Ninth Circuit Opinion: Uber Technologies vs. City of Seattle

FOR PUBLICAT ION UNITED STATES COURT OF APP EALS FOR THE NINTH C IRCUIT UBER TECHNOLOG IES, INC.; PORTIER, LLC, Plaintiffs - Appellants, and MAPLEBEAR INC., doing business as Instaca rt, Interveno r - Plaintiff, v. CITY OF SEATTLE, Defendant - Appellee. No. 25-228 D.C. No. 2:24- cv -02103- MJP OPINION UBER TECHNOLOG IES, INC., PORTIER, LLC, Plaintiffs, and MAPLEBEAR INC., doing business as Instaca rt, No. 25-231 D.C. No. 2:24- cv -02103- MJP

2 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Interveno r - Plaintiff - Appellant, v. CITY OF SEATTLE, Defendant - Appellee. Appeal s from the United States D istrict Court for the Western Distric t of Washington Marsha J. Pechman, District Judge, Presiding Argued and Submitted July 10, 2025 Seattle, Wa shington Filed March 4, 2026 Before: S usan P. Graber, Richard R. Clifton, and Mark J. Bennett, Circuit Judges. Opinion by Judge Clifton; Partial Dissent by Judge Bennett

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 3 SUMMARY * First Am endm ent The panel a ffirmed the district cou rt’s denial of a motion by Uber Technologies, Inc. and Maplebear Inc. for a prelimina ry injunction t o enjoin the City of Seattle from enforcing Seattle’s App - Based Work er De activat ion Right s Ordinan ce (the “Ordin an ce”), w hich applies to network companies that provide a platfor m for customers to hire temporary workers and prohibits unwarranted deactivations of these ap p -based workers’ accounts. Section 8.40.050.A of the Ordinance requires (1) that a network company “inform” any app - based w orker “in writing” of the company’s deactivation policy and (2) that the deactivation policy be “reasonably related” to the company ’s “safe an d ef ficient operat ions.” Plai ntiffs, two network companies that rely on app - based workers for their busin esses, al leged th at the Ord inance compels speech in violation of the First Ame ndment, an d that it is unconstitutionally vague. The panel held that the Ordinance does not regulate speech subject to protection under the F irst Amendment because the Ordinance regulates nonexpressive conduct — the unwarranted deac tivation of worker accounts. The fact that the Ordinance, in plaintiffs’ wo rd s, n ecessari ly “compel[s] and dict ate[s ] the co nten t of a wr itten communication” does not transform a law regulating * This s ummary consti tutes no part of the o pinion o f the court. It has been pre pared by c ourt st aff f or the conve nience of the re ader.

4 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE nonexpressive activity into one that infringes speech, and any burden on speech is incidental. Alterna tively, even if the O rdinance is interprete d to regulat e speech, that s pe ech would be com mercial speech, and the Ordinance’s regulation of it would over come the applicable lower level of First Am endment scrutiny. Because t he Ordi nance r egulat es de ac tivation standards and requires companies to communicate those standards to t heir workers, the panel applied the test articulated in Zau derer v. Office of Disciplinary Counsel of the Suprem e Court of Ohio, 471 U.S. 626, 651 (1985). As to the Ordinance’s first requirement that network companies inform app - based wo rkers o f th eir de activat ion policies, th e panel he ld that it meets the te st drawn f rom Zauderer, because the provision is reasonably related to Seattl e’s goal to keep app - based workers informed and employed while keeping the public safe, does not purport to compel speech on controversial issues, and is n ot unduly burdensome. Concerning the Ordinance’s second requirement that the deactivat ion po licies be “r eason ably rel ated” to th e compani es’ “s afe and efficient oper ations ”, th e panel concluded that provision is not an impermissible regulation of speech, bec ause it reg ulat es speech related to w hat S eattle has designated as unlawful activity: the unwarranted deactivations of worker accounts. The panel further held that the Ordinance is not unconstitutionally vague because it provides fair notice to a person of ordinary intelligence as to what g rounds for deactivat ion ar e reaso nabl y related t o saf ety and e ffici ency.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 5 Accordin gly, t he panel hel d that b ecause P laint iffs ar e unlikely to suc ceed on the mer its of their claim, the distr ict court did not abuse its discretion wh en it denied the preliminary injunction. Dissenting in part, Judge Bennett agr eed with the majority that the Ordinance is not unconstit utionally vague. However, in his view the Ordinance deactivation policy requirement compels speech and is thus subject t o the First Amendm ent. Whi le he agreed wit h the major ity’s alternative reasonin g that t he spe ech at issue i s commer cial s peech subject to in termediate scrutiny, Pla intiffs raise d serious questions going to the merits. He would therefore v acate and remand to have the district court redo its analysis on the merits and reexami ne t he Winter preliminary injunction factors in light of a det ermination that the Ordinance is subject to intermediate scrutiny, and in light of the current facts. COUNSEL David M. Zionts (argued), Stacey K. Grigsby, Alexander J. Cave, and Neha Jaganathan, Covington & Burling LLP, Washington, D.C.; Neema Sahni, Covington & Burling LLP, Los Angeles, California; Rober t J. Maguire and Theo A. Lesczynski, Davis Wright Tremaine L LP, Seat tle, Washington; for Plaintiffs-Appellants. Alexander T. MacDonald (argue d), Littler Mendelson PC, Washington, D.C.; Douglas E. Smith, Litt ler Mendelson PC, Seattle, Washington; for Intervenor- Plaintiff - Appellant.

6 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Jessica L. Goldman (argued), Jesse L. Taylor, Lawrence C. Locker, Molly J. Gibbons, and Eva S. Oli ver, Summit Law Group PLLC, Seattle, Washington; Ghazal Sharifi, Assistant City Attorney; Ann Davison, City Attorney; S eattle City Attorn ey's Offi ce, Seat tle, Washington; for Defendant - Appell ee. Jason W. Anderson, Mark C. Lamb, and Nicholas A. Carlson, Carney Badley Spellman PS, Seattle, Wa shington, for Amicus Curiae Washington Food Industry Association. Adam G. Unikowsky and Jonathan J. Marshall, J enner & Block LLP, Washington, D.C.; Jonathan D. Urick and Audrey Beck, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae the Chamber of Comme rce of the United State s. Jonathan B. Miller and Naomi Tsu, Public Rights Project, Oakland, California; Robert Taylor, City Attorney, Office of the Portland City Attorney, Portland, Oregon; Heather Ferbert, San Diego City Attorney, O ffice of the San Diego City Attorney, San Diego, Calif ornia; for Amici Curiae Local Governments. Jessica A. Skelton and W. Scott Fer ron, Pacifica Law Group LLP, Seattle, Washington, for Amicus Curiae International Municipal Lawyers Association.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 7 OPINION CLIFTON, Circuit Judge: T he City of Se attle enact ed Ordinance 126878 (the “Ordinance”) in 2023. 1 It added a new chapter 8.40 to the Seattl e Muni cipal Co de, titled the “App - B ased Wo rker Deactivation Rights Ordinance.” Applying to “network companies” that provide a platform for customers to hire temporary wo rkers, like delivery drivers, the Ordinance prohibits “unwarrant ed deact ivatio ns” of th ese app - based workers’ accounts. Seattle, W ash., Ordinance 126878, § 8.40 (Aug. 14, 2023). The law is Seattle’s a ttempt to address what it p erceives to be the instabili ty of the gig economy and the consequent vulnerability of deli very workers. Uber Technologies, Inc., including its wholly owne d subsidiary Portier, LLC (“Ub er”), and Mapl ebear Inc. (“I nsta cart ”) (co llecti vely, “P laint iffs”) are tw o net work companies that rely on app - based wor kers for thei r businesses. They claim that the Ordinance violates their constitutiona l rights in two ways: it impermissibly infringe s on thei r protect ed speech, and it is void for va gueness. They appea l the district court’s de nial of their motion for a preliminary injunction to enjoin enforc ement of t he Ordinan ce again st them. We conclud e that th e Ordi nance does n ot regul ate speech subject to protection under the First Amendment because th e Ordinance regulates nonexpressive conduct — the unwarranted deactivation of worker accounts. Even if the 1 Releva nt portio ns of t he Ordi nance a re atta ched as an a ppendix t o this opinion.

8 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Ordinance is int erpret ed to regulate s peech, that speech would b e commerci al sp eech, and the Ordinance ’s regulation of it would overcome the applicab le lo wer level of Firs t Amendment scrutiny. As for the vagueness challeng e, we conclud e that the Ordinance is not unconstitutionally vague, b ecause a person of ordinary intelligence would understand its meaning. Accordingly, t he district co urt did not abuse its discretion when it denied Plaintiffs’ request f or a preliminary injun ction, and w e affirm. I. Background Uber and Instacart are la rge comp anies i n the growing gig economy. Plaintiffs and other c ompanies like them connect workers with customers, then take a cut of pa yments made by the customers. R elevant t o the Ord inan ce, Uber and Instacart act l argely as d elivery s ervice s. (The Ordinance does no t apply to c ertain catego ries o f ap p - based workers, like ri deshare dri vers, which is what many people may immediately think of as “U ber.” Ordi nance § 8.40.020.) Their workers pick up orders from restaurant s, or retail er s, or even other customers on the app. The workers also can operate as p erson al sho pper s by going to busi ness es like grocery s tore s, bro ws ing for items, and delivering th ose items to customers. Both workers and customers access th ose serv ice s through accounts on app s built by the network compan ies. While Ub er and Instac art are the parties to bring this challeng e, any app - based worker regulation affect s more than just the users of t h o se two pla tforms. As of 2021, s ixteen percent of adults in the United States have ea rned money via an online gig platfor m. Monica Anderson e t a l., The State of Gig Work in 2021, P EW R SCH. C TR. (Dec. 8,

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 9 2021), https://www.pewresearch.org/internet/2021/12/08/the- state - of-gig- work - in -2021/ (last visited Oct. 2 9, 2025). Seattl e’s Ordinance prohibits deactivations of app - b ased workers for reasons that it s drafters deemed un warran ted. Ordinance § 8.40.060.A. Plainti ffs do not challenge th at prohibition but inst ead challenge the constitutionality of certain provisions of the Ordinance, in particula r section 8.40.050, titled “Deactivat ion req uirem ents.” Th at sect ion require s (1) that a network company “inform” any app - based worker “in writing” of the company’ s deactivation policy and (2) t hat the deactivat io n poli cy be “reasonab ly rel ated” to the company’s “safe and efficient operations.” Id. § 8.40.050.A.1–2. The Ordinance includes a list of eight example policies that are not reason ably r elated t o s afety an d ef fici ency. Id. § 8.40.050.A.2.a–h. The list includes policies t hat would result in a deactiva tion “based sole ly on a quantitative metric derived f rom ag gregat e cust omer rati ngs” or “ba sed on the results of a background chec k, consumer report, driver record, or record of traffic infractions, except in case s of egregious misconduct or wher e required by other applicable law.” Id. § 8.40.050.A.2. e, h. 2 2 “ Egregious misconduc t ” is de fined as: [A]n acti on or behavi or by an indi vidual app - based worker that: (1) endangers th e physic al safe ty of the custome r, or a third pe rson, t he netw ork com pany, o r an animal; or (2) intentionally causes economic harm to the cus tomer, a t hird pers on, or the net work company; or (3) is threa teni ng, haras sing, or abusi ve to the cus tomer, a thi rd party, or the networ k compa ny.

10 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE The Ordinance applies only to internal communications with app - based workers. It does not re quire that the companies communicate any deactivation policies to the general public. Nor do es i t require that the comp anies commun icate their agreement with such pol icies. The compani es may d escribe th e policies as being required by the Ordinan ce. Seattl e’s stat ed purpose for enacting the Ordinance is to “protect [] and promote [] public health, safety, and welfare.” Id. § 1.C. Mi nimum labor standards are reco gnized as help ing both employers, by improving worker performance and quality, and workers, by increasing job stability. Id. § 1.E, W. But network companies’ growing reliance on algorithms le ads, Seattle says, to “arbitrary evalua tions and unwarranted deactivations.” Id. § 1. H. Establishing “c lear performan ce exp ectatio ns, ” limitatio ns on de activations predicat ed on quantitative metrics and possibly inaccurat e background checks, and a legal right to challeng e unwarr anted dea ctivat ions are al l attem pt s to regulat e relianc e on automatic, algo rithmic dete rminations of worker- eligibility. See id. § 1.I –L, P, U. Uber filed this action seeking a temporary restraining order and preliminary injunction against the Ordinance shortl y before it was set t o tak e eff ect. It alleg ed three claims,. . . [I t] includes but is not limited to... failing to maintain a valid state d river ’ s lice nse.. . .. . . [It] shal l not i nclude c onduct rel ated to non - criminal m oving violations ... or traffic collisions unless the app - based worker has accumulated more than three non - cri minal moving viol ations or at - f au lt collis ions i n the previo us three years. Id. § 8.40.02 0.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 11 two of which are pursued in thi s appeal: that the Ordinance compels speech in violation of the First Ame ndment, and that it is unconstitut ionally vague. 3 Instacart moved to interv ene and, in doing so, agreed to forego ind ependent briefing on the temporary re straining order befo re the district court. The district court held t hat the Ordinance regulates the deactivation of worker accounts, with any ef fect s on sp eech or expression being “in cidental to its worke r - related conduct goals.” The court conclude d that the Ordinance was not void because the te rm “reas onab le” was not vagu e, and any discrep ancies in interpre tation were rooted in a “fundamental disagreement” b etween Ub er and Seattl e over what pol icies are reason ably rel ated to safe and effici ent operations. After determin ing that Uber did n ot show a likelihood of establishing any constitutional violation, the district co urt found n eith er irr eparabl e harm n o r a b alance o f equities or public interest tipp ing in Uber’s favor. It denied the motion for a temporary restraining orde r and preliminary injunction. Uber and Instacart appealed. A stay pending final resolution of the appeals, entered by the dis trict co urt b ased on a stipulation of the parties, is currently in place. We have jurisdiction under 28 U.S.C. § 129 2(a)(1). A district co urt’s denia l of a prelimina ry injunction is revie wed for abuse of discretion, a “limited and deferential” standard. Harris v. Bd. of Supervisors, 366 F.3d 754, 76 6 (9th Ci r. 2004); see als o X Corp. v. Bonta, 116 F.4th 888, 897 (9th 3 The thir d claim cited in the compla int, that the Ordinance restr icts Uber’s expressive association al rights in violation of the First Amendment, has not been ar gued in t his ap peal.

12 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Cir. 2024). The underlying issues of law that l ed to that decision, such as whether the Ordinance compels speech or merely regulates c onduct, are reviewed de novo. See Harris, 366 F.3d at 760. II. First Am endm ent claims Uber an d Ins tacart a rg ue that S eatt le’s O rdin ance compels pure, content - based speech in violation of the Fir st Amendment in two ways. First, the notice require ment compels speech by forcing the companies to comm unicate their de activation po licies and decisions in wr iting an d mak e them accessible to workers. Second, the deactivation standard s regulat e that s peech’s cont ent by requiring that the compani es’ poli cies b e, in the words of the Ordinance, “reason ably rel ated” t o “safe an d effi cient operat ions.” A. Conduct As the parties bringing the challenge, Plaintiffs “bear[] the burden ‘to demonstrate that the F irst Amendment even applies.’” B & L Prods., Inc. v. Newsom, 104 F.4th 108, 112 (9th Cir. 2024) (quoting Clark v. Cmty. for Crea tive Non - Violen ce, 468 U.S. 288, 29 3 n.5 (1984)), c ert. de nied, 145 S. Ct. 1958 (2025). They fail to do so. The Ordinance regulates conduct, not speech. While “f reedom of speech prohibits the government from telling people what the y must say, ” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 61 (2006), n o t every l aw th at resul ts in a bu rden on speech is subj ect to scrutiny as a r egulati on of sp eech. Restrictions on conduct are subject to scrutiny only if the conduct includes a “signi ficant ex pressiv e elem ent that drew the l egal remedy in the firs t place.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986). Here, t he conduct that draws th e rem edy is t he

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 13 unwarranted deactivation of worker accounts. W hen conduct is nonexpressive, as is the case here, it is not subject to First Amendment scrutiny. B & L Prods., 104 F.4th at 110; see also Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). When d etermi ning wh ether a law regul ates su ffi cientl y expressive conduct, a court may consider both the “ inevit able effect of a [l aw] on its face” and the law’s “s tated purpose.” HomeAway.com, Inc. v. City of Santa M onica, 918 F.3d 676, 685 (9th Cir. 2 019) (quoting Sorrell, 564 U.S. at 565). We consider both in turn. The inev itable eff ect of t he Ord inanc e is to en sure that network companies devis e poli cies that do not result in unwarranted deact ivat ions of app - based wo rkers ’ accounts. At its core, then, t he Ordinance regulates a business agreement between two parties: the network company and the worker who uses the company’s platform to obtain gigs. A business agreement between two parties is not conduct with a signif icant expr essive eleme nt. See B & L Prods., 104 F.4th at 114 (holding that ac ceptan ce of an of fer to s ell firearms on state property is not conduct with a significant expressi ve elem ent); HomeAway.com, 918 F.3d at 685 (holding that booking a short - term rental through an online platform is not conduct with a significant expressive element); Int’l Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 40 8 (9th Cir. 2015) (“A business agreement or business dealings between a franchisor and a franchisee is not conduct with a ‘significant expressive element.’”); see also Janus v. Am. Fed’n of State, Cnty., & Mu n. Emps., Council 31, 585 U.S. 878, 946 (2018) (K agan, J., dissenting) (noting tha t the Supreme Court “ha s rejected all attempts” to make a First Amendment issue out of basic employment matte rs).

14 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE The Ordin ance’s s tat ed pu rpose is to “prote ct [] and promote [] public health, safety, and welfare by establishing protections against unwarranted deactivations for a pp- based workers. ” Ordinance § 1.C. It does so by requiring network companies to inform app - based worker s of wh at actio ns might lead to deactivation, Ordinance § 8.40.050.A.1, presumably so they can conform their conduct to the compani es’ exp ectatio ns, and by prohibiting policies that might lead to unw arranted deactivation, id. § 8.40.050.A.2. The Ordinance’s goal is to ke ep app - based workers informed and employed while keeping the public safe. See id. § 1. Nothing in the text of th e Ordinan ce suggests an intent to restrict speech. 4 4 The par tial dissent tak es issue with o u r reading of the Ordi nance’s stated purpos e, ar guing that it “ is more ambi guous tha n t he majorit y says.” Pa rtial Disse n t at 38. The partial dissent appears to concede that “protect [ing] and pr omot[in g] public he alth, sa fety, an d welfare,” Ordinance § 1.C, is the O rdinan ce’s state d purpose, but it adds anothe r purpose to the mix — “to compel [P] laintiffs’ pu blication o f deactivatio n policies.” Partial Dissent at 38. We disagree wit h that read ing for tw o reaso ns. First, the text of subse ction 1.H, which the partial dissen t cites in support of the a dditi onal pu rpose it proffe rs, simp ly reflects Seattle’s finding that “[a]pp - based work ers oft en do not have the infor mation the y need to know ab out how the y wil l be evaluat ed.” That subsecti on does not displace the central purpos e of the Or dinance, stated earlier in subsec tion 1.C. Rather, it me re ly serves as one among ma ny f indings that Seattle considered whe n enact ing the Ordi nance. Second, a nd more f undame ntally, e ven assum ing tha t subsectio n 1.H does announce a purpose of the Ordi nance, th e partial dissent’s reading isola tes a small part of the law, a nd, in doi ng so, misses the central purpose animati ng the Ordinanc e. In the Firs t Amendment context, th e fact that other purpos es may be inferre d f rom a law’s text does n ot bar us from recog nizing that the law has a ce ntral stated purpose. Cf. HomeAway.com, 918 F.3d at 685 (“The O rdinance itsel f makes clear that the C ity’s ‘central and significant goal. . . i s

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 15 Plaintiffs urge us to look beyond the law’ s stated purpose and to focus solely on the contested provisions. They argue that sub sections 8.40.050.A.1 – 2 do not prevent the m “from deactivating courier accounts on any ground, and the fact that a separate provision addresses account deactivations does not mean no First Amendment scrutiny applies. ” But this reading ignore s the placement of these provisions “in the context of the Ordinance as a whole.” Yim v. City of Seattle, 63 F.4th 783, 792 (9th Cir. 2023) (quoting First R esort, Inc. v. Herr era, 860 F.3d 1263, 1274 (9th Cir. 2017)). To r ead these provisions independently from the Ordinance would be to orphan them from their purpose: prev ent i ng unwarr anted deactivat ions. 5 preserva tion of i ts hous ing st ock and p reser ving the qualit y and natur e of reside ntial neighbor hoods.’” (al terati on in original)). O ur reading that the Ordina nce’s central pur pose i s to “protect[] and pr omot[e ] public health, safety, and welfare” is reinforced by the fact that, unlike any other provision in s ection 1, the pur pose articulated in subsecti on 1. C i s attributed to “ [t] his or dinance,” that is, to the entirety of th e law. Ordinance § 1.C. Additional ly, the words “healt h,” “safety,” and “welfare” are repeated throughout the Ordinance with a regular ity that further undersc ores their centrality a nd significan ce to the Ordinance as a whole. See, e.g., id. § 1.B (“public health, safety, and welfare”); id. § 1. C (sam e); id. § 1. V (“safety”); id. § 1. W (“welfare” and “health”). Moreover, the Ordi nance doe s not requi re Plaintiffs to c ommunica te a deactivation poli cy to an yone other t han the workers affect ed by it an d does no t require Plain tiffs to state the ir agreem ent with or supp ort for the limitations im posed b y the City. Those point s further d emonstrate th at the cent ral pur pose of the Or dinance i s to regulate t he te rms of network companies’ deactivation of app - based w orkers, not to c ompel network companies’ speech. 5 The partial d issent relies on the dela yed ability of Seattle’s Of fice of Labor Sta ndards t o fine netw ork companie s for vi olating t he Ordinance ’s prohibiti on on unwarra nted deactiva tions, see Ordina nce § 8.40. 130.B, to argue that the req uireme nt that network compani es pr omulgate

16 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE The fact that the Ordinance, in Plaintiffs’ words, necessa rily “co mpel[s ] and dictat e[s] the content of a writte n communication” does not transform a law regulating nonexpressive activity into one that infringes spee ch. 6 deactivation policies that are reasonably related to the companies’ safe and effi cient o perations is n ot inc idental t o the s ubstant ive pr ovisions of the Ordinance, Partial Dissent at 36 – 37. To the c ontrar y, the dela y demonstra tes tha t the subs tantive provis ions are w hat count. An affect ed app - based worke r can sue a networ k compan y for a ny viola tion of any provision of the Ordi nance. Id. §§ 8.40.060. C, 8.40. 230. The Office al so can enforce immediately the requirements that network companies create internal procedures for app - based worke rs to chal lenge deac tivati ons, id. § 8.40.060.B.1, t hat networ k compa nies provide rel evant records to workers w ho bri ng such c halle nges, id. § 8.40.080, th at networ k companies provide a writte n notice of rights under t he Ordi nance to every a pp - based wor ker (a require ment that Plai ntiffs do not challenge), id. § 8.40.100, a nd that networ k compani es not retali ate agai nst w orkers who exerci se thei r rights under the Ordina nce, id. § 8.40.120.B. The delay on wh ich the partial dissent relie s merely reflec ts Seattle’s policy decisi on to puni sh violat ors for u nwarrant ed deact ivation s, by fini ng them, only lat er. Fo rbearanc e of fi nancial punishm ent d oes not logic ally suggest that infor ming app - based w orkers ab out the kin ds of c onduct that can lead to deactiv ation is mor e than in cidental to establishin g their right to be f ree from unwarra nted de activat ion. Ins tead, thi s del ay suggest s only that the C ity cares more a bout encoura ging compli ance with the subst ance of the new Ordina nce tha n about p unishing violator s. 6 Any sugges tion in the parti al diss ent to the contrary is mistaken. The partial disse nt observes that the O rdinance require s Plai ntiffs “ to draft and provide worke rs a wri tten” deactiva tion pol icy. Partial Dissent at 34 – 35. We agree that i t does. See Ordinance § 8.40.050.A.1. The partial dissen t then conclude s t hat “[t ]he draft ing an d publi cation of such a policy is speech ” within the meaning of t he Fi rst Ame ndment. Partial Dissent at 35. We disagree. A s a thresh old matter, the fact that speech may ensue incidentally from a gove rnment regula tion that otherwi se concerns nonexpress ive conduct — her e, network c ompanie s’ deact ivation of ap p - bas ed workers’ accounts — does not mean that such “speech” receives protection under

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 17 the Fir st Amendm ent. The Supreme Court not only has conc luded t hat nonexpres sive conduct is undes erving of Fi rst Amendm ent prote ction, but also has held th at not all activity conducted with an intent to exp ress an idea amounts to speec h wit hin the mea ning of t he First Ame ndment. See, e.g., United S tates v. O’Brien, 391 U.S. 367, 37 6 (196 8) (reje cting the notion that, “wheneve r the per son engagi ng in th e conduc t intend s thereby to express an idea,” the pers on enga ge s i n speech un der the F irst Amendment). We have follow ed sui t. See, e.g., Edge v. City of Everett, 929 F.3d 657, 6 69 (9th Cir. 2 019) (holding t hat t he plai ntiffs’ weari ng of bikinis while w orking was not protected by the Fi rst Ame ndment because there was not a “‘grea t li kelihood’ that their int ende d messa ges relate d to empowe rment a nd c onfidence will be un derstood by those who view them”). That is why, eve n if the O rdinance we re understood to b e “ not wholly unrelat ed to a communica tive co mponent, ” “ t hat in itself [would] not trigger Firs t Amendment scrut iny.” Int’l Franchis e Ass’n, 803 F.3d a t 408. Nor is the p artial dissent’s inv ocation of X Co rp. pers uasi ve in support of its conclusion t hat t he Ordinance ’s requi rement that network companies promulgat e deactivation po licies compel s such c ompanies to engage i n commercial speech. Partial Dissent a t 35. I n X Co rp., a s th e partial dissen t notes, we observed that a social media com pany’s posting of its “existing [terms of s ervice] and content moderati on policies” was commercial speech. 116 F.4th at 901. B ut that observat ion wa s dictum. On app eal, the plaintiff challen ged only the relevant statute’s requireme nts t hat soci al media companies submit t o the s tate semia nnual repor ts detailing their content - moderation practices and the ways in which th eir terms of s ervice address, inter alia, hate speech or racism, and tha t social media companies n ot materially omit or misrepre sent required i nformati on in suc h reports. Id. at 894, 898. Acco rdingly, we did not co nsider t he stat ute’s requi rement that soc ial media companies publicly pos t thei r existi ng terms of servi ce. Id. Moreover, in X Corp., we reaffirme d that commercial speech generally is “s peech that does no more tha n propose a commerc ial t ransact ion,” id. at 900 (quoti ng Un ited States v. Unite d Foods, Inc., 533 U.S. 4 05, 409 (2001)), and t hat t he “commercial speech analysis i s fact - driven,” id. (quotin g First Reso rt, Inc. v. Herrera, 860 F.3d 126 3, 1272 (9th C ir. 2017)), there by reje cting any sweeping sugge stion tha t woul d have the unwarra nted c onsequenc e of designa ting muc h, if not all, ac tivity with co mmercia l indicia as commercial speech that im plicat es the First Am endmen t. Regardless, as

18 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE “[C]ompelled changes in conduct — which might inciden tally compel ch an ges in s peech — ar e not re viewed as content- based spe ech res tricti ons.” Olympus Spa v. Armstrong, 138 F.4th 1204, 1216 (9th Cir. 2025). Plaintiffs can still voic e their d ispleasur e with the O rdinance ’s standards, even while complying with them. Nothing prevents Plaintiffs f rom relea sing stateme nts, posting notices, or engaging the pre ss in discussions about what grounds for deactivation they believe ar e r easonab ly relat ed to the safety and eff iciency of their businesses, including those ground s that the Ordinance explicitly identifies as not related to safety and effici ency. They can even inc lude in the communica tion s to their worker s, alongside the required statemen ts of their deactiva tion policies, a statement that they disagree with the Ordinance ’s r equirem ent s and the City ’s assess ment o f what is reasonabl y relat ed to safe and efficient operat ions. That is their right. But it is no t their right to disregard a valid economic re gulation tha t targets neither speech nor expressive conduct that is protecte d by the First Amendment. See Int’l Franchise Ass’n, 803 F.3d at 408. Like a law tha t prohibits employer s from discrimina ting on account of rac e, which requir es removal of signs and adverti sements saying “White Applicants Only,” the inciden tal sp eech requi remen t here “hardl y mean s that the law should be analyzed as one re gulating the employer’s speech rath er th an condu ct.” Rumsfeld, 547 U.S. at 62; see also Olympus Spa, 138 F.4th at 1216 (holding that a law that prevented a spa from denying admission t o transgende r women, which required the spa to change its conflic ting admissions policy, did not trigger First A mendment discus sed in P art II.B of this opinion, even a ssuming t hat t he Ordi nance regulates commercial speech, it s atisfies the applicable level of scrutiny.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 19 scrutiny). Instead, the Ordinance is like any well -established anti - discrimination or wor kplace safety law: it requ ires private companies to conf o rm the ir internal policies to minimum standa rds and to communicate those policies. The Ordinance thus ensures that P laint iffs ar e unable to carr y out an unlawful course of conduct by creating and disseminating illegal de activation p olicies. Rumsfeld, 547 U.S. at 62. “When ‘the only inevitable effect, and the stated purpose’ of a statute is to regulate nonexpressive conduct, our inquiry is essenti ally co mplete. ” B & L Prods., 104 F.4th at 116 (quoting HomeAway.com, 918 F.3d at 685). The Ordinance governs nonexpressive conduct. Any burden on speech is incidenta l. B. Commer cial S peech In the a lternative, Seattl e argues that, if th e Ord inance regulat es spee ch, then i t is co mmercial speech s ubject to lower scrutiny under the First Amendment. Plaintiffs insist that the regulated speech is pure speech a bout con troversial issues and not commerci al sp eech. We agre e with S eattl e that e ven if the Ordinance regulat es spee ch, it i s speech t hat “ simply propose[s] a commerci al tr ansactio n.” 7 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 760 (1976) (quoting Bi gelow v. Virginia, 421 U.S. 809, 822 (1975)). We have alre ady held that speech related to hiring people who “perfor m tempo rary wo rk” is commerci al spe ech. Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 817 –18 (9th Ci r. 2013); s ee also Pittsburgh Press Co. v. Pittsburgh Comm ’ n on 7 For purpos es of t his s ection of the opi nion, we assum e, withou t deciding, that Plaintiffs are corr ect in their assertion th at the Ordin ance regulates speech.

20 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Hum. Rel s., 413 U.S. 376, 387 –88 (1973) (hol ding that employ ment adv ertise ments are com merci al sp eech); Greater Phila. Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 137 (3d Cir. 2020) (holding that speech involving a “proposal of possible employment” is commercial speech). Our precedents establishing that hiring communications can be co mmer cial spee ch cover t he purported speech at issue h ere. Th at speech is communi cation by Uber or Instaca rt to tempor ary app - based w orkers a bout th e proposed terms of engagement, including the standards for deactivation or termination of those wor kers’ accounts. The Ordinance’s challenged provisions regulat e how a nd whe n a platform may prevent a worker from accessing its servi ce to seek employment. Whatever speech might be regulated by the Ordi nance is directly related to employment, however tempor ary. Plaintiffs invoke two rece nt decisions by this court to argue that the Ordinance should be subject to g reat er scrutiny than that applied to commercial speech. S ee NetChoice, LLC v. Bonta, 113 F.4th 1101, 111 1, 1121 (9th Cir. 2024); X Corp., 116 F.4th at 894, 898. Both cases involved state laws that regulated the speech of social m edia companies by requiring that they submit reports to the government that identified harmful speech and described what the companies were doing to addr ess the problem. That requirement distinguishes these cases from the o ne before us. In both N etCho ice an d X Corp., we held that the re ports were not co mmerci al s peech subj ect to i ntermed iate scrutiny, but instead were compelle d speech subje ct to strict scrutiny, because they required businesses to provide their own conclusions about “highly controversia l issues of public concern. ” N etCho ice, 113 F.4th at 1120; see X Corp., 116 F.4th at 901–03. We noted that these report s required

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 21 businesses to go beyond “opining about their products or services,” NetC hoice, 113 F.4th at 1120, an d inst ead communica te their “opinions about and reasons for those policies, ” X Corp., 116 F.4th at 901 (emphasis added). Here, the Ord inan ce regulates Pla intiffs’ deactiv ation policies and requires co mmunication of the polic ies to the workers subject to them. Unlike th e social med ia compani es — which were required to speak on topics “discon nected from any econom ic trans actio n” li ke hate speech, online harassment, and content harmful t o child ren, NetCh oice, 113 F.4th at 1 119 — Plaintiffs are no t su bject to a directive to produce a report. Instead, they must m odify their deactivat ion policie s, if necessary to comply with the Ordina nce, an d com mun icate th ose policie s to their app - based work ers. The reporting requirement differs in another ke y area. Under both laws at issue in NetC hoice and X Corp, social media companies were required to produce communications for an outside party: the government. Here, the O rdinance applies only to internal communica tions between a company and its app - based work ers. It is a m odern version of established workplace disclosure laws — it makes no differen ce whether s uch a di sclosure occurs on bulletin boards, via distribution of employee handbooks, or in an online portal that only app - based work ers may a ccess. S ee CompassCare v. Hochul, 125 F.4th 49, 65 (2d Cir. 2025) (“[S]uch notice requirements are pa rt of ‘a longstanding tradition in this country’ supported by a ‘historical warrant.’” (quoting Brown v. Ent. Merch s. Ass’n, 564 U.S. 786, 795, 792 (2011))). Assuming that the Ordinance does regulate c omm ercial speech, we conclude that the Ordinance sati sfies the

22 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE attending, lower level of scrutiny. Commercial speech is still subject to constitutional protections. We determine wh at protect ion th at speech r eceives dep ending on whether the government is restricting or compelling speec h. 8 Am. Beverag e Ass ’ n v. City & C ounty of San Francisco, 916 F.3d 749, 755 (9th Cir. 2019) (en banc). Under our precedent, we apply one o f two se parate Supreme Court tests to laws regulat ing co mme rcial s peech. CTIA - The Wireless Ass ’ n v. City o f Berkeley, 928 F.3d 832, 842 (9th Cir. 2019). When the government restricts or prohibits commercial speech, we apply the test establishe d in Cent ral Hudson Gas & Elec tric C orp. v. Pub lic Ser vice Comm issio n of New York, 447 U.S. 557, 56 6 (198 0). When the gov ernment co mpels dis closure o f commerci al sp eech, we apply t he standa rd from Zauderer v. Off ice of Disciplinary Counsel of the Su pr eme Court of Ohio, 471 U.S. 626, 651 (1985). Here, because the Ordinance regulates deactivation standards and requires companies to commun icate thos e standards to their workers, the appropri ate t est is t he one arti culated in Zauderer. Subs ection 8.40.050.A.1 — which requires network companies to inform app - based workers of the ir d eactivation polic ies — meet s the t es t drawn from Zaud erer. “[T]he government may compel truthful disclosure in com mercial speech as long as the compelled disclosure i s reasonably related to a substantial government al interest and involves purely factual and uncontrover sial information that relates to 8 During ora l argume nt, both Plaintiffs requested that we resolve the case before us on the meri ts rat her than rema nd to the district court. The record i s suffi ciently d evelope d for us to deci de how t he law applie s, so we do. See X Corp., 116 F.4th at 898 (rejecting the district co urt’s applica tion of Z auderer a nd ins tead appl ying stri ct scrut iny).

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 23 the service or product provided.” CT IA, 928 F.3d at 842 (citation mo dified). Addit ionally, if such compelled disclosure is “unjustified or unduly bu rdensome, ” it might not pass constitutional muster. Zauderer, 471 U.S. at 651. “There is no question that protecting the health and safety of [workers] is a substantial government al interest.” CTIA, 928 F.3d at 845. The provision requires ne twork companies to inform workers of what situations may lead t o account d eactiv ation and resulting lost income, which is reasonabl y rel ated t o Se attle’s goals. T he no tice i s purel y factual and concerns only the se rvice provided, because it contains details of a company’s deactivation policies. Because t he discl osure does not “force [Pl ainti ffs] to t ake sides in a heated political controversy,” id. at 848, or purport to compel speech on — or analogous to — mat ters we have previously identified to be controversial, see, e.g., i d. at 845 (noting abortion as a matter of controvers y), it is noncontroversial. 9 Furthe r, t he no tice requi remen t can be 9 The partial d issent assert s that the content of ne twork c ompani es’ deactiva tion policies is not purel y fact ual and unc ontro versi al becaus e the Ordinance “require s more than a mer e n otice of rights ”; th e partial dissent claims that it also requ ires Plaintiffs to “ publish t heir opinions on what behavi ors or st andards are reas onably relat ed to safe ty or to efficiency.” Pa rtial Dissent at 40. We are u npersua ded b y this characterization. F or one thing, once a dea ctivati on polic y i s iss ued, it will be “litera lly true. ” Whethe r or not t he netwo rk compa ny iss uing the deactiva tion policy would ha ve devi se d its poli cy differe ntly had the City enacted di fferent labor re gulat ions, or n o regulat ions at all, the policy will truthf ully and accurately identify th e conduct of app - based wor kers that cou ld lead to deac tivation. T he policy will ref lect facts. CTIA, 928 F.3d at 84 7. More broa dly, as we recently observed, “a p urely factual statement does not bec ome cont roversia l simpl y because it ‘can be t ied in some way to a controversial issue.’” Foothil ls C hristian M inist ries v. Johnson, 148 F.4th 1040, 105 4 (9th C ir. 202 5) (quotin g CTIA, 928 F.3d at 84 5),

24 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE satisfied by a single webpage and is therefore not unduly burdensome. Subs ection 8.40.050.A.2 — which requires that the deactivat ion po licies be “ reas onab ly rel ated ” to the compani es’ “ saf e and e fficient operat ions ”— regu lates at most speech r elated to wh at Seatt le has d esig nated as unlawful activity: the unwarranted deactivations of work er accounts. Any challenge involving the restriction of commerc ial speech must firs t satisfy a threshold inquiry that the communication be “ neither mislea ding nor related to unlawfu l activity. ” World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010) (quo ting Ce nt. Hudson, 447 U.S. at 56 4). Even i f we a ccept Pl ainti ffs’ petition fo r cert. filed, No. 25 - 802 (U.S. Jan. 5, 2026). That obse rvation applies here. The recogniti on that the concepts of safety and efficiency could gene rate diff ering view s among various stake holders in the cont ext of devisi ng deact ivation polici es, see Partial Dissent a t 40, is in sufficient to render t he req uired di sclosur e of the deact ivatio n polici es controve rsial. See id. (“[A] compelle d statement is co ntrov ersial when it takes ‘sides in a heated politic al controversy,’ and forces the s peaker ‘to convey a message fundament ally a t odds wit h its mi ssion. ’” (quoti ng CTIA, 928 F.3d at 84 5)). It also bears emphasis that, if a net work compa n y disagree s with th e Ordinance’s examples of policies that are not reasonabl y r elated to safe and efficient ope rati ons, th e company may elect to express its disagreement, eve n alongs ide the po licy itself. This matters because the abilit y to regis ter one ’s disa greement, eve n whil e complyi ng wit h the Ordinance, dispels any “force d assoc iation ” between the discloser (the network com pany) and th e discl osure (the Ordinanc e - compliant deactiva tion policy), the reby unde rmining any sugges tion of compulsi on. S ee Ph arm. Rsch. & Mfrs. of Am. v. Stolfi, 153 F.4th 795, 812 (9th Ci r. 2025) (quoting Pha rm. Care M gmt. A ss’n v. Rowe, 429 F.3d 294, 316 (1s t Cir. 2005)), petition fo r cert. filed, No. 25 - 1018 (U. S. Feb. 24, 2026).

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 25 content ion th at the Ord inance regul ates com merci al speech, it is not an impermis sible regula tion of that speech. 10 Plaintiffs have not demonstrate d that the Ordinance violates the First Ame ndment. III. V aguen ess clai m A munici pal ord inan ce violates the Fourteenth Amendmen t if it either f ails to provide a “ person of ordinary intelligenc e a reasonable opportunity to know what is prohibited,” or if it is so standa rdless that it may be applied in an arbitrary or discriminatory manner. V ill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982) (quoting Gra yned v. City o f Roc kford, 408 U.S. 104, 108– 09 (1972)). Plaintiffs ma ke much of th e fact that “ law [s] interfer e[ing] with the righ t of free sp eech ” ar e s ubject t o a 10 The partial d issent faults us for conflating th e two tests for commercia l speech. Partial Dissent at 41. Specif ically, it ob serves that the th reshold inquiry of whet her the pur porte d speech rel ates t o unlaw ful act ivity i s an element of the Central Hudson test for regulation of comme rcial speech, not the Z auderer test for c ompulsion of c ommercia l spe ech. Partial Dissent at 41. The threshold inquiry i s inde ed an el ement of Central Hudson, a nd we d o not purport to impo rt it i nto Zau derer. Rather, in consider ing Plaintiffs’ assertion tha t Centr al Hu dson appli es, we conclude that the ir argumen t falters at Central Huds on ’s doorst ep. This matters because we have already observed that Zauderer sets fo rth a “more permissive standard” than that articulated in Ce ntral Huds on. See Pha rm. Rsch. & Mf rs. of A m., 153 F. 4th at 808; see a lso id. at 810 – 11 (explain ing tha t, if a “law[] that compel[s] certain in formation to b e communicated directly from one private entity t o another” regulates commercial speech, “courts apply either intermediate scrutiny,” pursuant to Central Hudson, “or a lower leve l of scrut iny akin to ra tional basis review,” pursuant to Za uderer). Plaintiffs fail to show th at the Ordinance violate s the F irst Ame ndment even unde r the more rig orous test in Centr al Hudson; a fortiori, the Ordin ance passes the more permissive standar d in Zauderer.

26 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE “stringe nt” application of tha t test. Id. at 499. As explained above, however, we reject Plaintiffs’ premise that the Ordinance restricts speech. Instead, we are guid ed by the Supreme Court’s standard for economic re gulation, which is “subject to a l ess st rict vag ueness t est. . . b ecause businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.” Id. at 498. Plaintiffs a rgue that the Ordi nance ’s de acti vation standard provision in sub section 8.40.050.A.2 is void for two reasons. First, the word “reasonable” does not supply adequate guidance to follow the law. S econd, the examples of what is not reasonabl y related t o saf ety and e ffici ency are so contradictory as to be more confusing than clarifying. We are unpersuaded by both arguments. T he term “re asonabl e” is a well - established standard that is widely employed in both statutory and common law. As the distric t court pointed out, Pla intiffs must satisfy a reasonableness inquiry to succeed on their vagueness claim. Additionally, the Ordinance’s text supplements t he term by delineat ing between wha t is and is not a permissi ble reason to deacti vat e an a ccount. See First Resort, 860 F.3d at 1274 (“ [I]mpreci se terms may avoid vagueness problems when used in combination with terms that provide su fficient clarity. ” (quoting Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010))). For exampl e, t he bar on deactivations based on customer ratings is limited by the word “solely.” Ordinance § 8.40.050.A.2.e. (“ Any policy that would result in a deactivation based solely on a quantitative metric deriv ed from aggre gate customer ra tings of an app - based wo rker ’ s p erforman ce [.] ” (em phasi s added)).

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 27 Seattl e passed t he Ord inan ce out of its concern that companies like Uber and I nstacart relied on algorithms to deactivat e accoun ts automatica lly. Its concern wa s magnifie d by the City’s belief tha t customer ratings are “highly likely” to be infl uenced by bias against worke rs of certain races an d eth nicit ies. Id. § 1.L. For those reasons, the Ordinan ce dict ates that an account deactivation may not be based “ solely ” on customer ratings. Id. § 8.40.050.A.2.e. Deactivat ion b ased on m ore th an that — f or instan ce, including review of comments that accomp any custom er ratings— is not prohibited. Plaintiffs may be right that a person of ordinary intelligence could “ reasonably think [that q uantitative metrics ] relat e to safet y and ef ficien cy,” but that sa me pers on could also understand, once the concern for discrimination was identified, that deactivation based sole ly on customer ratings is unreasonable. We also note that the services covered by the O rdinan ce and at is sue here are d elivery services, not ridesh aring. An Ub er ridesha re pas seng er has an obvi ous basi s to ev alu ate the s afety of a ride; th e re cipient of a delivery by Uber Eats does not. Because of this distinction, Seattle may have thought it wise to designate custom er rating s as a less reliabl e indicat or to as sess safet y and effici ency i n the cont ext of d elivery s ervices. Regardl ess of the policy considerations the City took into account when enacting the Ordinance, in the context of a vagueness challenge, what matters is not whether a person of ordinary intelligence would agree with the content of or motivations for a law, but ra ther whether they would understand its dictat es. Here, giv en th e clari ty affo rded to t he w ord “reasonable” when that word is read within the context of neighboring text and provisions in the Ordinance, w e conclude that they would.

28 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE Plaintiffs’ argument s t hat the o ther exam ples are more confusing than clarifying fare no better. Ther e are multiple throughlines of policies in the list of examples. One of them is safet y. The bar on deactivations base d on background check s cre ates a carveou t for reports that r aise ev idence o f “ egregious misconduct, ” id. § 8.40.050.A.2.h, or any “action or behavior” that involves physical, economic, or emotional harm, id. § 8.40.020. So, too, with the bar on deactivations related t o driving records: the Ordinance contains a carveout for unsafe behavior, id. § 8.40.050.A.2.h, as defined by mo re than three “ moving violat ions or at - fault collisions” in less than three years, id. § 8.40.020. T hese limitations help to make clear what is and is not permitted under the law. The Ordinance provides fair notice to a person of ordinary intelligence as to what grounds for de activation are reasonabl y rel ated to s afety an d efficien cy. P laint iffs may disagree with standards impos ed by the Ordinance or may wish for mo re unfetter ed discretion in te rminat ing a worker or deactivating an account, but that does not make the regulation vague. IV. Conclusion The Supreme Court has said, “ [P] la intiff [s] seeking a prelimina ry injunction must e stablish that [they are ] likely to succeed on the merit s, that [they are ] likely to suffer irrepar able ha rm in t he absence of p reli minary r elief, that t he balance of equities tips in [the ir ] favor, and that an injunction is in the public interest. ” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). T he fi rst fact or is “the most important.” Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (quoting Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). If a movant cannot show a likelihood of success on the merits, then a court “need not

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 29 consider the other factors.” Id. (quoting Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017)). The Ordinance regulates the conduct of deactivating worker accounts, not speech. But eve n if we ac cept Plaintiffs’ contention tha t the Ordi nance r egulat es s peech, it is commercial speech, and t he Ordinance overcomes the appropri ate lev el of scrutiny under the First Amendment. Plaintiffs also fail to show that the law is unc onstitutionally vague. B ecause P laintiffs are unlikely to succeed on the merits of th eir claim, the distric t court did not abu se its discretion when it denied the preliminary injunction. By affirming the authority of Seattl e to enact and enforce the Ordinance, we do not express a view on the merits of the policy. Seattle has decided to enact the Ordinance, and the policy judgment s reflected i n the Ord inance ar e the City’s. Plaintiffs are not required to agree with this or any other regulation but remain su bject to th em. AFFIRM ED.

30 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE APPENDIX Seattle, Wash., Ordinance 126878, § 8.40.050 (Aug. 14, 2023) 11 8.40.050 Deactivation requirements A. A network company shall adopt the following measures prior to deactivating an app- based work er, except as provided in subsections 8.40.050.C and 8.40.050.D: 1. Fair notice of deactivation policy. A network company must inform the app - based worker in writing of the network company’s deactivation policy, defin ing what constitutes a violation tha t may result in dea ctivation. The network company’s written deactivation policy must be specific enough for an app - based worker to understand what constitutes a violation and how to avoid v iolating the policy. The deactivation policy must be available to the app - based worker in English and any language that the network com pany knows or h as reason to know is the primary language of the app - based worker. The deactivation policy must be access ible to the ap p - based worker at l east t hree years af ter de activat ion. The Directo r may issue r ules governing the form and description o f the deactivation policy, the manner of its distribution, and required languages for its tra nslation. 2. Reasonable policy. The policy that may lead to a deactivation must be reasona bly related to the network 11 Ordinance 126878, Off. of the City Clerk, https: //cle rk.seatt le.gov/s earch/ordi nances/12 6878 (l ast visited Oc t. 29, 2025).

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 31 company’s safe and efficient operations. Examples of policies that are not reasonably related to the network company’s safe and efficient operations include, but are not limited to: a. Any rule or policy that would result in a deactivation based on an app - based worker’s availability to work or number of hours worked, consistent with subsection 8.37.080.A.1; b. Any policy that would result in a deactivation based on an app - based worker’s acceptance or rejection of any individual offer, any types of offers, or any number or proportion of offer s, consistent with subsection 8.37.080.A.2; c. Any policy that would result in a deactivation based on an app - ba sed worker’s cancellation of an offer with cause, consistent with subsection 8.37.080.C; d. Any policy that would result in a deactivation based on an app - based worker contacting the network company; e. Any policy that would result in a deactivation based solely on a quantitative metric derived from aggregate customer ratings of an app - based wo rker’s performan ce; f. Any policy that would result in a deactivation based on statements by an app - ba sed worker regarding compensation and/or working conditions

32 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE made to customers, other app - based work ers, network companies, the media, public officials, and/or the public; g. Any policy that would result in a deactivation based on an app - ba sed worker asserting their legal rights, whether in court or via proc edures provided by any l ocal, st ate, or federal agency; and h. Any policy that would deactivate a worker based on the results of a background chec k, consumer report, driver record, or record of traffic infractions, except in cases of egregious misconduct or where required by other applicable law. 3. Investigation. A network company must conduct a fair and objective investigation prior to deactivating an app- based worker. The investigation must be suf ficiently thorough to justify the deactivation and demonstrate an unbiased and neutral view of facts co llected. If the app - based worker does not participate in the investigation o r provide relevant information, the network company may c omplete the investigation based on available sources of information. 4. Confirmation of violation. The network c ompany must demonstrate by a preponderance of the evidence that the alleged violation of the network company’s policy or rule occurred. 5. Consistent application. The network c ompany must apply the rule or policy, a nd penalty for violations, in a consistent manner.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 33 6. Proportionate penalty. The penalty of deactivation must be reasonably related to the offense, and account for miti gating circums tances, such as the app - bas ed worke r’s past work history with the network company. B. Deactivat ion of an ap p - based worker will be considered unwarranted if the action is int ended to or results in discrimina tion or a disc riminatory act. C. Subject to the provisions of this Section 8.40.050 and rules issued by the Director, a network company may immed iately d eactivat e an app - b ased wo rker if su ch acti on is required to comply with any applicable court order or local, s tate, o r federal l aws or r egulations, or where an app - based worker has engaged in egregious misconduct. D. In the case of allegations of egregious misconduct, the network company m ay deact ivate t he app - based worker before completing an investigation. Except in extr aordinary circumstances, the investigation shall not take longer than 14 days. If the investigation is delayed du e to extraordinary circumstances, the network company must provid e the app - based worker with written notice that the investigation is delayed, the reason(s) for the dela y, and the date on which the comple tion of the inve stigation is an ticipa ted.

34 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE BENNETT, Circuit Judge, dissenting in part: I agree with the Majority that the Ordinance is not unconstitutionally vague. Unlike the majority, however, I believe t he Ord inan ce co mpels s peech an d is thus subj ect to the Fir st Amendment. While I agree with the major ity’s alterna tive reasoning that th e spee ch at i ssue i s com mercial speech and subje ct to i ntermed iate scrut iny, I believ e Plaintiffs have raised serious questions going to t he merits. Here, the district court f ound that the Ordinance had no F irst Amendmen t implications, 1 and I b eliev e that t o be error. I would therefore vacate and remand to have the district court redo its analysis on the merits and reexamine the Winter factors 2 in light of a determin ation t hat the O rdin ance is subject to intermediate scrutiny, and in light of the current facts. Thus, I respectfully dissent, in part. i. Th e Or dinance co mpels s peech. The majority concludes that the Ordinance “ regulates conduct, not speech,” and that “the conduct that draws the remedy is the unwarra nted deactivation of worker accounts,” Maj. O p. at 12. The Ordinance does regulate conduct by prohibiting unwarranted deactivations. Ordinanc e § 8.40.060.A.1. But it also compels spee ch, and that regulation of speech also draws a remedy. The Ordinance requires plaintiffs to draft and provide wor kers a wr itten 1 “The sta rting point of the C ourt’s anal ysis i s whet her the Ordina nce present s a rest riction on s peech. The C ourt fi nds tha t the Ordinanc e does not, an d that the F irst A mendment claim is unlikel y to suc ceed on t he merits.” 2 Becaus e the dis trict c ourt found that the O rdinance had no Fi rst Amendment implic ations, its analysi s of the other W inter factors was cursory.

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 35 “deactivation policy, defining what constitutes a violation that may r esult in deactivation,” id. § 8.40.050.A.1, and which “must be reasonably related to the ne twork company’s safe and effici ent oper atio ns,” id. § 8.40.050.A.2. The drafting and publication of suc h a policy is spee ch. 3 In a recent c ase, we sp ecifi cally no ted that the publi cation o f “existing [terms of service ] and content moderation policies may be commercial speech,” if not pure compelled speech subject to even more rigorous scrutiny. See X Corp. v. Bonta, 116 F.4th 888, 901 (9th Cir. 2024). And the Supreme Court has held that “the c reation and dissemination of information are speech within the meaning of the First Amendment.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 570 (2011). Indeed, “[i]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what doe s fall within that cate gory.” Bartnicki v. Vopper, 532 U.S. 514, 527 (2011) (quoting Bartnicki v. Vo pper, 200 F.3d 109, 120 (3d Cir. 1999)). Because it is “well - established that the forced disclosure of information, even purely c ommercial information, tr iggers First Amendme nt scrutiny,” NetChoice, LLC v. Bonta, 113 F.4th 1101, 1117 (9th Cir. 2024), the Ordina nce’s deactivation policy 3 Contrary to the majority, I bel ieve the present case is unlike O’Brie n and City o f Everett — it concerns spe ech its elf, not expre ssive conduct. The drafti ng of a poli cy text, making trade - offs bet ween co mpeting and controve rsial values, a nd proclai ming that c ertain i nternal reg ulati ons are or are not “reasonably related to safety and efficiency,” are orders of magnitude more e xpress ive than simply “ wearin g bikini s whil e working.” Edge v. Cit y of Everett, 929 F.3d 657, 662 (9th C ir. 2019). And the O’Brien C ourt declin ed to hol d that ex pressive conduct, such a s the burni ng of a draft card, is out side t he scope of the Firs t Amendme nt. United S tates v. O’Brien, 391 U.S. 367, 376 (1968).

36 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE requirem ent comp els s peech sub ject to t he First Amendment. To some extent, the majority acknowledge s that sections 8.40.050.A.1– 2 of the Ordinance not only regulate conduct but also compel speech. The majority appears to conce de “[t]he fac t that the Ordinance, in Plaintiffs’ words, necessa rily ‘co mpel [s] an d di ctate[s] the content of a w ritten communication.” See Maj. Op. at 1 6. However, the majority finds that “this reading ignores the placement of these provisions ‘in the conte xt of the Ordinance as a whole,’” and that “[t]o read these pr ovisions independently from the Ordinance would be to orphan them from their purpose: preventing unwarranted deactivations.” Id. at 1 5 (quoting Yim v. City of S eattle, 63 F.4th 783, 792 (9th Cir. 2023)). The majority therefore concludes that these “[c]omp elled ch anges in co nduct — which might incidentally compel ch anges in speech — are not r eviewed as co ntent - based speech restrictions.” Id. at 1 8 (quoting Oly mpus Spa v. Armstrong, 138 F.4th 1204, 1216 (9th Cir. 2025)). I disagree with this conclusion for three reasons. First, the Ordinance’s compulsion of speech is not incidental to its prohibition on unwa rranted deactivations. The prohibition on unwarranted de activations and the requirement to promulgate a deactivation policy of a certain kind are distinct and separately enforceable. See Ordinance § 8.40.140 (“The failure of any respondent to co mply with any requirement imposed on the respondent under this Chapter 8.40 is a violation.”); id. § 8.40.170.E (empowering the Director of the O ffice of Labor Standards to “ass ess fines for a violation of this Chapter” including under § 8.40.050). In fact, wh ile the Offi ce of Labo r Stan dards has been empowered sin ce Janu ary 1, 2025, to “administer and enforce” the deactivation policy require ment, the Office is

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 37 prohibited from enfor cing the prohibition on unwarranted deactivations until June 1, 2027. Id. §§ 8.40.130.A, B. Thus, for the twenty - nine months following e nactment, including now, the Ordinance empowers the Office to assess fines only for violations of the speech regulation, and not for violations of the conduct regulation. 4 And we h ave held that we cannot “igno re th at the [chal leng ed] re quirem ent compels speech simply because other parts of the [challenged law] may primarily or exclusively re gulate non - expressive conduct.” NetChoice, 113 F.4th at 11 17. 5 That is becaus e the gov ern ment “cann ot ins ulate a s pecific provision of law from a facial challenge under the First Amendment by bundling it with other, se parate provisions that do not implic ate the F irst Amendme nt.” Id. Second, by concluding based on the Or dinance’s “purpose” that the speech regulation is incidental to the conduct regulation, the majority, I believe, applies the wrong test. We consi der a law’s “stated purp ose” wh en determining whether the conduct that the law regulate s is 4 I am unconvi nced b y the maj ority’s a rgument t hat “thi s del ay suggest s only that the C ity cares more a bout encoura ging complian ce with t he subst ance of the new Ordi nance than about punishi ng viol ators.” Maj. Op. 1 6 n. 5. First, it does not matter whether Seattle cares more about encoura ging compli ance or punishing vi olators. Nor doe s it mat ter whether Seattle cares more ab out preventing unwarranted deactivati ons or promoti ng trans parenc y. The Ordina nce aims a t both, a nd does not compel speech only inci dental ly to it s regulat ion of co nduct. 5 Seattle argues that NetChoi ce is dis tinguis hable on this poi nt bec ause, in that c ase, we found the reg ulati on was s ubject to t he First Amendme nt because the regulated speech was “disconnected from any econom ic transaction.” NetCh oice, 113 F.4th at 1119. But S eattle misreads NetCho ice. The absence of a connect ion to an e conomic t ra nsacti on is the reason we applied strict scrutiny in NetCho ice — it is no t the reason we found t he stat ute to re gulat e speech. Id. at 1119 – 21.

38 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE sufficie ntly expressive to fall within the pur view of the F irst Amendment. HomeAway.com, Inc. v. City of Sant a Monica, 918 F.3d 676, 685 (9th Cir. 2019) (quoting Sorrell, 564 U.S. at 565). That test is inapplicable here because the Ordinance’s speech regulation is separate from its conduct regulation, and we ca n consider the statutory purpose only if the law reg ulat es condu ct rat her than sp eech. Third, the Ordinance’s “stated purpose” is more ambiguous than the majority says. Quoting from the Ordinance’s findings and declarations, the majority identifies the Ordinance’s purpose as to “protect[] and promote[] public health, safety, and welfare by establish ing protections against unwarranted deactivations for a pp- based workers. ” Maj. Op. at 10, 1 4 (quoting Ordinanc e § 1.C). The majority concludes that the purpose of the Ordinance is to prevent unwarranted deactivations and not to compel speech. B ut the s ame s ectio n of the O rdinan ce als o refle cts a purpose to compel plaintiffs’ publication of deac tivation policies, separate from the prevention of any d eactivation decisions. See id. § 1.H (“App - based workers often do not have the information they need to know about ho w they will be evaluated.”). At least one pur pose of the Ordinance is, therefore, to compel plaintiffs to share inf ormation about how app - based wor kers wi ll be ev aluated. Because disclosure of such information is speec h subject to Fir st Amendment scrutiny, Sorrell, 564 U.S. at 570; NetChoi ce, 113 F.4th at 117; X Corp., 116 F.4th at 901, the Or dinance’s stated purpose was, in part, to compel speech. 6 6 The majorit y wrongly c onten ds that my reading “is olates a smal l part of the law, and, i n doing so, miss es the c entral purpos e ani mating the Ordinance.” Maj. Op. 14 n.4. The Ordi nance a ims not only a t decrea sing unwarrante d deact ivatio ns, bu t als o at incre asing transpare ncy. I do n ot

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 39 I therefore disagree with the majority’s conc lusion that the Ordinance does not regulate speech. ii. Plaintiffs raise se rious questions o n the merits. I agree with the majority 1) that t he spee ch at i ssue is commerci al spe ech, an d 2) that the so - called Zauderer standard applies to the commercial speech compell ed by the Ordinance. See Zauderer v. Off. of Disciplinary Counsel, 471 U.S. 626 (1985); see also Maj. Op. a t 22–23. But I disagree with the majority’s decision to conduct the Zauderer anal ysis i n the first inst ance. Becaus e the d istri ct court concluded that the Ordinance does not compel speech, it “had no occasion to conduct a further inquiry into whether [the Ordinance], as a speec h regulation, survived First Amendment scrutiny.” Expressions Hair Design v. Schneiderman, 581 U.S. 37, 48 (2017). W e should therefore remand for the district cour t to consider “whether the law can be upheld as a valid di sclosure requirement under Zauderer.” Id. Moreover, unlike the majority, I be lieve that plaintiffs at least raise a serious question on the merits as to w hether the Ordinan ce satisfi es the Z auderer standard. “Under Zauderer as we interpret it today, the government may compel truthful discl osure in commer cial speech as long as th e comp elled disclosure is ‘reasonably related’ to a substantial governmental interest and involves ‘purely factual and uncontroversial information’ t hat rel ates t o the s ervice o r distort the Ordina nce by notin g that it compels s peech, §§ 8. 40.050.A.1 – 2, based on s epara te policy f indings, § 1.H, and t hat i t esta blishes an enforcement regime separate from the regime regulating u nwarranted terminatio ns, §§ 8.40.140, 170.E. Rather, it is the maj ority tha t imprope rly cabi ns the Ordina nce by focusi ng exclus ively on i ts se parate regulati on of conduct.

40 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE product provided.” CTIA – T he Wireles s As s’n v. City o f Berkele y, 928 F.3d 832, 842 (9th Cir. 2019) (first quoting Zauderer, 471 U.S. at 651, then quoting N at’l Inst. of Fam. & Lif e Advocs. v. Becerr a, 585 U.S. 755, 768 (2018)). The speech compelled here is not purely factual and uncontroversial information. The speech regulation requires more than a mere notice of rights — that is sep aratel y required by a distinct section of the Ordinance. See § 8.40.100. The speech re gulation instead requires plaintiffs to formulate and publish their opinions on what behaviors or standard s are reas onably related to safety or to effi ciency. These a re not pu rely fact ual determin ations but ar e inst ead plaintiffs ’ opinions. And they are likely to be controversial opinions. This is especially so because safety and efficiency are often in tension, and plaintiff s’ policies will have to balanc e these two valu es. Plaintiffs will like ly also ba lance these t wo values ag ains t others, such as customer satisfac tion, profita bility, and ad ministrability, be cause the Ordinance does not require that the policy be related solely to safety and efficiency. Any balance of these oft -competing values is likely to be cont roversial. Different stakeholders — including users, workers, employees, shareholders, and traff ic authoritie s — are bound to have different perspectives on where the be st bal ance li es. 7 Because the O rdinance 7 I do n ot agree with the major ity that this materia l is pur ely factual an d uncontrove rsial simply becaus e “once a deacti vation pol icy is i ssued, i t will be ‘liter ally true. ’” Maj. Op. 2 3 n.9. Yes, once the policy is publish ed, there will b e a “fact” as to wha t the policy says. But that is true of all spe ech. And there will remain, after pub lication, no “fact” as to the bes t balanc e of sa fety, e ffici ency, and ot her val ues, a nd no “fa ct” as to which internal reg ulations are “reasonably relat ed” to these values. Nor, contra ry to the majority’s suggest ion, could t he injur y to the companies ’ Firs t Amendme nt rights be full y ameliora ted by th e

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 41 compels c ommercial speec h that is not or at least may not be “purely factual and uncontroversial information,” it potentially v iolates the Fir st Amendment. See CTIA, 928 F.3d at 842. The major ity states tha t the speec h regulation is noneth eless perm issi ble becaus e any chal lenge t o it “must first satisfy a threshold i nquiry that the communication be ‘neither misleading nor related to unlawful ac tivity.’” Maj. Op. at 2 4 (quoting World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010)). Th e majority finds that the speech regulation “regulates at most speech related t o ... unla wful activity: the unwarranted deactivations of worker acc ounts.” Id. The majority con cludes that pla intiffs’ c hallenge th us fails this “th reshold inquiry.” See id. But t he majority’s thre shold inquiry does not apply to challenges to c ompelled speech — it governs only challenges to restrictions on speech. See World Wide Rush, 606 F.3d at 684 – 85. And, in any case, the speech here is unrelated to (or not solely related to) unlawful activity. The majority’s “threshold inquiry” is taken from World Wide Rush, a case involving a challenge to a restriction on speech, not to a compulsion of speech. See World Wide Rush, 606 F.3d at 680, 685. World Wide Rush, in t urn, derive d this test from Metro Lights, L.L.C. v. City of Los Angeles, which was also a speech restriction case. 551 F.3d 898 900, 903 (9th Cir. 2 009). And Metro Lights identifies this “thresho ld matt er” as an elem ent of th e Central Hudson test, not the Zauderer test. See Metro Lights, 551 F.3d at company’s abili ty “to e xpre ss it s disagr eement, eve n al ongside th e policy itself.” Id. The Ordinance requires the companies to make and publish th eir judgment about what is “reasona bly relate d.” §§ 8.40.0 50.A.1 – 2.

42 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 903– 04 (describing the requirement that “the communication [be] neither misleading nor r elated to unlawfu l activi ty” as an “el ement[] of the Centra l Hudson test” (c iting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980))). Beca use, as even the majority acknowledges, Maj. Op. at 2 5 n.10, th e Central Hudson test is not ap plicable to this case, plaintiffs n eed not show that their speech is unrelated to unlawful activity. This distinction matters bec ause, even though Zauderer ’s ratio nal basi s stand ard is “mo re permis siv e” than Central Hudson ’s intermediate sc rutiny standard, see Pharm. Rsch. & Mfrs. of Am. v. Stolfi, p etition for cer t. filed, No. 25 - 1018 (U.S. Feb. 24, 2026), 153 F.4th 795, 808 (9th Cir. 2025), “one size does not fit all in commercial speech cases,” CTIA, 928 F.3d at 842. The two tests have different triggering conditions, see id., and a regulation that survives Central Hudson revi ew is t herefore not guaran teed to survive Zauderer review. In any e vent, the majority is wrong to conclude that the speech is related to unlawful ac tivity. The majority concludes that by requiring that dea ctivation policies be reasonabl y rel ated t o safe and e fficient opera tion s, the Ordinance simply regulates speech related to unlawful activity — namely, speech related to unwar ra nted deactivations. I be lieve that this conclusion is both circular and incorrect. The Ordinance defines “un warranted deactivation” as “a deactivation that does not co mply with Sectio n 8.4 0.050.” Ordinance § 8.40.020. But § 8.40.050 does not contain any freestanding limits on when deactivation is prohibited. In othe r words, it does not proscribe the firing of an app - worker for a reas on unrelat ed to safe and eff icient operations. Instead, it prohibits only certain forms of de activation policy and describes when a

U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE 43 policy wou ld fail to be reaso nabl y related t o saf e and efficient operations. Id. §§ 8.40.050.A.1– 2. It then prohibits companies from deactivating a worker without the results of an investigation finding that the worke r violated the company’s deactivation policy. Id. §§ 8.40.050.A.3.1– 5. In other words, it is not u nlawful to deactiv ate wo rkers for reasons u nrelat ed to s afe an d effici ent op erat ions. It is unlawful to speak a policy that is unrelated to s afe and efficient operations; and it is unlawful for a company to violate its own deactivation policy. Thus, this is not a regulation of speech related to unla wful activity, but a d irect regulation of speech itself. I think it is far from cle ar that Seattle is likely to prevail on the mer its. At the ver y least, I believe tha t plaintiffs ha ve raised serious questions going to the merits. iii. W e should r emand for the district court to r eanalyze the Or dinance under int ermediate scrutiny and to r eexamine t he other Wi n t e r factors. In addition to likelihood of success on the merits, a district co urt conside ring a motion fo r a pr eliminary injunction must consider whether the movant will likely suffer irreparable harm without the injunction, whether the balance o f the equit ies fav ors t he movant, and whether a prelimina ry injunction is in th e public inte rest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “It is well - established tha t the first fa ctor is esp ecially impor tant when a plaintif f alleges a cons titutional viol ation and injury.” Baird v. Bonta, 8 1 F.4th 1036, 1041 (9th C ir. 2023). A deter mination a plaintiff alle ging such an injury is likely to prevail on the merits “usually demonstrates he is suffering irreparable harm” and “tips the public interest sharply in hi s favor.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th Cir. 2023).

44 U BER T ECHNOLOGIES, I NC. V. C ITY OF S EATTLE “As a gen eral matt er, dis tri ct courts ‘ must consider’ all four Winter factors. ” Id. at 1040 (quoting Vivid Ent., LLC v. Fielding, 774 F.3d 566, 577 (9th Cir. 2014)). But because the first f actor is most importa nt, if a mova nt fails to show likelihood of success on the merits, “the court need not consider the other factors in the absence of ‘serious questions going to the merits.’” Disney Enterps, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting All. for the W ild Rockies v. Cottrell, 632 F.3d 1127, 1134 – 35 (9th Cir. 2011)). Plaintiffs have at least raised a serious qu estion going to the merits. In my view, ther efore, the district court must consider all four Win ter factors. Baird, 81 F.4th at 1041. And I believe that the district cour t must decide in the fir st instance whether the Ordinance survives Zauderer rev iew. Expressions Hair De sign, 581 U.S. at 48. Here, its review of the other three factors was cursory, dividing only four sentences between them. Further, the district court’s analysi s of th ese three f actor s was based on what I believ e was its erroneous analysis of questions going to the merits. Moreover, since the district court’s decision, plaintiffs have issued deactivation policies in light of the Ordinance. The district court has had no opportunity to consider how the issuan ce of t hese po lici es, and Seat tle’s respon se or lack thereof, h as aff ected t he equi ties or the exis tence of irrepar able ha rm. Accordingly, I would remand for reconsideration of all four Winter factors. I therefore respectfully dissent, in part.