Uber drivers' push against Prop. 22 alerts 'repugnant to free speech'
Uber provided drivers with misleading facts about the measure that would exempt gig companies from a test reclassifying workers as employees.
A California state court judge responded to the injunctive relief requested by a class of Uber drivers who claim they fear retaliation from the company over an upcoming ballot initiative, calling it “particularly repugnant to free speech rights.”
In an order Wednesday, Judge Richard Ulmer of San Francisco County Superior Court denied the drivers’ request for a temporary restraining order, which would have required the ridesharing company to inform all California drivers that it would not use any information it had gathered about how drivers plan to vote on Proposition 22 against them.
The ballot measure would exempt ridesharing companies from the state’s test for classifying workers as employees. The Prop. 22 campaign has generated a record-breaking $220 million, with a majority of contributions from Uber and Lyft.
On Thursday, California’s First District Court of Appeal affirmed a preliminary injunction requiring Uber and Lyft to reclassify their drivers as employees. The ruling marks a preliminary win in the ballot initiative case for Uber’s Gibson, Dunn & Crutcher attorneys, including Theodore Boutrous Jr., Theane Evangelis, Blaine Evanson and Heather Richardson.
Inside the complaint
In the complaint filed Oct. 22 by San Francisco’s Rudy Exelrod Zieff & Lowe and Legal Aid at Work, drivers and advocacy groups claimed that drivers fear retaliation after Uber directed them to vote for the measure, submit video messages and statements in support of the campaign, and take surveys on their views about their voting preferences.
Ulmer ruled that the plaintiffs were unlikely to prevail on the merits of the case and that a motion enjoining Prop. 22 campaigning six days ahead of the election will soon be moot. He also questioned the timing of the complaint, finding that the request for extraordinary relief was belated since the campaign allegedly began in August.
“Why plaintiffs waited months to sue and seek injunctive relief is not explained, and such delay casts doubt on their case,” he wrote.
The judge also decided that the motion was “particularly repugnant to free speech rights” because it sought to forbid speech activities and require Uber to disseminate plaintiffs’ messages to inform drivers that they have the right to vote against the ballot initiative, or not at all.
“This compelled political speech would ‘require more immediate and urgent grounds’ than the compelled silence of prior restraint,” he said.
Reactions to judge’s ruling
Gibson Dunn’s Evangelis said in an email statement, “We are pleased the court rejected this baseless effort to obtain a prior restraint on the eve of an election that would have stifled speech and debate, in blatant violation of the First Amendment.”
Rudy Exelrod’s David Lowe said that Uber stopped polling workers the day after plaintiffs filed the suit. Uber also submitted a sworn declaration from Brad Rosenthal, Uber’s director of strategic operational initiatives, swearing under penalty of perjury that Uber has not retaliated and will not retaliate against any worker.
“The judge essentially elevated Uber’s First Amendment rights over the First Amendment right of the employee,” Lowe said. “That’s unfortunate because if Uber won’t retaliate, I think the drivers should know that.”
Lowe said his team is considering our next steps. “This is the beginning of the case and not the end,” he said.
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