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 The TLC originally enacted these bans because, as the record reflects, passengers find in-ride advertisements— particularly, as relevant here, video advertisements—extremely annoying.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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under Central Hudson, courts ask whether (1) the expression is protected 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, 100 S.Ct. 2343. 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,
Accordingly, we
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 (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).
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
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, 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).
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").
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
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 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.
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. 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.
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 "nearmute" 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.
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 (Abrams, J.) granted summary judgment for Vugo.
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 inferences in its favor." Costello v. City of 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, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011); United States v. Caronia, 703 F.3d 149, 164 (2d Cir. 2012).
The challenged rules affect only commercial advertising.
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.
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, 109 S.Ct. 3028, 106 L.Ed.2d 388 (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, 131 S.Ct. 2653. 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 the outcome was the same whether that standard or "a stricter form of judicial scrutiny [was] applied." Id. at 571, 131 S.Ct. 2653. And the Supreme Court subsequently has suggested that commercial speech restrictions remain "subject to the relaxed scrutiny outlined in
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 Service, 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 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. Insley, 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.
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.
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, 100 S.Ct. 2343; 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.
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, 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.
"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, 106 S.Ct. 2968, 92 L.Ed.2d 266 (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, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)). That is, the fit need not be "perfect," but simply "reasonable." Discovery Network, 507 U.S. at 416 n.12, 113 S.Ct. 1505 (quoting Fox, 492 U.S. at 480, 109 S.Ct. 3028). 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, 109 S.Ct. 3028 (internal citations and quotation marks omitted).
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, 113 S.Ct. 1792, 123 L.Ed.2d 543 (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, 121 S.Ct. 2404, 150 L.Ed.2d 532 (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 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.
Next, we must consider whether the City's prohibition on advertising in taxicabs and FHVs adequately alleviates
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.
The exception for Taxi TV does not render the ban ineffective. This case is unlike
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, 113 S.Ct. 1505 (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, 103 S.Ct. 2875, 77 L.Ed.2d 469 (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 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.
Vugo next argues that the ban is unconstitutional because the justification
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 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, 113 S.Ct. 1505; see also id. at 428, 113 S.Ct. 1505 ("[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, 113 S.Ct. 1505 (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 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, 104 S.Ct. 2118). 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
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 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 exception to Cincinnati's newsrack ban both reflected bias against commercial speech and rendered the ban ineffective. 507 U.S. at 419, 113 S.Ct. 1505 (the city "seriously underestimate[d] the value of commercial speech"); id. at 426, 113 S.Ct. 1505 (newspapers were "arguably the greater culprit [of blight] because of their superior number").
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, 104 S.Ct. 2118; 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 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, 104 S.Ct. 2118. 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, 101 S.Ct. 2882 (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 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, 113 S.Ct. 1505)). 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, 101 S.Ct. 2882 (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.
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, 109 S.Ct. 3028. 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, 109 S.Ct. 3028; 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, 109 S.Ct. 3028; see also id. at 481, 109 S.Ct. 3028 ("[W]e. . . provide the Legislative and Executive 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 approach to solving the problems they create is to prohibit them." 453 U.S. at 508, 101 S.Ct. 2882; see also Taxpayers for Vincent, 466 U.S. at 817, 104 S.Ct. 2118; Fox, 492 U.S. at 480-81, 109 S.Ct. 3028.
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
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 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, 104 S.Ct. 2118 (internal quotation marks omitted).
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.
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, 131 S.Ct. 2653. 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, 116 S.Ct. 1495, 134 L.Ed.2d 711 (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, 116 S.Ct. 1495 (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.").