly “low value” of
    commercial speech and the aesthetic and safety interests Cincinnati sought to
    advance by banning newsracks. The Court suggested that had there been “some
    basis for distinguishing between ‘newspapers’ and ‘commercial handbills’ that
    [was] relevant to an interest asserted by the City,” that would have been
    sufficient. Discovery Network, 507 U.S. at 428 (emphasis added).
    Moreover, Vugo’s interpretation of the “relationship” required under
    Discovery Network conflicts with the Supreme Court’s “reject[ion of] ‘the
    argument that a prohibition against the use of unattractive signs cannot be
    32
    justified on [a]esthetic grounds if it fails to apply to all equally unattractive signs
    wherever they might be located.’” Clear Channel, 
    594 F.3d at 106
     (quoting
    Taxpayers for Vincent, 
    466 U.S. at 810
    ). If Vugo were right that a government can
    only distinguish between speech based on its tendency to produce the harm the
    government seeks to prevent through its prohibition, then a prohibition against
    the use of unattractive signs could not be justified if it failed to apply to all
    equally unattractive signs wherever they might be located, a position the
    Supreme Court has rejected.
    Here, the City’s basis for distinguishing between advertisements on Taxi
    TV and all other advertisements in taxis and FHVs is sufficiently related to the
    City’s asserted interest. Both the restriction and the exception concern passenger
    comfort and convenience: passengers prefer not to see advertisements while
    riding in cabs and FHVs, but they also prefer, for example, to be able to pay for
    their rides by credit card, which TPEP and LPEP enable. The City’s ban seeks to
    balance these preferences, permitting advertisements exclusively on Taxi TV in
    order to offset the cost of the TPEP and LPEP systems to vehicle owners. Thus,
    the City’s rules, as a whole, reflect a considered determination about how best to
    improve the overall experience of passengers riding in taxis and FHVs. See 
    id.
     at
    33
    108 (“[T]here is clearly a relationship between the City’s Zoning Resolution,
    which regulates the placement of outdoor commercial advertising, and its
    interest in aesthetics and traffic safety.”); see also Metro Lights, L.L.C. v. City of Los
    Angeles, 
    551 F.3d 898
    , 905 (9th Cir. 2009) (“Central Hudson requires a logical
    connection between the interest a law limiting commercial speech advances and
    the exceptions a law makes to its own application.”). We also note that, unlike in
    Discovery Network, the City’s distinction is well‐founded and the regulations
    “go[] a long way,” Metro Lights, 
    551 F.3d at 911
    , toward achieving the City’s goal.
    See Clear Channel, 
    594 F.3d at 108
     (finding a “clear” relationship between the
    distinctions drawn between speech in a zoning resolution and the City’s interest
    in passing that resolution in part because the regulations, “as a whole,” were
    “‘part of a substantial effort to advance a valid state interest’” (quoting Bad Frog
    Brewery, 
    134 F.3d at 100
    )); Metro Lights, 
    551 F.3d at 911
    .
    c. The “Relationship Test” in Discovery Network
    Is an Analytical Tool
    Separately, even if there were not a sufficient nexus between the City’s
    justifications for the rule and its exception, the City’s ban would still pass muster
    because such a relationship is not an independent requirement under the First
    34
    Amendment. Although Vugo insists that the First Amendment categorically
    requires a relationship between the basis for a ban on commercial speech and the
    justification for any exceptions to that ban, we find no support for that position
    in the Supreme Court’s decisions addressing regulation of commercial speech,
    save for a few lines in Discovery Network. Placed in the context of Central Hudson’s
    third prong, the relationship between a government’s interest in restricting
    speech and its justification for exempting some speech from that restriction is not
    a freestanding requirement but rather an analytical tool for assessing whether a
    regulation is “‘part of a substantial effort to advance a valid state interest.’” Clear
    Channel, 
    594 F.3d at 108
     (quoting Bad Frog Brewery, 
    134 F.3d at 100
    ). The absence
    of a relationship supports—but does not compel—a conclusion that the ban is
    discriminatory, ineffective, or irrational such that it is unconstitutionally
    underinclusive.
    Sometimes, a disconnect between the government’s interest in a speech
    restriction and the government’s justification for exempting certain speech from
    that restriction reveals that the government is disfavoring a particular speaker or
    that a law does not actually advance a compelling state interest. That was true in
    Discovery Network, in which the Supreme Court concluded that the newspaper
    35
    exception to Cincinnati’s newsrack ban both reflected bias against commercial
    speech and rendered the ban ineffective. 507 U.S. at 419 (the city “seriously
    underestimate[d] the value of commercial speech”); id. at 426 (newspapers were
    “arguably the greater culprit [of blight] because of their superior number”). It
    was also true in Sorrell, in which the Supreme Court explained that the
    “exceptions based in large part on the content of a purchaser’s speech” were such
    that “[t]he law on its face burdens disfavored speech by disfavored speakers.”
    
    564 U.S. at 564
    . And in Rubin, the Court found that the exceptions “directly
    undermine[d] and counteract[ed] [the] effects” of the ban. 
    514 U.S. at 489
    . In such
    cases, the exception renders the ban impermissibly underinclusive.
    But that is not always the case. The absence of a relationship is not—in its
    own right—constitutionally fatal. Indeed, exceptions to speech restrictions can be
    justified on grounds not related to the government’s interest in enacting the
    restriction, so long as the exceptions do not “compromise[]” the “validity” of the
    government’s asserted interest. Taxpayers for Vincent, 
    466 U.S. at 811
    ; see also Nat’l
    Fed’n of the Blind v. F.T.C., 
    420 F.3d 331
    , 346 (4th Cir. 2005) (“A distinction among
    speakers is . . . not objectionable per se, but only because it renders implausible
    the government’s claim that the regulation making this distinction is narrowly
    36
    tailored to address a certain interest.”). In Taxpayers for Vincent, for example, the
    Court found an exception for signs on privately owned land justified in part by
    “[t]he private citizens’ interest in controlling the use of his own property,” which
    was not related to the “visual assault . . . presented by an accumulation of signs”
    that the City sought to stem through its regulation. 
    466 U.S. at 811, 807
    . In Clear
    Channel, we upheld a regulation banning billboard advertising near highways in
    New York City, except for signs on Transit Authority property, even though the
    city had identified no reason to think that signs on Transit Authority property
    were less dangerous or ugly than signs on other property. See 
    594 F.3d at 106
    . We
    explained that “[t]he fact that the City has chosen to value some types of
    commercial speech over others does not make the regulation irrational.” 
    Id. at 109
     (internal citation omitted). And, in Metromedia, the plurality opinion accepted
    the city’s judgment that commercial enterprises, as well as the public, had a
    greater interest in onsite advertising than offsite advertising and accordingly
    decided that “the city’s interests in traffic safety and [a]esthetics . . . should yield”
    in the case of the former but not the latter. 
    453 U.S. at 512
     (plurality opinion).
    On the logic of these decisions, the First Amendment allows a government
    to carve out exceptions to a speech restriction for reasons unrelated to the
    37
    government’s basis for enacting the restriction in the first place. See Nat’l Fed’n of
    the Blind, 
    420 F.3d at 345
     (the First Amendment requires only “a legitimate
    ‘neutral justification’ for” regulating some speakers but not others (quoting
    Discovery Network, 
    507 U.S. at
    429‐30)). Otherwise, a government could never
    address competing concerns by crafting exceptions to speech restrictions. For
    example, a government could never pass a regulation reflecting its judgment that
    its interest in aesthetics were outweighed by some commercial interests (onsite
    advertising) but not others (offsite advertising). See Metromedia, 
    453 U.S. at 512
    (plurality opinion). The First Amendment does not impose such stringent
    constraints on government decision‐making.
    In this case, although the City’s reason for excluding Taxi TV from its in‐
    ride advertisement ban is not directly related to the City’s interests in enacting
    the ban, the exclusion is nevertheless rational.12 See Clear Channel, 
    594 F.3d at 109
    .
    The rules “reflect[] a decision by the city that” its interest, and the public’s
    interest, in the LPEP and TPEP systems “is stronger than the [C]ity’s interests in
    12 As already noted, supra note 10, Vugo does not argue that the City was
    in fact motivated by a desire to restrict a particular category of speech, rather
    than its stated desire to improve the in‐ride experience.
    38
    . . . [a]esthetics.” Metromedia, 
    453 U.S. at 512
    . We see no basis to upset the City’s
    policy judgment.
    ii. Prong Four
    Finally, under Central Hudson’s fourth prong, the City must establish “that
    the regulation [does] not burden substantially more speech than is necessary to
    further the government’s legitimate interests.” Clear Channel, 
    594 F.3d at 104
    ; see
    also Safelite Grp., Inc. v. Jepsen, 
    764 F.3d 258
    , 265 (2d Cir. 2014) (assessing whether
    an ordinance was “more restrictive than necessary to effectuate the government’s
    legitimate interests”). In other words, the government must “affirmatively
    establish” a reasonable fit between the regulation and its goal. Fox, 
    492 U.S. at 480
    . This prong does not require “that there be no conceivable alternative” to the
    government’s approach, or that the government’s regulation be the least
    restrictive means of advancing its asserted interests. 
    Id. at 478
    ; see also Clear
    Channel, 
    594 F.3d at 104
    . In addition, the City is afforded “considerable leeway in
    determining the appropriate means to further a legitimate government interest.”
    Clear Channel, 
    594 F.3d at 105
     (internal alterations and quotation marks omitted).
    We are “loath to second‐guess the [g]overnment’s judgment to that effect.” Fox,
    
    492 U.S. at 478
    ; see also 
    id. at 481
     (“[W]e . . . provide the Legislative and Executive
    39
    Branches needed leeway in a field . . . traditionally subject to governmental
    regulation.” (internal quotation marks omitted)).
    The City’s determination here about how to regulate in‐ride advertising is
    “reasonable.” Clear Channel, 
    594 F.3d at 104
    . Vugo, in effect, contends that,
    instead of entirely banning advertising in FHVs, the City could carve out a Taxi
    TV‐like exception for FHVs. Specifically, Vugo argues that the TLC could allow
    video advertising but require that the hardware include an on‐off switch or mute
    button, and/or impose content‐neutral limitations on the placement and size of
    the video advertisements. Appellee Br. at 34. We have before rejected a
    contention analogous to the one that Vugo raises here. In Clear Channel, plaintiff
    argued that the city should have “adopted a ‘size and spacing’ regulatory
    regime” rather completely prohibiting the display of signs in certain locations.
    Clear Channel, 
    594 F.3d at 105
    . We disagreed, deferring to the city’s judgment
    about “the appropriate means to further [its] legitimate governmental interest.”
    
    Id.
     Similarly, in Metromedia, the Supreme Court explained that “[i]f the city has a
    sufficient basis for believing that billboards are traffic hazards and are
    unattractive, then obviously the most direct and perhaps the only effective
    40
    approach to solving the problems they create is to prohibit them.” 
    453 U.S. at 508
    ;
    see also Taxpayers for Vincent, 
    466 U.S. at 817
    ; Fox, 
    492 U.S. at
    480‐81.
    Here, too, we must defer to the City’s judgment. The record shows that,
    notwithstanding the limitations the City places on Taxi TVs, passengers find the
    advertisements on Taxi TV annoying. Therefore, a restriction on the size of the
    devices on which FHV drivers would run Vugo’s platform would not
    substantially further the interests the City’s ban seeks to advance. In addition, the
    record supports the City’s position that on‐off or mute buttons would not
    eliminate the harms identified by passengers that the ban seeks to redress, given
    that passenger complaints about Taxi TV often include frustration with
    malfunctioning on‐off switches and mute buttons—and with needing to navigate
    the on‐screen interface in order to obtain peace and quiet in the first place. In
    other words, Vugo’s suggested modifications to the regulatory scheme would
    replicate the precise system that has already proved to hinder passenger comfort
    and convenience.
    Thus, we conclude that the City’s determination that banning ads
    altogether is the most effective approach was reasonable. Like the ban on
    billboards in Taxpayers for Vincent, Metromedia, and Clear Channel, the City’s
    41
    prohibition is the “most direct and perhaps the only effective approach” to
    prevent the harms of intrusive and annoying advertisements. Taxpayers for
    Vincent, 
    466 U.S. at 817
     (internal quotation marks omitted).
    CONCLUSION
    The City’s prohibition on advertising in FHVs does not violate the First
    Amendment under Central Hudson. The City’s asserted interest is substantial, the
    prohibition “directly advances” that interest, and the prohibition is no more
    extensive than necessary to serve that interest. Accordingly, we REVERSE the
    judgment of the district court and direct the entry of judgment in favor of the
    City.
    42
    

Document Info

Docket Number: 18-807

Citation Numbers: 931 F.3d 42

Filed Date: 7/16/2019

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (28)

Chandok v. Klessig , 632 F.3d 803 ( 2011 )

Richard Morales v. Quintel Entertainment, Inc. And Peter ... , 249 F.3d 115 ( 2001 )

Patricia C. Anderson, Michael A. Hosein and Stephen E. ... , 294 F.3d 453 ( 2002 )

Costello v. City of Burlington , 632 F.3d 41 ( 2011 )

Clear Channel Outdoor, Inc. v. City of New York , 594 F.3d 94 ( 2010 )

bad-frog-brewery-inc-v-new-york-state-liquor-authority-anthony-j , 134 F.3d 87 ( 1998 )

National Federation of the Blind Special Olympics Maryland, ... , 420 F.3d 331 ( 2005 )

Posadas De Puerto Rico Associates v. Tourism Co. of Puerto ... , 106 S. Ct. 2968 ( 1986 )

Metro Lights, L.L.C. v. City of Los Angeles , 551 F.3d 898 ( 2009 )

Members of the City Council of Los Angeles v. Taxpayers for ... , 104 S. Ct. 2118 ( 1984 )

Village of Schaumburg v. Citizens for a Better Environment , 100 S. Ct. 826 ( 1980 )

Lehman v. City of Shaker Heights , 94 S. Ct. 2714 ( 1974 )

Central Hudson Gas & Electric Corp. v. Public Service ... , 100 S. Ct. 2343 ( 1980 )

Kovacs v. Cooper , 69 S. Ct. 448 ( 1949 )

City of Ladue v. Gilleo , 114 S. Ct. 2038 ( 1994 )

Rubin v. Coors Brewing Co. , 115 S. Ct. 1585 ( 1995 )

44 Liquormart, Inc. v. Rhode Island , 116 S. Ct. 1495 ( 1996 )

Greater New Orleans Broadcasting Assn., Inc. v. United ... , 119 S. Ct. 1923 ( 1999 )

Williams-Yulee v. Florida Bar , 135 S. Ct. 1656 ( 2015 )

Bolger v. Youngs Drug Products Corp. , 103 S. Ct. 2875 ( 1983 )

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