Chong Yim v. City of Seattle, a Washington municipal corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHONG YIM; MARILYN YIM;
KELLY LYLES; EILEEN, LLC;
RENTAL HOUSING ASSOCIATION
OF WASHINGTON,
Plaintiffs-Appellants,
v.
CITY OF SEATTLE, a Washington
municipal corporation,
Defendant-Appellee.
No. 21-35567
D.C. No.
2:18-cv-00736-
JCC
OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted May 17, 2022
Seattle, Washington
Filed March 21, 2023
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Mark J. Bennett, Circuit Judges.

-- 1 of 59 --

2 CHONG Y IM V. C ITY OF SEATTLE
Opinion by Judge Wardlaw;
Concurrence by Judge Wardlaw;
Partial Concurrence by Judge Bennett;
Partial Concurrence and Partial Dissent by Judge Gould
SUMMARY*
First Amendment Speech / Due Process
The panel reversed in part and affirmed in part the
district court’s judgment upholding the constitutionality of
the City of Seattle’s Fair Chance Housing Ordinance, which
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.
Plaintiffs are landlords who filed an action against the
City, alleging violations of their federal and state rights of
free speech and substantive due process. The district court
held that the Ordinance regulates speech, not conduct, and
that the speech it regulates is commercial speech. The
district court applied an intermediate level of scrutiny to hold
that the Ordinance was constitutional as a “reasonable means
of achieving the City’s objectives and does not burden
substantially more speech than is necessary to achieve
them.”
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 3
The panel did 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 it concluded that the Ordinance did not
survive the intermediate scrutiny standard of review. The
panel held that the Ordinance’s inquiry provision impinged
upon the First Amendment rights of landlords. The City’s
stated interests—reducing barriers to housing faced by
persons with criminal records and the use of criminal history
as a proxy to discriminate on the basis of race—were
substantial. The panel disagreed with the district court that
the Ordinance was narrowly drawn to achieve the City’s
stated goals. Here, the inquiry provision—a complete ban
on any discussion of criminal history between the landlords
and prospective tenants—was not in proportion to the
interest served by the Ordinance in reducing racial injustice
and reducing barriers to housing. The panel therefore
concluded that the inquiry provision failed intermediate
scrutiny.
The panel rejected the landlords’ claim that the adverse
action provision of the Ordinance violated their substantive
due process rights because the landlords did not have a
fundamental right to exclude, and the adverse action
provision survived rational basis review. Because the
Ordinance contains a severability provision, the panel
remanded the case to the district court to determine whether
the presumption of severability was rebuttable and for
further proceedings.
Judge Wardlaw concurred. While the majority assumes,
but does not decide, that the Ordinance regulates commercial
speech, she would agree with the district court that the
speech it regulates is commercial speech. Applying the

-- 3 of 59 --

4 CHONG Y IM V. C ITY OF SEATTLE
three-factor test in Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983), she would hold that the Ordinance
regulates commercial speech and is subject to an
intermediate standard of review, which it fails to survive.
Judge Bennett concurred in the majority opinion, except
for Part III.B.i and footnote 16, and concurred in the
result. He wrote separately because under Sorrell v. IMS
Health Inc., 564 U.S. 552 (2011), he would hold that strict
scrutiny applies because the Ordinance, on its face, is a
content- and speaker-based restriction on noncommercial
speech, and the Ordinance fails strict scrutiny.
Judge Gould concurred in part and dissented in part. He
concurred in Parts I, II, III(A), III(B)(i), and IV of the
majority opinion. He agreed with Judge Wardlaw that
Seattle’s inquiry provision regulates commercial speech and
is subject to intermediate scrutiny. He dissented from the
majority’s conclusion that the inquiry provision is not
narrowly tailored, and from the resulting judgment that the
provision is unconstitutional. He would instead hold that the
inquiry provision survives intermediate scrutiny and affirm
the district court in full.
COUNSEL
Ethan W. Blevins (argued) and Brian T. Hodges, Pacific
Legal Foundation, Sacramento, California; James M.
Manley, Pacific Legal Foundation, Phoenix, Arizona; for
Plaintiffs-Appellants.
Roger D. Wynne (argued) and Sara O’Connor-Kriss,
Attorneys, Seattle City Attorney’s Office, Seattle,

-- 4 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 5
Washington; Jessica L. Goldman, Summit Law Group
PLLC, Seattle Washington; for Defendant-Appellee.
Jennifer L. Sarvadi (argued) and Rebecca E. Kuehn, Hudson
Cook LLP, Washington, D.C., for Amici Curiae Consumer
Data Industry Association and Professional Background
Screening Association.
Ilya Shapiro, Trevor Burrus, and Sam Spiegelman, Cato
Institute, Washington, D.C., for Amicus Curiae Cato
Institute.
Jill D. Bowman, Stoel Rives LLP, Seattle, Washington, for
Amicus Curiae GRE Downtowner LLC.
Victoria Wong and Manu Pradhan, Deputy City Attorneys;
David Chiu, City Attorney; San Francisco City Attorney’s
Office, San Francisco, California, for Amici Curiae
International Municipal Lawyers Association and City and
County of San Francisco.
Eric Dunn, National Housing Law Project, Richmond,
Virginia, for Amici Curiae National Housing Law Project,
Shriver Center on Poverty Law, Tenant Law Center,
Formerly Incarcerated & Convicted People and Families
Movement, and Just Cities Institute.
Nick Allen and Ashleen O’Brien, Columbia Legal Services,
Seattle, Washington; Melissa R. Lee and Robert S. Chang,
Ronald A. Peterson Law Clinic, Seattle, Washington;
Breanne Schuster, ACLU of Washington Foundation,
Seattle, Washington; for Amici Curiae Pioneer Human
Services, Tenants Union of Washington, Fred T. Korematsu
Center for Law and Equality, and ACLU of Washington.

-- 5 of 59 --

6 CHONG Y IM V. C ITY OF SEATTLE
OPINION
WARDLAW, Circuit Judge:
In 2017, the City of Seattle enacted the Fair Chance
Housing Ordinance, Seattle, Wash., Municipal Code
(S.M.C.) § 14.09, et seq. (2017) (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.
Shortly after the Ordinance was passed, Plaintiffs,
several landlords who own small rental properties and a
landlord trade association that provides background
screening services, filed this action against the City, alleging
violations of their federal and state rights of free speech and
substantive due process. On cross-motions for summary
judgment, the district court upheld the constitutionality of
the Ordinance.
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
therefore affirm in part and reverse in part the district court’s
order. Because the Ordinance contains a severability
provision, we remand this case to the district court to
determine whether the presumption in favor of severability
is rebuttable and for other proceedings consistent with this
opinion.

-- 6 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 7
I.
A.
The barriers people with a criminal history face trying to
find stable housing are well-documented. Approximately
90% of private landlords conduct criminal background
checks on prospective tenants, and nearly half of private
landlords in Seattle say they would reject an applicant with
a criminal history. As a result, formerly incarcerated persons
are nearly 10 times as likely as the general population to
experience homelessness or housing insecurity,1 and one in
five people who leave prison become homeless shortly
thereafter.
Seattle currently faces a housing crisis. Almost 12,000
people experience homelessness each night in the City,
which has one of the most expensive rental markets in the
United States. In 2022, the City’s waiting lists for subsidized
housing range from one to eight years. As amici recognize,
“[c]riminal history screening exacerbates . . . affordability
challenges by disqualifying persons from rental housing
even when they have the financial means to afford the
housing and could live there successfully.” Br. of Amici
Curiae Nat’l Housing L. Project, Shriver Ctr. on Poverty
Law, Tenant L. Center, Formerly Incarcerated & Convicted
People, and Families Movement & Just Cities Inst. (Shriver
Am. Br.) 26.
This “prison to homelessness pipeline” has a host of
negative effects on communities. Persons without stable
1 See Lucius Couloute, Nowhere to Go: Homelessness Among Formerly
Incarcerated People, Prison Policy Initiative,
https://www.prisonpolicy.org/reports/housing.html (Aug. 2018) (last
visited Aug. 29, 2022).

-- 7 of 59 --

8 CHONG Y IM V. C ITY OF SEATTLE
housing are significantly more likely to recidivate, with one
study estimating that people with unstable housing were up
to seven times more likely to re-offend.2 They are less likely
to be able to find stable employment and access critical
physical and mental healthcare.3 And, as amici explain, “the
sheer number of children who have a parent with a criminal
record necessarily means that the damaging impacts of a
criminal record touch multiple generations.” Br. of Amici
Curiae Pioneer Hum. Servs., Tenants Union of Wash., Fred
T. Korematsu Ctr. for L. & Equality, and ACLU of Wash.
(Pioneer Am. Br.) 8 (citation omitted). Housing instability
can make “family reunification post-incarceration ‘difficult
if not impossible,’” and often results in children being placed
in foster care. Id. (citation omitted).
These consequences are not borne equally by all
Americans. In the United States, people of color are
significantly more likely to have a criminal history than their
white counterparts. Discriminatory law enforcement
practices have resulted in people of color being “arrested,
convicted and incarcerated at rates [that are]
disproportionate to their share of the general population.”4
In 2014, for example, African Americans comprised 12% of
the total population, but 36% of the total prison population.5
2 See Valerie Schneider, The Prison to Homelessness Pipeline: Criminal
Records Checks, Race, and Disparate Impact, 93 Ind. L. J. 421, 432–33
(2018).
3 Id. at 434.
4 Id. at 423 (alteration in original) (quoting U.S. Dep’t of Hous. & Urb.
Dev., Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Use of Criminal Records by Providers of
Housing and Real Estate-Related Transactions 2 (2016)).
5 Id. at 424 (citing U.S. Dep’t of Hous. & Urb. Dev., supra, at 3).

-- 8 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 9
As of 2018, one in nine Black men ages 20–34 was
incarcerated, and one in three Black men had spent time in
prison over the course of his lifetime.6
Seattle is no exception. Data from the Seattle Police
Department show that “Black persons are stopped at a rate
that is 4.1 times that of non-Hispanic white persons and
Indigenous persons are stopped a rate that is 5.8 times that
of non-Hispanic white persons.” Pioneer Am. Br. 7. While
the overall population in King County, home to Seattle, is
just 6.8% Black, the population of the King County jail is
36.6% Black, according to a 2021 report released by the
County Auditor’s Office.7 And while Native Americans are
1.1% of the King County population, they number 2.4% of
the County’s jail population.
The correlation between race and criminal history can
result in both unintentional and intentional discrimination on
the part of landlords who take account of criminal history.
A landlord with a policy of not renting to tenants with a
criminal history might not bear any racial animus, but the
policy could nevertheless disproportionately exclude people
of color. On the flip side, a landlord who does not wish to
rent to non-white tenants could mask discriminatory intent
with a “policy” of declining to rent to tenants with a criminal
history. A 2014 fair housing test conducted by the Seattle
6 Id. (citing Avlana K. Eisenberg, Incarceration Incentives in the
Decarceration Era, 69 Vand. L. Rev. 71, 81 (2016)).
7 See Lewis Kamb, Audit of King County Jails Finds Racial Disparities in
Discipline, Says ‘Double-Bunking’ Leads to Violence, Seattle Times (Apr.
6, 2021) https://www.seattletimes.com/seattle-news/audit-of-king-county-
jails-finds-racial-disparities-in-discipline-says-double-bunking-leads-to-
violence/#:~:text=A%20disproportionate%20number%20of%20Black,be
en%20convicted%20of%20a%20crime (last visited Sept. 30, 2022).

-- 9 of 59 --

10 CHONG Y IM V. C ITY OF SEATTLE
Office of Civil Rights found evidence of the latter practice,
reporting that testers belonging to minority groups were
frequently asked about their criminal history, while similarly
situated white testers were not. It also found incidents of
differential treatment based on race in housing 64% of the
time, including incidences of this practice.
The cumulative effects of racialized discrimination in
housing on homelessness are hard to measure. However, it
is striking that while Seattle is just 7% Black, Seattle’s
unhoused population is 25% Black.8
B.
After comprehensively studying this problem, in 2017,
the City enacted the Fair Chance Housing Ordinance. The
City stated two purposes for enacting the Ordinance: (1)
“address[ing] barriers to housing faced by people with prior
records;” and (2) lessening the use of criminal history as a
proxy to discriminate against people of color who are
disproportionately represented in the criminal justice
system. Seattle, Wash., Ordinance 125393 at 5 (Aug. 23,
2017) (codified at S.M.C. §§ 14.09.010–.025). In enacting
the Ordinance, the City found that “racial inequities in the
criminal justice system are compounded by racial bias in the
rental applicant selection process,” and that “higher
recidivism . . . is mitigated when individuals have access to
safe and affordable housing.” Id. at 2–3.
The Ordinance prohibits landlords from requiring
disclosure or inquiring about “any arrest record, conviction
8 See How Seattle’s Homelessness Crisis Stacks Up Across the Country
and Region, Seattle Times (June 27, 2021)
https://projects.seattletimes.com/2021/project-homeless-data-page (last
visited Sept. 30, 2022).

-- 10 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 11
record, or criminal history” of current or prospective tenants,
and from taking adverse action against them based on that
information.9 S.M.C. § 14.09.025(A). An “adverse action”
includes, among other things, “[r]efusing to engage in or
negotiate a rental real estate transaction,” “denying
tenancy,” “[e]xpelling or evicting an occupant,” and
applying different rates or terms to a rental real estate
transaction. Id. § 14.09.010.
The Ordinance’s inquiry provision includes four
exceptions relevant here. First, all landlords may inquire
about a prospective tenant’s sex offender status and take
certain adverse actions based on that information. Id.
§§ 14.09.025(A)(2), 14.09.115(B). Second, so as not to
conflict with federal law, the adverse action requirement
does not apply to “landlords of federally assisted housing
subject to federal regulations that require denial of tenancy.”
Id. § 14.09.115(B). Third, the provision “shall not apply to
the renting, subrenting, leasing, or subleasing of a single
family dwelling unit in which the owner or subleasing tenant
or subrenting tenant occupy part of the single family
dwelling unit.” Id. § 14.09.115(C). Fourth, neither
provision applies to “the renting, subrenting, leasing or
subleasing of an accessory dwelling unit or detached
accessory dwelling unit [in which] the owner or person
entitled to possession [of the dwelling] maintains a
9 During the height of the COVID-19 pandemic, the City amended the
Ordinance to also prohibit landlords from taking adverse actions against
tenants based on evictions that occurred during the state of emergency.
See S.M.C. § 14.09.026. As a result, the ordinance was renamed the
“Fair Chance Housing and Evictions Records Ordinance.” Id.
§ 14.09.005.

-- 11 of 59 --

12 CHONG Y IM V. C ITY OF SEATTLE
permanent residence, home or abode on the same lot.”
Id. § 14.09.115(D).
Seattle is not the only jurisdiction to have adopted
legislation restricting reliance on criminal history
backgrounds by landlords. Other cities, including Berkeley,
Oakland and Ann Arbor, have adopted ordinances similar to
Seattle’s.10 However, the vast majority of jurisdictions have
adopted ordinances that permit landlords to consider at least
some of a potential tenant’s criminal history, albeit with
some additional protections.11
C.
Several months after Seattle passed the Ordinance, the
landlords and their trade organization (collectively,
“landlords”) sued the City challenging its constitutionality.
Plaintiffs Chong and MariLyn Yim, Kelly Lyles, and Eileen,
LLC are local landlords who own and manage small rental
properties in Seattle. Plaintiff Rental Housing Association
of Washington (RHA) is a nonprofit trade organization for
landlord members, most of whom own and rent residential
properties in Seattle. RHA provides professional screening
services, including background checks, on potential tenants
to its some 5,300 members.
The landlords initially filed their suit in state court,
facially challenging two provisions of the statute. First, they
10 See Berkeley, Cal., Mun. Code § 13.106.040, et seq.; Oakland, Cal.,
Mun. Code § 8.25.010, et seq.; Ann Arbor, Mich., Mun. Code, Title IX,
Chapter 122, § 9:600, et seq.
11 See National Housing Law Project, Fair Chance Ordinances: An
Advocate's Toolkit 38–40 (2019), https://www.nhlp.org/nhlp-
publications/fair-chance-ordinances-an-advocates-toolkit (last visited
Sept. 30, 2022).

-- 12 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 13
challenged the “inquiry provision,” which bars landlords
from asking about a tenant’s criminal history, alleging that it
violated their First Amendment rights as well as their
corollary rights under the Washington State Constitution.
The landlords contend that the inquiry provision should be
deemed non-commercial speech subject to strict scrutiny,
which it cannot survive, or alternatively, if deemed
commercial speech subject to intermediate scrutiny, it fails
as not narrowly tailored to the government’s stated purposes.
Second, the landlords challenged the “adverse action
provision,” which bars landlords from taking adverse action
against a tenant based on the tenant’s criminal history,
alleging that the provision violates their rights under the
Substantive Due Process Clause, as well as their corollary
rights under the Washington State Constitution. They argue
that the statute infringed landlords’ fundamental right to
exclude persons from their property, and is thus subject to
strict scrutiny, or alternatively, the provision cannot survive
rational basis review because of an alleged disconnect
between its ends and means.
Once the City removed the case to federal court, it
proceeded rapidly. The parties stipulated that “discovery
and trial [were] unnecessary,” and filed cross-motions for
summary judgment as well as a stipulated record. Before
deciding the motions, the district court certified three
questions to the Washington State Supreme Court regarding
the standards of review accorded to the state constitution’s
substantive due process rights. The Washington State
Supreme Court answered the certified questions, and, in a
decision issued in January 2020, held that Washington State
substantive due process claims are subject to the same
standards as federal due process claims, and that the “same
is true of state substantive due process claims involving land

-- 13 of 59 --

14 CHONG Y IM V. C ITY OF SEATTLE
use regulations and other laws regulating the use of
property.” Yim v. City of Seattle, 194 Wash.2d 682, 686
(2019). Therefore, the Washington court held that the
standard of review for the landlords’ substantive due process
challenge to the Ordinance is rational basis review. Id.
On July 6, 2021, the district court granted summary
judgment in favor of the City, upholding the Ordinance. On
the First Amendment claims, the district court held as a
threshold matter that the landlords had standing to challenge
the application of the provision to inquiries about only
prospective tenants, not current tenants. Moving to the
merits, the district court held that the inquiry provision did
implicate the First Amendment, but that it regulated
commercial speech, which subjected it to intermediate
scrutiny. Applying intermediate scrutiny, the district court
upheld the Ordinance, reasoning that Seattle had asserted
substantial interests, that the Ordinance directly advanced
those interests, and that it was narrowly drawn to achieve
them. On the substantive due process claim, the district
court held that the landlords’ asserted right “to rent their
property to whom they choose, at a price they choose,
subject to reasonable anti-discrimination measures” was not
a fundamental right. It was therefore subject to rational basis
review, which it readily survived. The landlords filed this
timely appeal.
II.
The grant of summary judgment is reviewed de novo.
Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir.
2018). “We determine, viewing the evidence in the light
most favorable to the nonmoving party, whether there are
any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Wallis

-- 14 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 15
v. Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002)
(citing Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d
1252, 1257 (9th Cir. 2001)).
III.
On appeal, the landlords reassert their argument that the
inquiry provision of the Ordinance violates the First
Amendment,12 as applied to prospective tenants.13 They
also argue that the adverse action provision impermissibly
interferes with their fundamental property right to exclude
prospective tenants based on their criminal history.
A.
Before determining the constitutionality of the inquiry
provision, we must determine the scope of the speech it
regulates. The parties dispute the persons to whom the
inquiry provision applies, that is, which individuals the
provision prohibits from inquiring about prospective
tenants’ criminal history. See United States v. Williams, 553
U.S. 285, 293 (2008) (“[I]t is impossible to determine
whether a statute reaches too far without first knowing what
the statute covers.”). The City contends that the provision
bars landlords from inquiring into the criminal history of
their own prospective tenants, while the landlords contend
that it more broadly bars anyone in Seattle from inquiring
into the criminal history of any person who happens to be
12 Before the district court, “[t]he parties assume[d] that the free speech
clause in Washington’s constitution [was] coextensive with the First
Amendment in this context and the Court assume[d] the same.” This
assumption is not contested on appeal.
13 The district court held that the landlords had standing to challenge the
application of the provision to inquiries about prospective tenants only.
The landlords do not appeal this holding.

-- 15 of 59 --

16 CHONG Y IM V. C ITY OF SEATTLE
seeking to rent any apartment for any reason, whether to
transact business or not.
The dispute stems from the way the City defines
“person” in the Ordinance. The inquiry provision prohibits
“any person” from asking about a prospective occupant’s
criminal history:
It is an unfair practice for any person to . . .
inquire about . . . any arrest record, conviction
record, or criminal history of a prospective
occupant except pursuant to certain
exceptions.
S.M.C. § 14.09.025(A), (2) (emphasis added). Section
14.09.010 of the Ordinance defines “person” as one or more
“individuals” or “organizations.” The landlords argue that
because the definition of “person” in the Ordinance is not
limited to “the landlord or occupant of the unit the
prospective tenant is seeking to rent,” the Ordinance
prevents anyone, not just the landlord or occupant in
question, from inquiring about that person’s criminal
history. That is, so long as a person is actively seeking an
apartment, and is thus a “prospective tenant,” the provision
bars anyone from looking into that person’s criminal history,
even people unrelated to the transaction, such as the City, a
journalist, or a firearms dealer. The City, relying on
statutory context, legislative history and common sense,
argues that the definition of “person” is limited to the
landlord or occupant of the unit the prospective tenant is
seeking to rent.
We conclude that the City has the better of the argument.
We are required to interpret terms “in the context of the
Ordinance as a whole,” and nothing about the Ordinance’s

-- 16 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 17
text, purpose, or legislative history indicates that the City
intended it to regulate anything other than rental housing.
First Resort, Inc. v. Herrera, 860 F.3d 1263, 1274 (9th Cir.
2017). For example, the title of the Ordinance is the “Fair
Chance Housing Ordinance,” see Seattle, Wash., Ordinance
125393 (emphasis added), and Chapter 14.09, where the
Ordinance was eventually codified, is titled “Use of
Screening Records in Housing.” S.M.C. § 14.09 (emphasis
added). “Fair chance housing” is then defined as “practices
to reduce barriers to housing for persons with criminal
records.” Id. § 14.09.010 (emphasis added).
Other textual provisions support the conclusion that the
City intended to limit the Ordinance to the landlord-tenant
context. The text explicitly provides that every application
for a rental property “shall state that the landlord is
prohibited from requiring disclosure, asking about, rejecting
an applicant, or taking an adverse action based on any arrest
record, conviction record, or criminal history.” Id.
§ 14.09.020 (emphasis added). Section 14.09.025, entitled
“Prohibited use of criminal history,” prohibits “any person”
from “carry[ing] out an adverse action” based on sex
offender registry information, “unless the landlord has a
legitimate business reason for taking such action.” Id.
§ 14.09.025 (emphasis added).
“[W]e are not required to interpret a statute in a
formalistic manner when such an interpretation would
produce a result contrary to the statute's purpose or lead to
unreasonable results.” United States v. Combs, 379 F.3d 564,
569 (9th Cir. 2004). The very purpose of the Ordinance was
to reduce barriers to housing and housing discrimination by
barring landlords from considering an applicant’s criminal
history. See S.M.C. § 14.09.010. Additionally, the
landlords’ broad interpretation of the Ordinance would

-- 17 of 59 --

18 CHONG Y IM V. C ITY OF SEATTLE
prohibit background checks on prospective tenants in all
contexts, including for firearm sales or in the employment
context, which are explicitly permitted in other areas of the
Seattle Municipal Code. Id. §§ 12A.14.140 (permitting
background checks for firearm sales), 14.17.020 (permitting
employers to perform criminal background checks on job
applicants). A housing ordinance that bars most legally
permitted criminal background checks would lead to an
“unreasonable or impracticable result[].” United States v.
Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
Here, the text, context, and purpose of the statute
undermine the landlords’ view, and demonstrate that the
inquiry provision bans landlords from inquiring into the
criminal history of tenants applying to inspect, rent, or lease
their properties.
B.
The district court held that the Ordinance regulates
speech, not conduct, and that the speech it regulates is
commercial speech. The district court then applied an
intermediate level of scrutiny to hold that the Ordinance was
constitutional as a “reasonable means of achieving the City’s
objectives and does not burden substantially more speech
than is necessary to achieve them.” The parties on appeal
dispute 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. We need not decide
that question, however, because we conclude that the
Ordinance does not survive the intermediate scrutiny
standard of review. Because “the outcome is the same
whether a special commercial speech inquiry or a stricter
form of judicial scrutiny is applied,” Sorrell v. IMS Health

-- 18 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 19
Inc., 564 U.S. 552, 571 (2011), we do not decide whether the
Ordinance regulates commercial or non-commercial speech.
Assuming, without deciding, that the Ordinance regulates
commercial speech, we apply the intermediate scrutiny
standard codified in Central Hudson Gas & Electric Corp.
v. Public Service Commission, 447 U.S. 557 (1980).14
Under Central Hudson, courts must analyze: (1) whether the
“commercial speech” at issue “concern[s] lawful activity”
and is not “misleading”; (2) “whether the asserted
government interest is substantial” in regulating the speech;
(3) “whether the regulation directly advances the
governmental interest asserted”; and (4) “whether it is not
more extensive than is necessary to serve that interest.” Id.
at 566.
“Any First Amendment interest . . . is altogether absent
when the commercial activity itself is illegal, and the
restriction on advertising is incidental to a valid limitation
on economic activity.” Pittsburgh Press Co. v. Pittsburgh
Comm’n on Hum. Rel., 413 U.S. 376, 389 (1973). It is
undisputed that the Ordinance does not prohibit misleading
speech.15 Rather, it prohibits inquiring about information
14 To the extent the landlords argue that even if the inquiry provision
regulates commercial speech, the court should apply strict rather than
intermediate scrutiny because it is “content based,” this argument is
refuted by our precedent, which holds that content-based restrictions of
commercial speech are subject to intermediate scrutiny as well. See
Valle Del Sol, Inc. v. Whiting, 709 F.3d 808, 820 (9th Cir. 2013)
(applying intermediate scrutiny to “content-based restrictions” of
commercial speech).
15 The City does not concede that the statute does not regulate speech
that “concerns unlawful activity or is misleading.” However, its
argument is circular: “Because the adverse-action provision bans
landlords from using criminal history in selecting tenants, the inquiry

-- 19 of 59 --

20 CHONG Y IM V. C ITY OF SEATTLE
that is of record, and most likely accurate. While criminal
records may be “associated with unlawful activity,”
reviewing and obtaining criminal records is generally a legal
activity. A prohibition on reviewing criminal records
therefore is not speech that “proposes an illegal transaction”
and does not escape First Amendment scrutiny under
Central Hudson. Valle Del Sol, Inc., 709 F.3d at 821.
The City’s stated interests—reducing barriers to housing
faced by persons with criminal records and the use of
criminal history as a proxy to discriminate on the basis of
race—are substantial. The landlords do not challenge the
importance of these interests. Therefore, we evaluate
whether the Ordinance directly and materially advances the
government’s substantial interests, and whether it is
narrowly tailored to achieve them.
i.
To be sustained, the Ordinance must directly advance a
substantial state interest, and “the regulation may not be
sustained if it provides only ineffective or remote support for
the government’s purpose.” Central Hudson, 447 U.S. at
564. A restriction “directly and materially advances” the
government’s interests if the government can show “the
harms it recites are real and that its restriction will in fact
alleviate them to a material degree.” Fla. Bar v. Went For
It, Inc., 515 U.S. 618, 626 (1995) (citations omitted). There
is no dispute that the harms the City points to—a crisis of
homelessness among the formerly incarcerated and
landlords’ use of criminal history as a proxy for race—“are
real,” or that the City’s purpose was to combat racial
provision’s prohibition on asking for criminal history regulates speech
related to unlawful activity.”

-- 20 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 21
discrimination. The only question is whether the part of the
policy the City enacted to address them, the inquiry
provision, does so in a meaningful way.
We have observed that a statute cannot meaningfully
advance the government’s stated interests if it contains
exceptions that “undermine and counteract” those goals.
Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995).
“One consideration in the direct advancement inquiry is
underinclusivity . . . Central Hudson requires a logical
connection between the interest a law limiting commercial
speech advances and the exceptions a law makes to its own
application.” Valle Del Sol Inc., 709 F.3d at 824 (internal
quotation marks and citation omitted). For example, in
Rubin, the Supreme Court considered a federal regulation
which banned brewers from advertising the strength of their
beer using numbers, but allowed them to do so using
“descriptive terms” with the goal of preventing brewers from
competing in “strength wars” over alcohol content. Rubin,
514 U.S. at 489. The Court struck down the regulation,
holding that the rule did not do anything meaningful to
prevent brewers from competing on alcohol content because
the exception—allowing brewers to communicate the exact
same information about alcohol content, just in words
instead of numbers—completely swallowed the rule. Id.
The landlords contend that the inquiry provision does not
“materially advance” the City’s interests because “[t]he
Ordinance’s exception for federally assisted housing renders
it fatally underinclusive.” That is, even assuming a policy
barring all landlords from inquiring about a person’s
criminal history would directly advance the City’s goals, an
otherwise identical policy including the federal exemption
would not. In support of that argument, they observe that

-- 21 of 59 --

22 CHONG Y IM V. C ITY OF SEATTLE
many persons with a criminal record have federal housing
vouchers.
However, as written, the Ordinance excludes only the
adverse action provision from applying to federally assisted
housing. S.M.C. § 14.09.115(B) (providing that “Chapter
14.09 shall not apply to an adverse action taken by landlords
of federally assisted housing subject to federal regulations
that require denial of tenancy”) (emphasis added). The only
provision that would appear to exempt federal housing from
the inquiry provision is the first exemption, which generally
provides that the Ordinance “shall not be interpreted or
applied to diminish or conflict with any requirements of state
or federal law.” Id. § 14.09.115(A).
“It is well established that a law need not deal perfectly
and fully with an identified problem” in order to directly and
materially advance the government’s interests. Contest
Promotions, LLC v. City & Cnty. of San Francisco, 874 F.3d
597, 604 (9th Cir. 2017); see also Williams-Yulee v. Fla.
Bar, 575 U.S. 433, 435 (2015) (warning that the “[t]he State
should not be punished for leaving open more, rather than
fewer, avenues of expression, especially when there is no
indication of a pretextual motive for the selective restriction
of speech”). In this case, however, the adverse action
exemption is well-justified by the City’s interest in
preventing federal law from preempting the Ordinance.
Federally assisted housing providers are required under
federal regulations to deny tenancy for tenants who have
certain convictions. See, e.g., 24 C.F.R. §982.553(a)(1)(ii)(C)
(denying admission if a “household member has ever been
convicted of drug-related criminal activity for manufacture
or production of methamphetamine on the premises of
federally assisted housing.”). If the City had enacted an

-- 22 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 23
ordinance potentially preempted by federal regulation, the
City would have risked having to later revise its own laws.
While the Ordinance might better achieve its goals if it
applied to more types of landlords, there is no evidence that
exempting federal landlords from the adverse action
provision undermines the effectiveness of subjecting private
landlords to the inquiry provision. In fact, the exemption
may strengthen the Ordinance by avoiding conflict with
federal law.
ii.
However, we must disagree with the district court that
the Ordinance is “narrowly drawn” to achieve the City’s
stated goals. Central Hudson, 447 U.S. at 565 (internal
quotation marks and citation omitted).
“[I]f the governmental interest could be served as well
by a more limited restriction on commercial speech, the
excessive restrictions cannot survive.” Id. at 564. Courts
therefore must consider “[t]he availability of narrower
alternatives,” which accomplish the same goals, but “intrude
less on First Amendment rights.” Ballen v. City of Redmond,
466 F.3d 736, 743 (9th Cir. 2006).16 “In requiring that [the
16 The landlords propose a number of alternative policies, none of which
is a reasonable substitute for the Ordinance. First, they argue that the
City could have omitted the inquiry provision entirely, and simply passed
the adverse action provision. However, if landlords are allowed to access
criminal history, just not act on it, it makes the Ordinance extremely
difficult to enforce, and makes it more likely that unconscious bias will
impact the leasing process. See Helen Norton, Discrimination, the
Speech That Enables It, and the First Amendment, 2020 U. Chi. L. For.
209, 218 (2020) (“Legislatures’ interest in stopping discrimination
before the fact is especially strong because after-the-fact enforcement is
frequently slow, costly, and ineffective.”). Second, the landlords argue

-- 23 of 59 --

24 CHONG Y IM V. C ITY OF SEATTLE
restriction] be ‘narrowly tailored’ to serve an important or
substantial state interest, we have not insisted that there be
no conceivable alternative, but only that the regulation 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)
(cleaned up) (quoting Ward v. Rock Against Racism, 491
U.S. 781, 799 (1989)). In considering the “fit between the
legislature’s ends and the means chosen to accomplish those
ends,” the fit must not necessarily be the “least restrictive
means,” but “reasonable” and through “a means narrowly
tailored to achieve the desired objective.” Id. at 480 (cleaned
up).
In order to conclude that the inquiry provision was
“narrowly drawn” to achieve the City’s goals related to
housing access and racial discrimination, we therefore must
find that the City “carefully calculated the costs and benefits
that the City should address its “own biased policing practices,” which it
pegs as a source of the racial disparities in criminal history. However,
as the Third Circuit has observed, “[i]ntermediate scrutiny . . . does not
require that the City adopt such regulatory measures only as a last
alternative.” Greater Philadelphia Chamber of Commerce v. City of
Philadelphia, 949 F.3d 116, 156 (3d Cir. 2020). Third, the landlords
suggest that the City could have adopted a “certification program,”
where persons with a criminal history could provide landlords with an
official certificate that demonstrates a consistent pattern of law-abiding
behavior. However, as the City observes in its brief, that alternative was
considered during the Ordinance’s passage, and rejected because its
sweep would be too narrow. Finally, the landlords suggest that Seattle
build more public housing. However, in order to survive intermediate
scrutiny, the content of a challenged regulation must reflect that a City
weighed the “costs and benefits” of a particular regulation, and the costs
of building new housing are astronomical. Discovery Network, 507 U.S.
at 417.

-- 24 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 25
associated with the burden on speech,” City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 417 (1993) (internal
quotation marks omitted), and that the inquiry provision
struck a “reasonable” balance between the interests of
various parties. Fox, 492 U.S. at 480. Here, the inquiry
provision—a complete ban on any discussion of criminal
history between the landlords and prospective tenants—is
not “in proportion to the interest served” by the Ordinance
in reducing racial injustice and reducing barriers to housing.
Id. (citation omitted). Other cities have enacted similar
ordinances to achieve the same goals of reducing barriers to
housing and racial discrimination as Seattle. While we do
not address the constitutionality of any of these ordinances,
none of them forecloses all inquiry into criminal history by
landlords, as does Seattle’s blanket ban on any criminal
history inquiry.17
The ordinances adopted by those other jurisdictions fall
into two main categories. The first type of ordinance (“Type
I”)—adopted by Cook County,18 San Francisco,19
17 Respectfully, Judge Gould’s dissent confuses the Ordinance’s ends
with its means. Seattle’s “substantial interest[]” was not in “reducing
discrimination against anyone with a criminal record.” The Ordinance’s
stated goal was to “address barriers to housing faced by people with prior
records” and reduce racial discrimination against people of color who are
disproportionately represented in the criminal justice system. Those
goals can be accomplished by means other than the Ordinance’s: a near-
blanket prohibition on any inquiry about a tenant’s criminal history. A
blanket ban on speech goes “much further than is necessary to serve the
interest asserted.” Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (emphasis
added). None of the referenced ordinances bans all inquiry into criminal
history.
18 Cook County, Ill., Code § 42-38.
19 S.F., Cal., Admin. Code §§ 87.1–.11.

-- 25 of 59 --

26 CHONG Y IM V. C ITY OF SEATTLE
Washington, D.C.,20 Detroit,21 and the State of New
Jersey22—requires landlords to conduct an initial screening
of potential tenants without looking at their criminal history
and to notify applicants whether they pass that initial
screening. At that point, landlords are permitted to order a
criminal background check, but must provide the applicant
with a copy of the report, give them a chance to provide
mitigating information, and may consider only a limited
subset of offenses. Cook County permits landlords to
consider any convictions within the last three years; San
Francisco and Washington, D.C. permit landlords to
consider any convictions sustained within the past seven
years; and the State of New Jersey creates a sliding scale,
allowing landlords to consider fourth degree offenses within
the past year, second or third degree offenses within the last
four years, first degree offenses within the last six years, and
a short list of extremely serious offenses including murder
and aggravated sexual assault no matter when they occurred.
The second type of ordinance (“Type II”)—adopted by
Portland23 and Minneapolis24—allows landlords to either
consider an applicant’s entire criminal history, but complete
a written individualized evaluation of the applicant, and
explain any rejection in writing, or consider only a limited
subset of offenses—misdemeanor convictions within the last
20 D.C. Code §§ 42-3541.01–.09.
21 Detroit, Mich., City Code § 26-5-1.
22 N.J. Admin. Code §§ 13:5-1.1–2.7.
23 Portland, Or., City Code § 30.01.086.
24 Minneapolis, Minn., City Code § 244.2030.

-- 26 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 27
three years or felony convictions within the last seven
years—without any additional procedures.
The inquiry requirement in both types of ordinances
imposes a significantly lower burden on landlords’ speech.
As amici assert, screening before the Ordinance often
examined “the presence of violent offenses in a criminal
history” and the “type of crime and length of time since the
crime was committed.” Br. of Amici Curiae Consumer Data
Indus. Ass’n & the Pro. Background Screening Ass’n at 8;
GRE Downtowner Am. Br. at 5. These ordinances would
permit the landlords to ask a potential tenant about their most
recent, serious offenses, which is the information a landlord
would be most interested in. Neither ordinance imposes any
additional costs on the City.
Indeed, the record demonstrates that Seattle considered
a narrower version of the Ordinance, as well as many fair
housing ordinances from other jurisdictions, and rejected
those versions with little stated justification. The first
version of the Seattle Ordinance permitted landlords to
inquire about some criminal convictions, while still banning
them from asking about: “arrests not leading to convictions;
pending criminal charges; convictions that have been
expunged, sealed, or vacated; juvenile records, including
listing of a juvenile on a sex offense registry; and convictions
older than two years from the date of the tenant’s
application.” Yet, when it decided to broaden the inquiry
provision to a blanket ban, the Council offered the tenuous
explanation that landlords did not insist on background
checks a decade ago, so therefore there was “no evidence
that criminal history is an indicator of a bad tenant.” A
decade ago, however, the technology did not exist to readily
screen potential tenants—much as routine credit checks on
tenants did not exist a few decades ago. Like with credit

-- 27 of 59 --

28 CHONG Y IM V. C ITY OF SEATTLE
checks, as soon as the technology existed, landlords insisted
on using it to screen tenants because they were concerned
about tenants with a criminal history. From the record
before us, Seattle offered no reasonable explanation why the
more “narrowly tailored” versions of the bill could not
“achieve the desired objective” of reducing racial barriers in
housing. Fox, 492 U.S. at 480.
Because a number of other jurisdictions have adopted
legislation that would appear to meet Seattle’s housing
goals, but is significantly less burdensome on speech, we
conclude that the inquiry provision at issue here is not
narrowly tailored, and thus fails intermediate scrutiny.25
IV.
Next, the landlords challenge the “adverse action
provision” of the Ordinance on the grounds that it violates
their Fourteenth Amendment Substantive Due Process right
to exclude persons from their property.26
The landlords argue that we should apply strict scrutiny
to the Ordinance because the right to exclude is
“fundamental.” However, the Supreme Court has never
recognized the right to exclude as a “fundamental” right in
the context of the Due Process Clause. Cf. Cedar Point
Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (referring
to the right to exclude as “a fundamental element of the
property right” in the context of a takings clause analysis
25 The constitutionality of the other ordinances is not an issue before us,
and we do not opine on that question.
26 The Washington Supreme Court has held that the “state substantive
due process claims are subject to the same standards as federal
substantive due process claims.” Yim v. City of Seattle, 451 P.3d 694,
696 (Wash. 2019). So, the analysis of both claims is identical.

-- 28 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 29
(citation omitted)); see also Murr v. Wisconsin, 137 S. Ct.
1933, 1943 (2017) (same); Knick v. Twp. of Scott, Pa., 139
S. Ct. 2162, 2174 (2019) (same); Kaiser Aetna v. United
States, 444 U.S. 164, 179–80 (1979) (same). And we have
clearly held that “[t]he right to use property as one wishes is
also not a fundamental right.” Slidewater LLC v. Wash.
State Dept. of Lab. & Indus., 4 F.4th 747, 758 (9th Cir.
2021).
Under our precedent, when a law infringes on a non-
fundamental property right, we apply rational basis review.
See Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234
(9th Cir. 1994) (“In a substantive due process challenge, we
do not require that the City's legislative acts actually advance
its stated purposes, but instead look to whether the
governmental body could have had no legitimate reason for
its decision.” (internal quotation marks, citations, and
emphasis omitted)). The landlords argue that we should
apply a slightly heightened form of scrutiny, relying on
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), a case
about the Takings Clause in which the Supreme Court held
that the “[substantially advances] formula prescribes an
inquiry in the nature of a due process, not a takings, test, and
that has no proper place in our takings jurisprudence.” Id. at
540. While Lingle rejected a form of heightened scrutiny in
Takings Clause challenges, it did not address or change the
standard for substantive due process challenges, and we have
continued to apply rational basis scrutiny to substantive due
process challenges that concern non-fundamental property
rights. See Samson v. City of Bainbridge Island, 683 F.3d
1051, 1058 (9th Cir. 2012) (holding that where an ordinance
did not impinge on a fundamental right, “to establish a
substantive due process violation, the [Plaintiffs needed to]
show that Bainbridge's ordinances . . . were ‘clearly arbitrary

-- 29 of 59 --

30 CHONG Y IM V. C ITY OF SEATTLE
and unreasonable, having no substantial relation to the
public health, safety, morals or general welfare.’” (quoting
Kawaoka, 17 F.3d at 1234)); Shanks v. Dressel, 540 F.3d
1082, 1088–89 (9th Cir. 2008) (rejecting a substantive due
process claim because appellants failed to show the
government action was “constitutionally arbitrary”).
To survive rational basis review, the government must
offer a “legitimate reason” for passing the ordinance.
Kawaoka, 17 F.3d at 1234 (citations omitted). Here, Seattle
offers two legitimate rationales for its policy: reducing
barriers to housing faced by persons with criminal records
and lessening the use of criminal history as a proxy to
discriminate on the basis of race. The landlords fail to
seriously challenge the obvious conclusion that the adverse
action provision is legitimately connected to accomplishing
those goals. Therefore, we find the adverse action provision
easily survives rational basis review.
V.
We note that the Ordinance contains a severability
clause, S.M.C. § 14.09.120, which states that:
The provisions of this Chapter 14.09 are declared to
be separate and severable. If any clause, sentence,
paragraph, subdivision, section, subsection, or
portion of this Chapter 14.09, or the application
thereof to any landlord, prospective occupant, tenant,
person, or circumstance, is held to be invalid, it shall
not affect the validity of the remainder of this
Chapter 14.09, or the validity of its application to
other persons or circumstances.

-- 30 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 31
Absent any legislative intent to the contrary, a severability
clause ordinarily “creates a presumption that if one section
is found unconstitutional, the rest of the statute remains
valid.” United States v. Spokane Tribe of Indians, 139 F.3d
1297, 1299 (9th Cir. 1998). The parties should have an
opportunity to brief and argue before the district court
whether there is evidence in the record that overcomes the
presumption of severability. See, e.g., Nat’l Mining Ass’n v.
Zinke, 877 F.3d 845, 860–61 (9th Cir. 2017) (affirming a
district court ruling that a legislative provision was
unconstitutional but severable). We therefore remand this
case to the district court.
VI.
For all the reasons stated above we REVERSE the
district court in part, AFFIRM the district court in part, and
remand to the district court for further proceedings
consistent with this opinion.
WARDLAW, Circuit Judge, concurring:
While the majority opinion assumes, but does not decide,
that the Ordinance regulates commercial speech, I would
agree with the district court that the speech it regulates is
commercial speech.
Commercial speech is “usually defined as speech that
does no more than propose a commercial transaction.”
United States v. United Foods, Inc., 533 U.S. 405, 409
(2001) (citation omitted). However, that definition is “just a
starting point,” and courts “try to give effect to a common-
sense distinction between commercial speech and other

-- 31 of 59 --

32 CHONG Y IM V. C ITY OF SEATTLE
varieties of speech.” Ariix, LLC v. NutriSearch Corp., 985
F.3d 1107, 1115 (9th Cir. 2021) (internal quotation marks
and citations omitted). Indeed, “[o]ur commercial speech
analysis is fact-driven, due to the inherent difficulty of
drawing bright lines that will clearly cabin commercial
speech in a distinct category.” First Resort, Inc. v. Herrera,
860 F.3d 1263, 1272 (9th Cir. 2017) (internal quotation
marks and citations omitted).
To distinguish between commercial and non-commercial
speech, we apply the three-factor test derived from the
Supreme Court’s decision in Bolger v. Youngs Drug
Products Corp., 463 U.S. 60 (1983). We must determine
whether: (1) “the speech is an advertisement,” (2) “the
speech refers to a particular product,” and (3) “the speaker
has an economic motivation.” Hunt v. City of L.A., 638 F.3d
703, 715 (9th Cir. 2011) (citing Bolger, 463 U.S. at 66–67).
Each of these factors, standing alone, is insufficient to
determine that speech is commercial in nature, but when all
three are present, a conclusion that the speech at issue is
commercial is strongly supported. Bolger, 463 U.S. at 67;
see also Dex Media West, Inc. v. City of Seattle, 696 F.3d
952, 958 (9th Cir. 2012). When we consider these factors,
we look not only to the speech itself, but examine the entire
context in which it appears. See, e.g., Rubin v. Coors
Brewing Co., 514 U.S. 476, 481 (1995) (assuming that “the
information on beer labels constitutes commercial speech”).
The district court correctly concluded that the very core
of the Ordinance here—a prohibition on requiring disclosure
or making inquiries about criminal history generally on
rental applications—falls squarely within the realm of
commercial speech. Although not advertising per se, a rental
application at its core “does no more than propose a
commercial transaction.” United Foods, 533 U.S. at 409;

-- 32 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 33
see also Ariix, 985 F.3d at 1116 (“A publication that is not
in a traditional advertising format but that still refers to a
specific product can either be commercial speech — or fully
protected speech.”). A rental application allowing prospective
tenants to inspect a property and make inquiries about their
criminal history relates to a “specific product:” rental
housing. Bolger, 463 U.S. at 66.
As to Bolger’s third factor, “regardless of whether [the
parties] have an economic motivation . . . their regulated
speech can still be classified as commercial” under Bolger.
First Resort, 860 F.3d at 1273. However, in weighing this
factor, courts assess “whether the speaker acted primarily
out of economic motivation, not simply whether the speaker
had any economic motivation.” Ariix, 985 F.3d at 1116.
Here, the landlords’ inquiries about prospective tenants’
criminal history are primarily economically motivated.
Courts have generally found that speech associated with
deciding whether to engage in a particular commercial
transaction—such as extending a lease, obtaining credit
reports, or securing real estate—is motivated primarily by
economic concerns. For example, in San Francisco
Apartment Ass’n v. City & Cnty. of San Francisco, we held
that all of the speech between a landlord and a tenant about
entering into a buyout agreement was motivated primarily
by economic concerns because “it relates solely to the
economic interests of the parties and does no more than
propose a commercial transaction.” 881 F.3d 1169, 1176
(9th Cir. 2018); accord Campbell v. Robb, 162 F. App'x 460,
469 (6th Cir. 2006) (holding that statements “made by a
landlord to a prospective tenant describing the conditions of
rental” are “part and parcel of a rental transaction,” and thus
motivated primarily by economic concerns). Similarly, in
Anderson v. Treadwell, the Second Circuit determined that

-- 33 of 59 --

34 CHONG Y IM V. C ITY OF SEATTLE
New York regulations limiting in-person solicitations by real
estate brokers concerned commercial speech with a primary
economic motivation, even if the communications in
question included general “information regarding market
conditions, financing and refinancing alternatives, and
purchase/sale opportunities.” 294 F.3d 453, 460 (2d Cir.
2002).
Courts have also generally found that consumer credit
reports, compiled for the purpose of targeted marketing or
calculating interest rates, constitute commercial speech. In
Trans Union Corp. v. F.T.C., for example, the D.C. Circuit
held that restrictions on the sale of targeted marketing lists
based on consumer credit reports should be subject to
intermediate scrutiny because the reports were “solely of
interest to the company and its business customers.” 245
F.3d 809, 818 (D.C. Cir. 2001); see also Millstone v.
O’Hanlon Reports, Inc., 528 F.2d 829, 833 (8th Cir. 1976)
(“[C]onsumer credit reports . . . are ‘commercial speech.’”);
U.D. Registry, Inc. v. State of Cal., 50 Cal. Rptr. 3d 647, 660
(Cal. Ct. App. 2006) (assuming that “credit reports are
commercial speech” and collecting cases that show “other
courts have treated credit reports as commercial speech.”).
Moreover, courts have found that speech related to hiring
constitutes commercial speech. In Greater Philadelphia
Chamber of Commerce v. City of Philadelphia, for example,
the Third Circuit found that a potential employer’s questions
about a job applicant’s salary history were motivated
primarily by economic concerns “[b]ecause the speech
occur[ed] in the context of employment negotiations,” and
was thus “part of a proposal of possible employment.” 949
F.3d 116, 137 (3d Cir. 2020) (internal quotation marks
omitted); see also Valle del Sol, Inc. v. Whiting, 709 F.3d
808, 818 (9th Cir. 2013) (holding that provisions regulating

-- 34 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 35
the “hiring, picking up and transporting [of] workers”
impacted speech “soliciting a commercial transaction or
speech necessary to the consummation of a commercial
transaction”); Pittsburgh Press Co. v. Pittsburgh Comm’n on
Hum. Rel., 413 U.S. 376, 387 (1973) (concluding that
employers placing employment advertisements in sex-
designated newspaper columns was in “the category of
commercial speech”).
Here, landlords’ inquiries about a prospective tenant,
including their criminal history, are aimed at answering one
question: whether the applicant is one with whom the
landlords should enter into a commercial transaction that
will financially benefit them. Like the landlord in San
Francisco Apartment Association, a business seeking a
credit report in Trans Union, and the employer in Greater
Philadelphia, landlords ultimately use an applicant’s
criminal history to “propose a commercial transaction” and
further their own economic interests. San Francisco
Apartment Ass’n, 881 F.3d at 1176.
The landlords disagree, arguing that while landlords
might be primarily motivated by economic concerns when
they ask some questions on a rental application (for example,
questions about income, credit score or rental history), when
they ask about criminal history, they are primarily motivated
by concerns about their own safety and the safety of their
other tenants. For example, the Yims assert that they include
a question about potential tenants’ criminal history because
they live in one of the units of the triplex they rent out, and
they want to make sure their children are safe. Similarly,
Lyles asserts that she asks potential tenants about their
criminal history because she frequently interacts with
tenants in person, including to collect rent or fix problems in
the unit, and wants to ensure her safety. These

-- 35 of 59 --

36 CHONG Y IM V. C ITY OF SEATTLE
noncommercial interests, the landlords argue, are
“inextricably intertwined” with commercial interests. Riley
v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796
(1988).
However, while some landlords may have safety in
mind, as well as questions about financial risk and reliability,
all of the information they glean about applicants is used to
decide whether to enter into a commercial transaction with
them. There is no question that "the creation and
dissemination of information” is protected speech and
requiring disclosure of information is as well. Sorrell v. IMS
Health, Inc., 564 U.S. 552, 570 (2011). However, it is also
true that the particular information sought here—criminal
history—is input primarily for economic reasons. Indeed,
the Ordinance explicitly allows owners living “on the same
lot” or property as their tenants to inquire about and take
adverse action against prospective tenants based on criminal
history, presumably to allow landlords to address personal,
rather than economic, concerns. S.M.C. § 14.09.115(D).
And even landlord amicus stresses its economic interests in
obtaining prospective tenant’s criminal history, including
the “[c]osts associated with a single eviction,” occupancy
declines in rentals due to safety concerns, and security costs.
Br. of Amicus Curiae GRE Downtowner, LLC at 7 (“GRE
Downtowner Am. Br.”). The City has simply chosen to
remove the criminal history inquiry from the ultimate
commercial decision.
The landlords cannot identify one aspect of the
transaction between them and prospective tenants that is
noncommercial in nature. They therefore point to the
professional screening services provided by plaintiff RHA to
argue that speech between the landlords and RHA is not
commercial because RHA is not a party to the rental

-- 36 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 37
transaction. But, like the credit reports discussed in Trans
Union, RHA sells its screening services to landlords—at
various prices depending on the extent of the background
search—which RHA obtains through a third party. Thus, the
landlords are engaging in a separate commercial transaction
with an economic motive when they request the type of
screening package and purchase it for a particular
prospective applicant. The speech attendant to that
particular transaction—purchasing a criminal screening—is
speech “that does no more than propose a commercial
transaction.” United Foods, 533 U.S. at 409. It is therefore
“quintessential commercial speech,” as the district court
held.
Sorrell does not compel a contrary conclusion. As an en
banc panel of our court has held, nothing in Sorrell changes
the applicability of the Bolger test or the relevance of
Central Hudson. Retail Digital Network, LLC v. Prieto, 861
F.3d 839, 841, 847–48 (9th Cir. 2017) (en banc) (holding
that “Sorell did not modify the Central Hudson standard”
and that “content- and speaker-based” regulations of
commercial speech are subject to the same test as any other
kind of commercial speech). In Sorrell, the Supreme Court
considered a First Amendment challenge to a Vermont
statute which prohibited pharmaceutical manufacturers and
marketers from obtaining data from third parties about
doctors’ prescription practices for the purpose of marketing
the pharmaceutical companies’ products. 564 U.S. at 563–
64. The Court first held that the Vermont statute was a
“content- and speaker-based restriction,” and that “[t]he First
Amendment requires heightened scrutiny whenever the
government creates a regulation of speech because of
disagreement with the message it conveys.” Id. at 566, 571
(cleaned up). The Court then assumed without deciding that

-- 37 of 59 --

38 CHONG Y IM V. C ITY OF SEATTLE
the statute regulates commercial speech, applied the Central
Hudson test, and decided that the Vermont statute did not
survive intermediate scrutiny. Id. at 571. Far from creating
a per se rule that “a law that imposes content-and-speaker-
based restrictions” is noncommercial speech subject to strict
scrutiny, the Sorrell court applied intermediate scrutiny to
the law at issue, as the majority opinion does here.
Therefore, the Ordinance regulates commercial speech
and is subject to an intermediate standard of review, which
it fails to survive.
BENNETT, Circuit Judge, concurring in part and concurring
in the result:
I concur in the majority opinion, except for Part III.B.i
and footnote 16, and I concur in the result. I write separately,
however, because I would find that strict scrutiny applies
because the Ordinance, on its face, is a content- and speaker-
based restriction of noncommercial speech. And the
Ordinance clearly fails strict scrutiny.
I. Strict Scrutiny Applies
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), compels
the conclusion that strict scrutiny applies. In Sorrell, a
Vermont law “prohibit[ed] pharmacies . . . from disclosing
or otherwise allowing prescriber-identifying information to
be used for marketing” and barred “pharmaceutical
manufacturers and detailers from using the information for
marketing.” Id. at 563. The law allowed “pharmacies [to]
sell the information to private or academic researchers, but
not . . . to pharmaceutical marketers.” Id. (citation omitted).

-- 38 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 39
The Supreme Court held the law unconstitutional. Id. at
557. The Court found that the law enacted “content-[ ]and
speaker-based restrictions,” id. at 563, because it forbade
“sale subject to exceptions based . . . on the content of a
purchaser’s speech. For example, those who wish[ed] to
engage in certain ‘educational communications’ [could]
purchase the information. The measure then bar[red] any
disclosure when recipient[s] . . . [would] use the information
for marketing,” id. at 564 (citation omitted). “The statute
thus disfavor[ed] marketing, that is, speech with a particular
content.” Id. The law also “disfavor[ed] specific speakers”
such as pharmaceutical manufacturers, as they could not
“obtain prescriber-identifying information, even though the
information [could] be purchased or acquired by other
speakers with diverse purposes and viewpoints.” Id. Thus,
the Court held that “[t]he law on its face burdens disfavored
speech by disfavored speakers.” Id.
In holding the law unconstitutional, the Court rejected
Vermont’s argument that “heightened judicial scrutiny [was]
unwarranted because its law [was] a mere commercial
regulation.” Id. at 566. While recognizing that “the First
Amendment does not prevent restrictions . . . imposing
incidental burdens on speech,” the Court rejected Vermont’s
contention because Vermont’s law imposed “more than an
incidental burden on protected expression.” Id. at 567.
Thus, under Sorrell, a law that imposes content-and speaker-
based restrictions on noncommercial speech is subject to
strict scrutiny.
This case mirrors Sorrell. Just like the Vermont law,
which barred disclosure of prescriber-identifying
information to marketers but permitted disclosure to
researchers for educational communications, see id. at 563–
64, the Ordinance bars a group’s access to information that

-- 39 of 59 --

40 CHONG Y IM V. C ITY OF SEATTLE
is available to another group (landlords’ access to criminal
history, which is available to the public) and bans a group’s
use of such information for a certain purpose (landlords
evaluating prospective tenants). Indeed, this criminal
history information is available to everyone except a
landlord seeking information about a prospective tenant.1
Thus, as in Sorrell, the Ordinance is a content- and speaker-
based regulation.
And just like the Vermont law, the Ordinance does not
regulate commercial speech. When commercial speech is
“inextricably intertwined” with noncommercial speech it
“sheds its commercial character and becomes fully protected
speech.” Dex Media W., Inc. v. City of Seattle, 696 F.3d 952,
958 (9th Cir. 2012) (quoting Riley v. Nat’l Fed’n of the Blind
of N. Carolina, Inc., 487 U.S. 781, 796 (1988)). There are
plainly a substantial number of real-life instances when the
Ordinance regulates noncommercial speech. For example, it
would regulate when landlords ask third parties without
economic interests about prospective tenants. This would
include querying publicly available information, or even
doing a Google search for a prospective tenant’s prior
convictions. See Sorrell, 564 U.S. at 569 (quoting with
approval Los Angeles Police Dep’t v. United Reporting Pub.
Corp., 528 U.S. 32, 42 (1999) (Scalia, J., concurring) (“[A]
restriction upon access that allows access to the press . . . ,
but at the same time denies access to persons who wish to
use the information for certain speech purposes, is in reality
a restriction upon speech.” (alterations in original))). That
landlords have some commercial interests does not
1 The City does not (and cannot) deny plaintiffs’ contention that “[a]ll 50
states provide publicly available criminal background information for a
wide range of purposes.”

-- 40 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 41
transform every one of their inquiries about a prospective
tenant’s prior behaviors, including prior convictions for
violent crimes, into commercial speech. See id. at 566–67
(holding that a restriction on “speech result[ing] from an
economic motive” is not “a mere commercial regulation”).
A landlord who prioritizes the safety of other tenants through
inquiries about, for example, whether a prospective tenant
has ever been convicted of assaulting a fellow tenant, or
selling heroin to a fellow tenant’s child, is not engaging in
commercial speech simply because the landlord charges rent
to tenants.2 Because the Ordinance regulates
noncommercial speech, any commercial speech “sheds its
commercial character and becomes fully protected speech.”
Dex Media, 696 F.3d at 958.
In short, Sorrell controls, and our analysis should end
there. Indeed, because the Ordinance does not regulate
commercial speech, there is no need to apply the Bolger3
factors to the Ordinance at all. See IMDb.com Inc. v.
Becerra, 962 F.3d 1111, 1122 (9th Cir. 2020)
(acknowledging that the Bolger factors are relevant only if
there is a “close” question as to whether the speech at issue
is commercial). The Ordinance is a content- and speaker-
2 “[T]here is no need to determine whether all speech hampered by [the
Ordinance] is commercial,” Sorrell, 564 U.S. at 571 (emphasis added),
because “the entirety [of the regulated speech] must be classified as
noncommercial” if “pure speech and commercial speech” are
“inextricably intertwined,” id. (cleaned up). Thus, even if some inquiries
about the criminal records of prospective tenants could, as a theoretical
matter, be classified as commercial speech, such hypothetical
commercial speech is inextricably intertwined with an almost limitless
number of inquiries about the criminal records of prospective tenants that
are not remotely commercial in nature.
3 Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).

-- 41 of 59 --

42 CHONG Y IM V. C ITY OF SEATTLE
based restriction of noncommercial speech and so strict
scrutiny applies.
II. The Ordinance Necessarily Fails Strict Scrutiny
As the majority opinion holds, assuming without
deciding that intermediate scrutiny applies, the Ordinance
fails intermediate scrutiny. Maj. Op. at 18–20, 23–28. The
Ordinance then necessarily fails strict scrutiny, which I
believe is applicable. To reinforce that the Ordinance would
not survive strict scrutiny, I highlight other reasons why it
fails intermediate scrutiny.
A. The Ordinance does not directly advance the
City’s asserted interest because the Ordinance
contradicts that interest and is unconstitutionally
underinclusive.
Under Central Hudson Gas & Electric Corp. v. Public
Service Commission, 447 U.S. 557, 566 (1980), “we must
determine whether the regulation directly advances the
governmental interest asserted.” In doing so, “we must look
at whether the [challenged speech regulation] advances [the
asserted state] interest in its general application,” not limited
to the plaintiffs. Metro Lights, L.L.C. v. City of Los Angeles,
551 F.3d 898, 904 (9th Cir. 2009). “Another consideration
in the direct advancement inquiry is ‘underinclusivity[.]’ . . .
[Under Central Hudson,] a regulation . . . [with] exceptions
that ‘undermine and counteract’ the interest the government
claims it adopted the law to further . . . cannot ‘directly and
materially advance its aim.’” Id. at 904–05 (quoting Rubin
v. Coors Brewing Co., 514 U.S. 476, 489 (1995)). Thus,
“Central Hudson requires a logical connection between the
interest a law limiting commercial speech advances and the
exceptions a law makes to its own application.” Id. at 905.

-- 42 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 43
The City argues that people with criminal histories “tend
to struggle with housing,” and criminal records “are
disproportionately held by minorities.” The City argues that
the Ordinance directly advances its interest in “reduc[ing]
landlords’ ability to . . . deny[] tenancy based on criminal
history” by “reducing landlords’ ability to obtain applicants’
criminal histories.” In order to advance such an interest, this
protection must logically be extended to anyone with a
criminal history, regardless of the offense or disposition
involved. Consistent with this asserted position, the
Ordinance bars “any person” from “[r]equir[ing] disclosure
[of,] inquir[ing] about, or tak[ing] an adverse action against
a prospective occupant . . . based on . . . criminal history.”
Seattle, Wash., Municipal Code (S.M.C.) § 14.09.025(A)(2).
But the Ordinance permits all landlords to both inquire
about and take adverse action based on a prospective
occupant’s sexual offenses, which contradicts the City’s
stated interest in reducing housing discrimination against
those who have “already paid their debt to society.” While
the Ordinance prohibits anyone from requiring disclosure of,
inquiring about, or taking an adverse action against a
prospective occupant based on “criminal history,” the
Ordinance’s definition of criminal history “does not include
status registry information.” S.M.C. § 14.09.010. “Registry
information” is defined as “information solely obtained from
a county, statewide, or national sex offender registry.” Id.
Thus, the Ordinance allows any landlord to inquire about
whether a prospective occupant is a registered sex offender.
The Ordinance also permits “an adverse action based on
registry information of a prospective adult occupant” if a
landlord shows “a legitimate business reason” for the
adverse action. S.M.C. § 14.09.025(A)(3).

-- 43 of 59 --

44 CHONG Y IM V. C ITY OF SEATTLE
The Ordinance fails the direct advancement test due to
inconsistency, because it lacks “a logical connection
between the interest a law limiting commercial speech
advances and the exceptions a law makes to its own
application.” Metro Lights, 551 F.3d at 905. The City
asserts an interest in preventing “[c]riminal records [from]
being used . . . to reconvict . . . [those] who have already paid
their debt to society.” But the City fails to show why legal
protection based on such an interest should extend to some
people with criminal histories (for example, someone
convicted of murdering his previous landlords) but not to
others (sex offenders).
Indeed, the City’s own defense of its exclusion
highlights the inconsistency between its asserted interest and
the exclusion. According to the City, plaintiffs “overlook”
the fact that it “took a balanced approach . . . by requiring a
landlord to show that rejecting a person on the sex offender
registry ‘is necessary to achieve a substantial, legitimate,
nondiscriminatory interest’ by demonstrating a nexus to
resident safety in light of such factors as: the number, nature,
and severity of the convictions . . . .” (quoting S.M.C. §
14.09.010). If a landlord is permitted to exclude a sex
offender by showing “a nexus to resident safety,” why
should landlords not be allowed to exclude or even inquire
about, for example, prospective tenants convicted for
murdering their neighbors or previous landlords?4 Because
4 Plaintiffs cite City of Bremerton v. Widell, 51 P.3d 733, 739 (Wash.
2002), in which the court posited that if a landlord may be held liable for
the foreseeable criminal acts of third parties, “[i]t would seem only
reasonable that the landlord should at the same time enjoy the right to
exclude persons who may foreseeably cause such injury.” Under the
Ordinance, a landlord is forbidden from even the most routine due

-- 44 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 45
the Ordinance’s exceptions undermine the City’s stated
interests in curbing housing discrimination against those
with criminal histories and protecting resident safety, the
Ordinance fails the direct advancement test and thus fails
intermediate scrutiny. See Metro Lights, 551 F.3d at 905.
The Ordinance is also underinclusive in its treatment of
federally funded public housing. The relevant exemption
provision reads:
This Chapter 14.09 shall not be interpreted or
applied to diminish or conflict with any
requirements of state or federal law,
including but not limited to Title VIII of the
Civil Rights Act of 1968, the Federal Fair
Credit Reporting Act, 15 U.S.C. 1681 et seq.,
as amended; the Washington State Fair
Credit Reporting Act, chapter 19.182 RCW,
as amended; and the Washington State
Criminal Records Privacy Act, chapter 10.97
RCW, as amended. In the event of any
conflict, state and federal requirements shall
supersede the requirements of this Chapter
14.09.
S.M.C. § 14.09.115(A).
As the district court determined, this provision “appears
to exempt federally funded public housing providers from
the inquiry provision” of the Ordinance. Because the
Ordinance appears to exempt landlords of federally assisted
housing from the inquiry provision, the City defies its own
diligence as to prior convictions that could put any landlord on notice of
easily foreseeable violent criminal acts of certain prospective tenants.

-- 45 of 59 --

46 CHONG Y IM V. C ITY OF SEATTLE
asserted interest in reducing housing discrimination with
respect to prospective occupants of federally assisted
housing.
The Ordinance is also underinclusive (and illogical to the
point of irrationality) in that it allows inquiry as to criminal
conduct, but not criminal convictions. As counsel for the
City admitted at oral argument, a landlord can ask a
prospective tenant if he favors selling heroin to children or
assaulting his landlords, but not if he has ever had been
convicted of doing so. Oral Arg. at 28:12–28:38. It makes
no sense that, for example, a landlord could inquire about a
prospective tenant’s prior violent behavior or probability of
violent behavior toward fellow tenants, but could not inquire
about—and could not base a rental decision on—that same
prospective tenant’s multiple convictions for prior violent
behavior toward fellow tenants.
In sum, the Ordinance’s exceptions concerning
registered sex offenders undermine the City’s asserted
interests in resident safety and in reducing housing
discrimination. The Ordinance also does not advance the
City’s asserted interest in reducing housing discrimination
because it is underinclusive with respect to both prospective
occupants of federally assisted housing and inquiries about
criminal conduct rather than conviction. Thus, the
Ordinance “cannot directly and materially advance” the
City’s interests because the exemptions “undermine and
counteract the interest the government claims it adopted the
law to further,” and so fails intermediate scrutiny. Metro
Lights, 551 F.3d at 905 (citation and internal quotation
marks omitted).

-- 46 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 47
B. The Ordinance also does not survive intermediate
scrutiny because its speech restrictions are not
sufficiently narrow.
To survive intermediate scrutiny, the restriction “must
not be ‘more extensive than is necessary to serve [the alleged
state] interest.’” Metro Lights, 551 F.3d at 903 (quoting
Central Hudson, 447 U.S. at 566). For example, the rules
challenged in Zauderer v. Office of Disciplinary Counsel of
the Supreme Court of Ohio, 471 U.S. 626, 632 (1985)
“prohibit[ed] the use of illustrations in advertisements run by
attorneys” and “limit[ed] the information that [could] be
included in such ads to a list of 20 items.” Ohio argued that
the rules are “needed to ensure that attorneys . . . do not use
false or misleading advertising to stir up meritless litigation
against innocent defendants.” Id. at 643. The Supreme
Court held that the challenged rules were overbroad:
[A]cceptance of the State’s argument would
be tantamount to adoption of the principle
that a State may prohibit the use of pictures
or illustrations in connection with advertising
of any product or service simply on the
strength of the general argument that the
visual content of advertisements may, under
some circumstances, be deceptive or
manipulative. But . . . , broad prophylactic
rules may not be so lightly justified if the
protections afforded commercial speech are
to retain their force. We are not persuaded
that identifying deceptive or manipulative
uses of visual media in advertising is so
intrinsically burdensome that the State is
entitled to forgo that task in favor of the more

-- 47 of 59 --

48 CHONG Y IM V. C ITY OF SEATTLE
convenient but far more restrictive alternative
of a blanket ban on the use of illustrations.
Id. at 649.
Under Zauderer, the Ordinance’s restrictions on speech
are overbroad. The district court “accept[ed] Plaintiffs’
interpretation” that the Ordinance “prohibits landlords from
asking individuals other than prospective occupants about
[prospective occupants’] criminal history, and these
conversations are not commercial speech because they are
not proposals to engage in commercial transactions.” Thus,
the Ordinance bans a substantial amount of noncommercial
speech under the reasoning that some amount of commercial
speech (for example, questions in rental applications asking
prospective occupants directly about their criminal histories)
may contribute to housing discrimination against people
with criminal histories. Such a restriction is unconstitutionally
overbroad according to Zauderer. See 471 U.S. at 649.
The Supreme Court has emphasized the requirement that
commercial speech restrictions be no more extensive than
necessary especially when a restriction “provides only the
most limited incremental support for the interest asserted.”
Bolger, 463 U.S. at 73. In Bolger, the challenged restriction
on commercial speech “prohibit[ed] the mailing of
unsolicited advertisements for contraceptives.” Id. at 61. An
asserted government interest was “aiding parents’ efforts to
discuss birth control with their children.” Id. at 73. The
Supreme Court, despite recognizing the interest to be
“substantial,” found that the challenged law “provide[d] only
the most limited incremental support for the interest
asserted” and that “a restriction of this scope is more
extensive than the Constitution permits.” Id.

-- 48 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 49
Applying Bolger to this case reinforces that the
Ordinance’s restrictions on speech are overbroad. As
discussed above, the Ordinance does not directly and
materially advance the City’s asserted interests because its
exemptions undermine those asserted interests, just as the
law challenged in Bolger provided only “limited incremental
support for the interest asserted.” Id. And just as the Bolger
Court found that “purging all mailboxes of unsolicited
material that is entirely suitable for adults” to achieve such a
level of protection goes beyond what the Constitution
permits, id., banning a substantial amount of noncommercial
speech (contacting third parties without economic interests)
for the level of protection offered by the Ordinance is
unconstitutionally overbroad.
Central Hudson specifically held in its discussion of the
narrowness test that the government cannot “completely
suppress information when narrower restrictions on
expression would serve its interest as well.” 447 U.S. at 565.
The City thus cannot “completely suppress” one group of
citizens from accessing information that is freely available
to another group of citizens, when much narrower
alternatives to such a drastic measure would serve the City’s
asserted interests at least as effectively as the Ordinance
would.
As the plaintiffs argued, a narrower alternative would be
to permit landlords to inquire about prospective occupants’
criminal history, but to retain the Ordinance’s prohibition on
landlords taking adverse actions based on that information.
Because this narrower alternative would prohibit landlords
from discriminating against people with criminal histories, it
would advance the City’s objective of “regulat[ing] the use
of criminal history in rental housing.”

-- 49 of 59 --

50 CHONG Y IM V. C ITY OF SEATTLE
There is yet another narrower alternative.5 The City
conceded that the Ordinance permits landlords to inquire
about and to take adverse actions on the basis of whether a
prospective occupant is a sex offender. But the City asserted
that it “took a balanced approach,” requiring landlords to
“demonstrat[e] a nexus to resident safety” before taking
adverse actions based on sex offender offenses. Because
murdering a landlord or other tenants bears at least as heavily
on resident safety as sexual assault, the Ordinance could
permit landlords to inquire about, and take adverse actions
on the basis of, criminal history concerning certain violent
offenses (like the murder or assault of landlords or tenants)
or certain drug offenses (like selling heroin to children or
fellow tenants who were children), using the same “balanced
approach” that it uses for sexual offenses. This alternative
could enhance the City’s asserted interest in promoting
resident safety and would be a narrower speech restriction
than the Ordinance’s current form, as the alternative would
permit landlords to inquire about and act based on one
additional form of criminal offense.
* * *
The majority opinion holds that the Ordinance is
unconstitutional, assuming without deciding that
intermediate scrutiny applies. While I concur with that
determination, I believe that Sorrell requires us to apply
strict scrutiny because the Ordinance is a content- and
speaker-based restriction of noncommercial speech, and the
Ordinance clearly fails strict scrutiny.
5 This alternative assumes arguendo that the City should be allowed to
limit landlords’ access to prospective occupants’ criminal history
information.

-- 50 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 51
GOULD, Circuit Judge, concurring in part and dissenting in
part:
I am pleased to concur in Parts I, II, III(A), III(B)(i), and
IV of the majority opinion. I also agree with Judge Wardlaw
that Seattle’s inquiry provision regulates commercial speech
and is subject to intermediate scrutiny. I respectfully dissent,
however, from the majority’s conclusion that the inquiry
provision is not narrowly tailored, and from the resulting
judgment that the provision is unconstitutional.1 See Part
III(B)(ii). In my view, the opinion’s reasoning on this point
is unpersuasive and out of line with commercial speech
precedent. I would instead hold that the inquiry provision
survives intermediate scrutiny and affirm the district court in
full.
I
Along with Judge Wardlaw, I conclude that the inquiry
provision regulates commercial speech. The majority
opinion, assuming this point without deciding, dutifully
recites the familiar standards of such scrutiny: that Seattle
bears the burden of showing that the inquiry provision
“directly advances” a “government interest [that] is
substantial” in a way that “is not more extensive than is
necessary to serve that interest.” Op. at 19 (citations
omitted). And the opinion rightly concludes that the inquiry
provision directly advances Seattle’s two undisputedly
substantial interests: “reducing barriers to housing faced by
persons with criminal records and the use of criminal history
1 In light of today’s result, I also agree with the court that remand to the
district court to consider severability is appropriate. However, as I
conclude in this dissent that Seattle’s ordinance does not violate the
constitution, I contend that remand is unnecessary.

-- 51 of 59 --

52 CHONG Y IM V. C ITY OF SEATTLE
as a proxy to discriminate on the basis of race.” Op. at 20–
23.
Unfortunately, that’s when the opinion loses me. The
opinion goes on to say that Seattle’s inquiry provision is not
narrowly tailored because there are two other types of
housing ordinances that have recently been enacted by a
handful of other jurisdictions “to achieve the same goals of
reducing barriers to housing and racial discrimination as
Seattle.” Op. at 25. It then summarizes the provisions of
these ordinances, both of which allow landlords to access
some (or all) of a prospective tenant’s criminal record. Op.
at 25–27. It expressly reserves the question of whether these
alternative provisions are even constitutional, Op. at 25, but
nonetheless faults Seattle for allegedly “tenuous” reasoning
in declining to adopt an earlier version of its inquiry
provision that resembled these alternatives, Op. at 27–28. In
conclusion, the opinion holds that, because these alternatives
(1) “appear[] to meet Seattle’s housing goals,” but (2) are
“significantly less burdensome on speech,” they thus (3)
show that the inquiry provision is not narrowly tailored. Op.
at 28.
I respectfully do not join this line of reasoning as it raises
far more questions than answers about what exactly is wrong
with the inquiry provision. Below, I highlight the three main
areas where I contend the opinion falls short.
First, the opinion’s assertion that the alternative laws
“appear[] to meet Seattle’s housing goals” is all well and
good, but there is nothing in the record (or otherwise) from
which we could reasonably reach that conclusion. The fact
that five cities, one county, and the State of New Jersey
enacted these alternative measures in an attempt to address
some of the same issues as Seattle does not mean that they

-- 52 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 53
will “accomplish the same goals[.]” Op. at 23 (citing Ballen
v. City of Redmond, 466 F.3d 736, 743 (9th Cir. 2006)). In
fact, the majority identifies no data or evidence that these
alternatives have been, or will be, effective at all, let alone
as effective as Seattle’s inquiry provision. The opinion’s
reasoning rests entirely on one federal panel’s take as to what
works in housing policy based on summaries of statutes
alone. How is this anything other than a federal court
“second-guess[ing]” the considered judgment of a
democratically elected local government? Bd. of Trs. of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 478 (1989).
And it is a dubious take at that. If anything, it is more
reasonable to assume that the alternatives will be less
effective. Both alternatives permit landlords to access at
least some of a prospective tenant’s criminal history. Taking
seriously the notion that permitting landlords to access
criminal history would make it “extremely difficult to
enforce” the law’s prohibition on discrimination—as the
opinion does, albeit elsewhere, Op. at 23 n. 16 (emphasis
added)—these alternatives open the door for more
undetectable (and unenforceable) violations. How does the
mere existence of less effective alternative laws demonstrate
that there are “numerous and obvious less-burdensome
alternatives” that would accomplish the same goals as the
inquiry prohibition?2 City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 n. 13 (1993) (emphasis
added).
2 Moreover, the opinion is not even sold on the constitutionality of these
alternatives. They appear to raise distinct constitutional issues of their
own that are not before us, nor have been tested in any other court as far
as I can tell. The opinion does not persuade me that a law of uncertain
constitutionality is an “obvious” alternative.

-- 53 of 59 --

54 CHONG Y IM V. C ITY OF SEATTLE
Second, the opinion’s reasoning as to the inquiry
provision’s burden on speech is lacking. “In general,
‘almost all of the [commercial speech] restrictions
disallowed under [the narrow tailoring] prong have been
substantially excessive, disregarding far less restrictive and
more precise means.’” Hunt v. City of Los Angeles, 638 F.3d
703, 717 (9th Cir. 2011) (quoting Fox, 492 U.S. at 479)
(emphasis added). Courts have struck down only those laws
that go “much further than is necessary to serve the interest
asserted.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1765
(2017) (emphasis added) (holding law prohibiting
“trademarks like . . . ‘Down with racists,’ ‘Down with
sexists,’ ‘Down with homophobes’” was not narrowly
tailored to interest in preventing disparaging language from
disrupting the orderly flow of commerce); Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, 657
F.3d 936, 948 (9th Cir. 2011) (en banc) (holding law
“prohibit[ing] ‘signbearers on sidewalks seeking patronage
or offering handbills’” was not narrowly tailored to interest
in promoting the flow of traffic in the streets).3
On this front, the opinion takes issue with the fact that
the inquiry provision bars landlords from accessing records
of a prospective tenant’s recent or violent offenses. Op. at
27. But one of Seattle’s substantial interests is reducing
3 The same is true for the examples relied on by Judge Bennett’s partial
concurrence. See Zauderer v. Off. of Disciplinary Couns. of Supreme Ct.
of Ohio, 471 U.S. 626 (1985) (holding bans on illustrations and non-
approved information in attorney advertisements were not narrowly
tailored to interest in combatting manipulative advertisements intended
to stir up litigation); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
61, 73–74 (1983) (holding ban on “unsolicited advertisements for
contraceptives” was not narrowly tailored to interest in “aiding parents’
efforts to discuss birth control with their children.”).

-- 54 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 55
discrimination against anyone with a criminal record—not
just those with old or nonviolent records. Restricting access
to records of recent or violent offenses is at the core of, and
no less necessary to accomplishing, Seattle’s aims than
restricting access to older and less violent criminal records.
How is restricting access to information at the heart of the
discrimination that Seattle aims to eliminate “substantially
excessive” in relation to Seattle’s goals? Hunt, 638 F.3d at
717. How would excluding such records from the scope the
inquiry provision make Seattle’s law “more precise”? Id.
Finally, the opinion’s characterization of Seattle’s
reasoning in enacting the inquiry provision as “tenuous” is
unfounded. The record before us links to a public recording
of the hearing at which Seattle considered whether the
inquiry provision should include recent offenses.4 At this
hearing, the proponent of an amendment to include recent
offenses in the provision’s scope noted that (1) widespread
access to criminal records is a modern phenomenon, yet (2)
there was “no evidence” in the studies or other evidence
before the city that this change in access led to better (or
worse) outcomes for landlords or tenants. Accordingly, the
proponent reasoned that access to criminal records—new or
old—had only opened the door to unwarranted
discrimination. The record shows that several other
members of Seattle’s city council endorsed this view. After
a considered discussion, the change was adopted
unanimously, as was the ultimate legislation later.
4 City of Seattle, Civil Rights, Utilities, Economic Development, and Arts
Committee (Aug. 8, 2017), https://www.seattlechannel.org/mayor-and-
council/city-council/2016/2017-civil-rights-utilities-economic-develop
ment-and-arts-committee/?videoid=x79673 at 1:02:15–1:17:50.

-- 55 of 59 --

56 CHONG Y IM V. C ITY OF SEATTLE
What exactly about Seattle’s reasoning was “tenuous”?
It (roughly) echoes a line of reasoning familiar to this Court:
a conclusion reached after evaluating the results of a kind of
“natural experiment” created by a change in circumstances.
Cf. McShannock v. JP Morgan Chase Bank NA, 976 F.3d
881, 892 (9th Cir. 2020) (noting natural experiment created
by change of law in Second Circuit). Here, Seattle reached
its conclusion after comparing the evidence before it on the
state of the rental market before, and after, the advent of
widespread access to criminal records. The opinion may
disagree with Seattle’s read of this evidence, but it does not
explain how it came to that conclusion. That is an
unpersuasive basis for overruling Seattle’s considered effort
to tackle a vexing local issue.
II
I believe our precedent requires us to uphold the inquiry
provision. There is a “reasonable” fit between the inquiry
provision and Seattle’s aims. Fla. Bar v. Went For It, Inc.,
515 U.S. 618, 632 (1995). And Seattle’s version of the
inquiry provision is not “substantially excessive” in relation
to Seattle’s goals. Hunt, 638 F.3d at 717. The inquiry
provision restricts only landlords’ access to prospective
tenants’ criminal records—the precise information upon
which Seattle wants to stop landlord discrimination. It goes
no further. It does not bar landlord inquiries into a
prospective tenant's rental history, income history, character
references, job history, etc. A landlord could ask for
references from recent landlords. A landlord could ask
previous landlords “Hey, did this tenant ever do anything to
make you or your other tenants feel unsafe?” “These ample
alternative channels for receipt of information about”
prospective tenants’ ability to safely and successfully lease

-- 56 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 57
an apartment demonstrate that the law’s sweep is neither
disproportionate nor imprecise. Fla. Bar, 515 U.S. at 634.
The targeted nature of the inquiry provision is analogous
to a recent Third Circuit case upholding an inquiry
prohibition on prospective job applicants’ salary history.
Greater Phila. Chamber of Com. v. City of Phila., 949 F.3d
116, 154 (3d Cir. 2020). There, the Third Circuit held that
the law at issue was narrowly tailored to Philadelphia’s
interest in remedying wage discrimination and promoting
wage equity as the law “only prohibits employers from
inquiring about a single topic, while leaving employers free
to ask a wide range of other questions,” and it does so only
“at a specific point in time—after a prospective employee
has applied for a job and before s/he is hired[.]” Id. I believe
the Third Circuit’s reasoning is far more grounded in both
the facts of the case and in commercial speech precedent
than that of today’s result.
The alternatives offered by the landlords, and the
opinion, do not undermine the constitutionality of the
inquiry provision. For all the reasons set forth in the
opinion’s footnote 16, see Op. at 23 n.16, the landlords’
alternatives do not proportionately and adequately address
Seattle’s aims. And, as set forth in the preceding section,
there is no basis from which we could reasonably conclude
that the majority’s alternatives would achieve Seattle’s aims.
The alternatives simply do less. Here, the district court got
it exactly right:
Plaintiffs argue that [Seattle] should have
pursued different objectives: perhaps
allowing landlords to continue to reject any
tenant based on criminal history so long as
the landlord makes an individualized

-- 57 of 59 --

58 CHONG Y IM V. C ITY OF SEATTLE
assessment of each tenant's criminal history
or perhaps prohibiting landlords from
considering non-violent crimes or crimes
committed several years ago but allowing
them to consider recent crimes. Reasonable
people could disagree on the best approach,
but the Court's role is not to resolve those
policy disagreements; it is to determine
whether there are numerous obvious and less
burdensome methods of achieving the City's
objectives.
If the Court were to accept Plaintiffs’ logic, it
would mean that commercial speech
restrictions would rarely survive
constitutional challenge because plaintiffs
could always argue the government should
have applied a restriction to fewer people. If,
for example, the City had enacted Plaintiffs’
proposal to prohibit landlords from asking
about only crimes that were more than two
years old, another plaintiff could argue that it
should have been three years, or three-and-a-
half, or four, and so on.
Yim v. City of Seattle, 2021 WL 2805377, at *13–14 (W.D.
Wash. July 6, 2021). Today’s result opens the door to
exactly this kind of vicious cycle.
III
The record before us shows that Seattle’s elected
officials did precisely what intermediate scrutiny asks them
to do: “carefully calculate[] the costs and benefits associated
with the” inquiry provision. Discovery Network, 507 U.S. at

-- 58 of 59 --

CHONG Y IM V. C ITY OF SEATTLE 59
417 (cleaned up). Seattle’s representatives compiled and
considered data, studies, and public input on this issue. They
talked through their reasoning. And they ultimately reached
a consensus. The inquiry provision may or may not be “the
single best” solution to Seattle’s problems, Fox, 492 U.S. at
480, but it is a reasonable, informed, and targeted attempt.
That is all our precedent asks. For that and the foregoing
reasons, I respectfully dissent from the decision to strike
down the inquiry provision.

-- 59 of 59 --