Yim v. Seattle

The ordinance must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Board of Trs. Of State Univ. Of N.Y. v. Fox, 492 U.S. 469, 478 (1989). If a speech is commercial, intermediate scrutiny should be applied, if non-commercial, strict scrutiny should be applied. If the right to exclude was fundamental, strict scrutiny should be applied.

Landlords and a landlord trade association (“Landlords”) appealed the district court’s grant of summary judgement to the City of Seattle (“the City.”) The City’s Fair Chance Housing Ordinance included an inquiry provision barring landlords from asking tenants about their criminal history, and an adverse action provision barring landlords from taking adverse action against tenants based on criminal history. The Landlords challenged the inquiry provision for violating their First Amendment rights to free speech and the adverse action provision for violating a fundamental right to exclude, which they claimed was protected by the Substantive Due Process clause. The district court first assumed, without deciding that this was commercial speech necessitating intermediate scrutiny, and the City’s ordinance failed. The ordinance must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Board of Trs. Of State Univ. Of N.Y. v. Fox, 492 U.S. 469, 478 (1989). The complete ban on discussion of criminal history between landlords and tenants significantly burdened speech in proportion to the end attained and therefore failed intermediate scrutiny. The Court held the right to exclude is not a fundamental right and applied rational basis review. The Court found that the adverse action provision was connected to the end attained and the housing discrimination is a legitimate concern. The court reasoned that the adverse action provision is connected to that end. The Court further reasoned that the ordinance’s severability clause allows the parties to argue whether evidence on record overcomes the presumption of severability.  REVERSED the district court’s inquiry provision decision, AFFIRMED the adverse action provision decision, and REMANDED.