63 F.4th 783
9th Cir.2023Background:
- Seattle enacted the Fair Chance Housing Ordinance (S.M.C. §14.09) banning landlords from asking prospective or current tenants about arrest/conviction records and from taking adverse actions based on criminal history, with limited exceptions (sex-offender registry, certain federal housing, owner-occupied units, ADUs).
- City stated aims: reduce housing barriers for people with criminal records and curb use of criminal history as a proxy for race to address racial disparities in housing and incarceration.
- Plaintiffs (several small landlords and a landlord trade association that provides screening services) sued, alleging First Amendment and substantive due process violations; district court upheld the Ordinance on cross-motions for summary judgment.
- Ninth Circuit held the inquiry provision implicates First Amendment speech and (assuming it regulates commercial speech) fails intermediate scrutiny as not narrowly tailored; the adverse-action provision survives rational-basis substantive due process review because there is no fundamental right to exclude.
- Because the Ordinance contains a severability clause, the panel remanded for the district court to determine whether severability should be applied and for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope: who may be barred from inquiry under “any person” language | Ordinance bars anyone in Seattle from inquiring about someone’s criminal history (overbroad) | Statute must be read in context; applies to landlord–tenant rental transactions | Court construed provision as limited to landlord/occupant context (applies to rental housing) |
| First Amendment: does the inquiry provision regulate protected speech and what scrutiny applies | Plaintiffs: restriction targets noncommercial, content- and speaker-based speech; strict scrutiny required | City: speech is commercial (part of rental transaction), so intermediate scrutiny (Central Hudson) applies | Court assumed (without deciding) commercial-speech framework, applied intermediate scrutiny and held the inquiry ban fails narrow-tailoring prong |
| Narrow tailoring / alternatives: is the ban more extensive than necessary | Plaintiffs: blanket ban burdens substantially more speech than necessary; narrower alternatives exist (individualized assessments, limited-time/serious-offense inquiries, adverse-action-only ban) | City: Council considered alternatives and reasonably chose a broad prophylactic rule to prevent pre-decision discrimination and address enforcement difficulties | Court: other jurisdictions’ narrower models and the record show less-burdensome, plausible alternatives; Seattle did not sufficiently justify the blanket ban, so it is not narrowly tailored |
| Substantive due process: does adverse-action ban violate landlords’ property right to exclude | Plaintiffs: right to exclude is fundamental; strict scrutiny required; Ordinance infringes this right | City: right to exclude is not a fundamental right in due process context; measure survives rational-basis review to further legitimate objectives | Court: right to exclude is not fundamental for substantive due process; adverse-action provision survives rational-basis review |
Key Cases Cited
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (commercial-speech three-factor test)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (intermediate scrutiny test for commercial speech)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (heightened scrutiny where law is content- and speaker-based; applied Central Hudson to commercial-speech question)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (invalidating law with exceptions that undermine its stated purpose)
- Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir.) (commercial-speech principles and content-based commercial restrictions)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (limits on commercial-speech regulation and overbreadth concerns)
- Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (narrow tailoring standard for commercial speech)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (fit between means and ends; weighing costs and benefits under speech doctrine)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (discussing right to exclude in property/takings context)