N.Y. Law Mandating That Delivery Services Share More Customer Data with Restaurants Violates First Amendment
From today’s opinion by Judge Analisa Torres (S.D.N.Y.) in Doordash, Inc. v. City of New York:
When a diner orders food from a restaurant using the online platform of a third-party food delivery service …, the restaurant generally receives only the individual’s first name, the first initial of her surname, and the order’s contents—the minimum information required to fulfill the order. In August 2021, in an effort to support local restaurants that use Delivery Services, … the City of New York … enacted … [t]he Customer Data Law[, which] requires that Delivery Services provide restaurants with a diner’s full name, email address, phone number, delivery address, and order contents.
The court concludes that the Customer Data Law compels commercial speech by Delivery Services, and must therefore be judged under the First Amendment intermediate scrutiny applicable to commercial speech regulations (at least ones not aimed at misleading statements):
The government can freely regulate commercial speech that concerns unlawful activity or is misleading. But where, as here, the information does not fall into those two categories, courts apply a balancing test to determine whether a commercial- speech regulation passes intermediate scrutiny. Courts inquire into (1) “whether the asserted governmental interest is substantial,” (2) “whether the regulation directly advances the governmental interest asserted,” and (3) “whether [the regulation] is not more extensive than is necessary to serve that interest.” …
To evaluate whether an interest is substantial, the Court must “evaluate the City’s asserted goal in enacting the regulation.” “When the [g]overnment defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured.” Intermediate scrutiny requires that the state “demonstrate that the harms it recites are real.”
Next, the City must demonstrate that “the speech restriction directly and materially advances the asserted governmental interest” and “will in fact alleviate [the harms identified by the City] to a material degree.” “[T]he regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose.”
“The last step of the … test complements the [prior] step, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it.” The fit need not be “perfect, but reasona
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