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
