From today's Ninth Circuit decision in Yim v. City of Seattle, written by Judge Kim McLane Wardlaw, joined in part by Judges Ronald M. Gould and Mark J. Bennett:
In 2017, the City of Seattle enacted the Fair Chance Housing Ordinance. The Ordinance prohibits landlords from inquiring about the criminal history of current or potential tenants, and from taking adverse action, such as denying tenancy, against them based on that information….
We conclude that the Ordinance's inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny. However, we reject the landlords' claim that the adverse action provision of the Ordinance violates their substantive due process rights. The landlords do not have a fundamental right to exclude, and the adverse action provision survives rational basis review….
[We need not decide] whether the Ordinance regulates commercial speech and calls for the application of intermediate scrutiny, or whether the Ordinance regulates non-commercial speech and is subject to strict scrutiny review …, because we conclude that the Ordinance does not survive the intermediate scrutiny standard of review….
