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Chong Yim v. City of Seattle
Citation: Not availableDocket: 21-35567
Court: Court of Appeals for the Ninth Circuit; March 21, 2023; Federal Appellate Court
Original Court Document: View Document
The Ninth Circuit reversed in part and affirmed in part the district court's judgment regarding the City of Seattle’s Fair Chance Housing Ordinance, which prohibits landlords from inquiring about tenants' criminal histories and taking adverse actions based on that information. The plaintiffs, a group of landlords, alleged that the Ordinance violated their rights to free speech and substantive due process. The district court categorized the Ordinance as regulating commercial speech and applied intermediate scrutiny, concluding it was constitutional. However, the appellate panel determined that the inquiry provision of the Ordinance infringed on the landlords' First Amendment rights. While acknowledging the City's substantial interests in reducing barriers for individuals with criminal records and preventing racial discrimination, the panel found that the complete ban on discussing criminal history was not proportionate to these interests, failing intermediate scrutiny. The panel rejected the landlords' substantive due process claim related to the adverse action provision, determining that landlords do not possess a fundamental right to exclude tenants, and that this provision met the rational basis standard. The case was remanded to the district court to explore the Ordinance's severability due to its inclusion of a severability clause. Judge Wardlaw concurred, believing the speech regulated was commercial, while applying the three-factor Bolger test, concluding that the Ordinance also fails intermediate scrutiny. Judge Bennett, while concurring in the result, argued for the application of strict scrutiny based on Sorrell v. IMS Health Inc., asserting that the Ordinance constitutes a content- and speaker-based restriction on noncommercial speech. Judge Gould partially concurred and partially dissented regarding the majority opinion on the Seattle Fair Chance Housing Ordinance. He agreed with Parts I, II, III(A), III(B)(i), and IV, supporting Judge Wardlaw's view that the inquiry provision regulating commercial speech requires intermediate scrutiny. However, he disagreed with the majority's determination that the inquiry provision is not narrowly tailored and therefore unconstitutional. Instead, he argued that the provision withstands intermediate scrutiny and advocated for affirming the district court's ruling in full. The case arose after the City of Seattle enacted the Fair Chance Housing Ordinance, which prohibits landlords from inquiring about tenants' criminal histories or taking adverse actions based on such information. Plaintiffs, including small property landlords and a landlord trade association, challenged the Ordinance, claiming it violated their rights to free speech and substantive due process. The district court upheld the Ordinance's constitutionality. The majority found that the inquiry provision infringes upon the landlords' First Amendment rights and does not survive intermediate scrutiny, while the adverse action provision does not violate substantive due process rights, as landlords lack a fundamental right to exclude tenants. The court affirmed in part and reversed in part the district court's decision, remanding for further proceedings regarding the Ordinance's severability. The excerpt also highlights the challenges faced by individuals with criminal histories in securing housing, noting that approximately 90% of private landlords conduct background checks and nearly half would reject applicants with criminal records. Consequently, formerly incarcerated individuals are disproportionately affected by homelessness and housing insecurity, with significant numbers experiencing these issues shortly after release. Seattle is experiencing a housing crisis, with nearly 12,000 individuals homeless each night and long waiting lists for subsidized housing ranging from one to eight years. Criminal history screening complicates housing affordability by disqualifying financially capable individuals from rental opportunities, contributing to a 'prison to homelessness pipeline.' This instability leads to higher rates of recidivism, difficulties in securing stable employment, and limited access to healthcare, adversely affecting families and children, particularly those with incarcerated parents. The impact of criminal records disproportionately affects people of color, who experience higher arrest and incarceration rates due to discriminatory law enforcement practices. For instance, while Black individuals make up 6.8% of King County's population, they account for 36.6% of the jail population. This racial disparity extends to housing, where landlords' policies against renting to individuals with criminal histories can unintentionally discriminate against people of color. Evidence from a 2014 fair housing test indicated that minority testers were often questioned about their criminal histories compared to their white counterparts. Consequently, the unhoused population in Seattle is disproportionately Black (25%) compared to the city's overall Black demographic (7%). In response to these issues, the City enacted the Fair Chance Housing Ordinance in 2017 to reduce barriers for individuals with criminal records and curb discrimination against people of color within the housing market. The City enacted an Ordinance addressing racial inequities in the criminal justice system, linking them to racial bias in rental applicant selection and acknowledging that access to safe, affordable housing can reduce recidivism. The Ordinance prohibits landlords from requiring or inquiring about any criminal history of tenants or prospective tenants and bars adverse actions based on such information. Adverse actions include refusal to negotiate rental transactions, denial of tenancy, eviction, or applying different rental terms. There are four exceptions to the inquiry prohibition: landlords can inquire about sex offender status, the provision does not apply to federally assisted housing that mandates tenancy denial, it does not cover rentals of single-family homes occupied by the owner, and it excludes accessory dwelling units where the owner resides. Other cities, like Berkeley, Oakland, and Ann Arbor, have enacted similar legislation, while most jurisdictions still allow some consideration of criminal history. After the Ordinance's passage, local landlords and their trade organization challenged its constitutionality in court, claiming violations of their First Amendment rights and due process rights under both the federal and Washington State Constitutions. They contested the inquiry provision as an infringement on non-commercial speech and argued the adverse action provision violated their right to exclude individuals from their properties. Following the removal of the case to federal court, the parties agreed that discovery and trial were unnecessary and filed cross-motions for summary judgment along with a stipulated record. The district court certified three questions to the Washington State Supreme Court regarding the standards of review for state constitutional substantive due process rights, which were answered in January 2020. The Supreme Court held that Washington State substantive due process claims follow the same standards as federal claims, including those related to land use regulations. Consequently, the court determined that the standard for reviewing landlords' challenges to an Ordinance was rational basis review. On July 6, 2021, the district court granted summary judgment in favor of the City, upholding the Ordinance. Regarding First Amendment claims, the district court found that the landlords had standing to challenge the inquiry provision as it related to prospective tenants but not current tenants. The court held that the inquiry provision implicated the First Amendment but regulated commercial speech, subjecting it to intermediate scrutiny. The Ordinance was upheld as it advanced substantial interests and was narrowly tailored. On the substantive due process claim, the court concluded that the landlords' claimed right to rent to whomever they choose, subject to reasonable anti-discrimination measures, was not fundamental, thus subject to rational basis review, which it passed. The landlords filed a timely appeal, which is reviewed de novo. The appeal reiterates the argument that the inquiry provision violates the First Amendment concerning prospective tenants and asserts that the adverse action provision improperly interferes with their property rights. Before assessing the constitutionality of the inquiry provision, the court must clarify the scope of regulated speech. A dispute exists over the individuals the provision applies to, with the City asserting it restricts landlords from inquiring about their own prospective tenants' criminal histories, while landlords argue it broadly prohibits any inquiries into the criminal history of any prospective renter. The Ordinance defines 'person' broadly, indicating it applies to individuals and organizations, and prohibits inquiries into a prospective occupant’s criminal history, except under specified exceptions. Landlords contend that the definition of 'person' in the Ordinance broadly prohibits any inquiries into a prospective tenant's criminal history, not just by landlords or current occupants, but by anyone, including the City or journalists. Conversely, the City argues that 'person' should be limited to the landlord or occupant of the rental unit, supported by the Ordinance's title—'Fair Chance Housing Ordinance'—and its focus on reducing barriers in rental housing for individuals with criminal records. The interpretation must be contextual, and the Ordinance explicitly states that landlords cannot require disclosure of criminal history or take adverse actions based on it. The landlords' interpretation would unreasonably limit background checks in other areas, such as employment and firearm sales, which are permitted elsewhere in the Seattle Municipal Code. The text and purpose of the Ordinance indicate it is designed to prevent discrimination in housing based on criminal history. Additionally, the district court concluded that the Ordinance regulates commercial speech, applying intermediate scrutiny, while the parties on appeal dispute whether it should be classified as commercial or non-commercial speech, with implications for the level of scrutiny applied. The Ordinance fails to meet the intermediate scrutiny standard of review. Whether classified as regulating commercial or non-commercial speech, the analysis follows the framework established in Central Hudson Gas & Electric Corp. v. Public Service Commission. This framework requires courts to determine: (1) if the speech is lawful and not misleading; (2) if the government has a substantial interest in regulating the speech; (3) if the regulation directly advances that interest; and (4) if it is not more extensive than necessary. The Ordinance does not ban misleading speech but prohibits inquiries about public criminal records, which are generally lawful to obtain. Thus, it does not escape First Amendment scrutiny. The City's interests in reducing housing barriers for individuals with criminal records and preventing discrimination based on race are acknowledged as substantial. However, the Ordinance must directly and materially advance these interests. It is insufficient if it only provides weak support for the government’s aims. The City has identified real harms, such as homelessness among formerly incarcerated individuals and racial discrimination linked to criminal history. The critical question is whether the Ordinance's inquiry provision effectively addresses these issues. The evaluation includes the principle of underinclusivity, where exceptions in a law must logically align with the interests it seeks to promote. A previous Supreme Court case illustrates that a regulation allowing exceptions that counteract its goals cannot be deemed effective. Thus, the inquiry provision's effectiveness in meaningfully advancing the City’s stated objectives is in question, as it risks undermining its own aims through its exceptions. Landlords argue that the inquiry provision of the Ordinance fails to 'materially advance' the City’s interests due to its exception for federally assisted housing, which they claim makes it underinclusive. They assert that many individuals with criminal records possess federal housing vouchers, and thus a policy barring all landlords from inquiring about criminal histories would be more effective without the federal exemption. The Ordinance specifically states that its adverse action provisions do not apply to federally assisted housing, to comply with federal regulations that mandate denial of tenancy for certain convictions. This exemption is justified to prevent federal law from preempting the Ordinance, as federally assisted housing providers are required to deny tenancy based on certain criminal records. While the Ordinance may be more effective if applied universally, exempting federal landlords does not undermine the inquiry provision's effectiveness for private landlords and may actually enhance it by avoiding federal conflicts. However, the district court's characterization of the Ordinance as 'narrowly drawn' is disputed, as the government could achieve its goals with less restrictive measures. The landlords propose alternatives, including omitting the inquiry provision entirely, but argue that allowing access to criminal history without restrictions complicates enforcement and increases the risk of unconscious bias in the leasing process. Overall, the argument focuses on the balance between the Ordinance's effectiveness and its impact on First Amendment rights. Legislatures have a strong interest in preemptively addressing discrimination, as post-incident enforcement is often ineffective. In evaluating regulations, courts require that they be "narrowly tailored" to serve significant state interests, not necessarily the least restrictive means, but rather a reasonable fit. The City of Seattle must demonstrate that its inquiry provision, which prohibits discussions about criminal history between landlords and prospective tenants, was designed to effectively address housing access and racial discrimination by carefully weighing its costs and benefits. Landlords proposed alternatives like a certification program for individuals with criminal histories, which the City rejected due to its limited scope. They also suggested increasing public housing, but the costs of such initiatives would be prohibitive. The inquiry provision’s complete ban on criminal history discussions is deemed disproportionate to the goal of reducing racial discrimination and housing barriers. Other jurisdictions have enacted similar regulations but have not imposed such an absolute prohibition, indicating that Seattle's approach may be overly broad. Judge Gould’s dissent misinterprets the Ordinance’s objectives, suggesting a misunderstanding of the relationship between its intended outcomes and the means employed. The Ordinance aims to eliminate housing barriers for individuals with prior criminal records and reduce racial discrimination against people of color in the criminal justice system. However, the implementation of a near-total ban on inquiries into a tenant's criminal history is viewed as excessive compared to other jurisdictions that have adopted less restrictive measures. Various local ordinances allow landlords to conduct a preliminary screening without considering criminal history, followed by a criminal background check under specific conditions. For instance, Cook County allows consideration of convictions within the last three years, while San Francisco and Washington, D.C. allow consideration of convictions from the last seven years. New Jersey employs a sliding scale based on the severity and recency of offenses. Type II ordinances, like those in Portland and Minneapolis, permit landlords to evaluate applicants based on their entire criminal history or a limited subset of recent offenses, requiring a written explanation for any rejections. These approaches impose a lower burden on landlords than the Ordinance. The ordinances still enable landlords to inquire about serious recent offenses, which are crucial for tenant evaluation. Additionally, the Ordinance does not impose extra costs on the city, and there is evidence that Seattle considered narrower versions of the Ordinance but rejected them without substantial justification. The initial Seattle proposal allowed some inquiry into criminal convictions while prohibiting questions about non-convictions, pending charges, expunged records, juvenile records, and convictions older than two years. The Council's decision to implement a blanket ban on an inquiry provision was justified with the argument that a lack of historical background checks indicated no correlation between criminal history and tenant quality. However, advancements in screening technology, akin to the evolution of credit checks, have led landlords to prioritize tenant screening based on criminal history due to its perceived risks. The court found Seattle failed to provide a reasonable rationale for why less restrictive versions of the bill could not effectively reduce racial barriers in housing, leading to the conclusion that the inquiry provision is not narrowly tailored and does not meet intermediate scrutiny standards. The landlords also challenged the "adverse action provision" of the Ordinance, claiming it violated their Fourteenth Amendment Substantive Due Process right to exclude individuals from their property. They contended that strict scrutiny should apply since the right to exclude is fundamental. However, the Supreme Court has not recognized this right as fundamental under the Due Process Clause, though it has acknowledged it as a key aspect of property rights in takings contexts. The Washington Supreme Court aligns state substantive due process claims with federal standards, meaning the analysis remains consistent across both claims. In addressing whether the law infringes on a non-fundamental property right, rational basis review is applied. The landlords sought a heightened scrutiny standard based on the Lingle decision regarding the Takings Clause, but the court clarified that Lingle did not alter the scrutiny standard for substantive due process, which continues to be rational basis review for non-fundamental rights. In Samson v. City of Bainbridge Island, the Ninth Circuit ruled that to establish a substantive due process violation regarding an ordinance that does not affect a fundamental right, plaintiffs must demonstrate that the ordinance is "clearly arbitrary and unreasonable," lacking a substantial connection to public health, safety, morals, or welfare. The court referenced Shanks v. Dressel, which denied a substantive due process claim due to a failure to show government action was constitutionally arbitrary. For an ordinance to pass rational basis review, the government must present a legitimate reason for its enactment. In this case, Seattle cited two justifications: reducing housing barriers for individuals with criminal records and mitigating racial discrimination based on criminal history. The court found these justifications sufficient to uphold the adverse action provision against rational basis scrutiny. The Ordinance includes a severability clause, indicating that if any part is deemed invalid, the remainder remains effective. This creates a presumption of severability unless legislative intent suggests otherwise. The court noted that the parties should be allowed to present arguments regarding evidence that could counter this presumption, referencing Nat’l Mining Ass’n v. Zinke, which affirmed an unconstitutional yet severable provision. The court concluded by reversing part of the district court's decision, affirming another part, and remanding for further proceedings. Judge Wardlaw concurred, asserting that the Ordinance likely regulates commercial speech, which is defined as speech proposing a commercial transaction. The distinction between commercial and non-commercial speech involves a fact-driven analysis, utilizing a three-factor test from Bolger v. Youngs Drug Products Corp. to determine if the speech is an advertisement, refers to a specific product, and involves an economic motivation. The determination of whether speech is commercial relies on three key factors, which, when all present, strongly support the classification of the speech as commercial. While no single factor is sufficient on its own, the overall context of the speech is crucial. The case of the rental application is highlighted, as it fundamentally proposes a commercial transaction despite not being a traditional advertisement. The inquiry about tenants' criminal histories in rental applications is framed as commercial speech, primarily driven by economic motivations. Courts have established that communications between landlords and tenants regarding rental agreements or related transactions are predominantly economically motivated. This has been affirmed in various cases, including those where discussions about lease extensions and rental conditions are deemed commercial due to their economic nature. Additionally, consumer credit reports and targeted marketing lists are classified as commercial speech, warranting intermediate scrutiny under legal standards, as they primarily serve the business interests of companies and their clients. Consumer credit reports are classified as commercial speech, supported by multiple court rulings including U.D. Registry, Inc. v. State of Cal. and Greater Philadelphia Chamber of Commerce v. City of Philadelphia, which affirm that inquiries related to employment and commercial transactions fall under this category. In the context of landlord-tenant relationships, landlords' inquiries about prospective tenants' criminal histories are viewed as efforts to assess whether to engage in a commercially beneficial transaction. Despite landlords' claims that their motivations for asking about criminal history stem from safety concerns—since they may reside in close proximity to tenants—the primary purpose remains to evaluate the potential tenant for a commercial lease. This aligns with legal precedents that identify safety concerns as intertwined with economic interests, yet the ultimate goal of the inquiries is to facilitate a commercial transaction. The creation and dissemination of information in this context are protected under free speech principles, reinforcing that requiring disclosure of such information also falls under protected speech. Criminal history information is primarily sought for economic reasons, as stated in the Ordinance that permits landlords living on the same property as tenants to inquire about and potentially act against prospective tenants based on their criminal history. This provision enables landlords to address personal concerns, but the landlords primarily emphasize economic interests, such as costs related to evictions, occupancy declines due to safety issues, and security expenses. The City has opted to exclude criminal history inquiries from the commercial decision-making process. Landlords cannot present any non-commercial aspect of their transactions with prospective tenants and reference the screening services provided by the plaintiff, RHA, to argue that such interactions are not commercial since RHA is not a direct party to the rental transaction. However, RHA sells screening services to landlords for profit, indicating that landlords engage in a commercial transaction with RHA when purchasing these services for prospective applicants. Consequently, this transaction is characterized as "quintessential commercial speech." The Supreme Court case Sorrell does not alter this conclusion, as established by prior rulings that confirmed the applicability of the Bolger test and the relevance of Central Hudson for commercial speech regulations. The Sorrell decision involved a Vermont statute regulating pharmaceutical companies' access to doctors' prescription data, and while it required heightened scrutiny for content- and speaker-based restrictions, it still applied intermediate scrutiny to determine the statute's validity. As a result, the Ordinance, which regulates commercial speech, does not meet the necessary standard of review. Judge Bennett concurs with the majority opinion, with specific exceptions noted. Strict scrutiny applies to the Ordinance as it imposes content- and speaker-based restrictions on noncommercial speech, mirroring the Supreme Court's decision in Sorrell v. IMS Health Inc. In Sorrell, the Court found a Vermont law unconstitutional for prohibiting pharmacies from disclosing prescriber-identifying information to pharmaceutical marketers while allowing sales for educational purposes, thereby implementing discriminatory restrictions based on the content and identity of the speaker. The Court emphasized that the law imposed more than incidental burdens on protected expression, necessitating strict scrutiny. Similarly, the Ordinance restricts landlords' access to criminal history information, which is otherwise publicly available, for the specific purpose of evaluating prospective tenants. This regulation disallows landlords from using the information while permitting others to access it, thus establishing a content- and speaker-based regulation. The Ordinance does not regulate commercial speech; instead, when intertwined with noncommercial speech, it retains full protection, as established in Dex Media W. Inc. v. City of Seattle. The Ordinance's application to landlords’ inquiries about prospective tenants further illustrates its regulation of noncommercial speech. A restriction allowing press access while denying it to individuals seeking information for specific speech purposes is effectively a restriction on speech. Landlords' commercial interests do not convert their inquiries about tenants’ criminal backgrounds into commercial speech. The Supreme Court case Sorrell establishes that a restriction based on economic motives is not merely a commercial regulation. Inquiries focused on tenant safety, such as checking for prior violent crimes, remain noncommercial, even if the landlord charges rent. As the Ordinance regulates noncommercial speech, it is subject to strict scrutiny, as established by Dex Media. The Bolger factors, relevant only in ambiguous cases of commercial speech, are unnecessary here since the Ordinance affects noncommercial speech. Even if some inquiries could be deemed commercial, they are intertwined with noncommercial inquiries, classifying all regulated speech as noncommercial. The Ordinance fails strict scrutiny because it does not directly advance the City’s claimed interest, contradicts that interest, and is unconstitutionally underinclusive. Under the Central Hudson test, regulations must demonstrate that they advance the asserted governmental interest broadly, not just in specific instances. In Metro Lights, L.L.C. v. City of Los Angeles, the Ninth Circuit addressed the concept of "underinclusivity" in the context of regulations limiting commercial speech, citing Central Hudson's requirement for a logical connection between the government's interest and the exceptions within the law. The City of Seattle enacted an Ordinance aimed at reducing discrimination against tenants with criminal histories, asserting that such histories disproportionately affect minorities. To support this, the Ordinance bars landlords from requiring disclosure of or acting against applicants based on their criminal history, with the intent to reduce barriers for individuals who have served their sentences. However, the Ordinance allows landlords to inquire about and take adverse actions against applicants based on sexual offense registries, which contradicts the City's stated interest in preventing discrimination against those who have paid their debt to society. The definition of "criminal history" in the Ordinance excludes information from sex offender registries, thus permitting landlords to act against registered sex offenders without the same protections afforded to other individuals with criminal histories. The Ordinance's inconsistency fails the direct advancement test, as it does not logically connect the law's intent to reduce discrimination with its selective exemptions. The City’s rationale for allowing exclusions based on sex offender status highlights this inconsistency, as it requires landlords to show a legitimate business reason for adverse actions while simultaneously asserting a broad protective interest for other individuals with criminal histories. Landlords are restricted by an Ordinance from excluding or inquiring about prospective tenants with certain criminal histories, including severe offenses like murder. However, legal precedents, such as City of Bremerton v. Widell, suggest that landlords should have the right to exclude individuals who may pose foreseeable risks to others. The Ordinance is criticized for undermining the City’s goals of reducing housing discrimination and ensuring resident safety, failing to meet the requirements of intermediate scrutiny due to its direct advancement test shortcomings. The Ordinance contains an exemption for federally funded public housing, meaning such landlords can bypass the inquiry restrictions, which may contradict the City’s objectives regarding criminal history diligence. Furthermore, it allows landlords to inquire about current criminal conduct but prohibits questions about past convictions, creating an illogical scenario where landlords can ask about potential future criminal behavior but not about prior convictions. This inconsistency challenges the Ordinance's effectiveness in promoting safety and reducing discrimination, as it fails to directly and materially advance the City’s stated interests, rendering it underinclusive and counterproductive. The Ordinance fails to meet the criteria for intermediate scrutiny due to its overly broad speech restrictions. To pass this standard, any limitations must be narrowly tailored to serve a legitimate state interest. The cited case of Zauderer v. Office of Disciplinary Counsel illustrates this principle, as the Supreme Court deemed certain advertising rules for attorneys to be overbroad, emphasizing that the state cannot impose blanket bans on visual content based solely on potential for deception without demonstrating that such restrictions are necessary. In the current case, the Ordinance prohibits landlords from inquiring about prospective occupants’ criminal histories from individuals other than the applicants, which is identified as noncommercial speech. This restriction is overly broad as it bans a significant amount of noncommercial speech under the premise that some commercial speech may lead to housing discrimination. The Supreme Court has mandated that restrictions on commercial speech must be no more extensive than necessary, particularly when the regulation offers only minimal support for the asserted governmental interest. In applying the reasoning from Bolger, the Ordinance is found to not directly advance the City’s stated interests, as its exemptions contradict those interests, further reinforcing its overbroad nature. The Bolger Court determined that completely eliminating unsolicited material suitable for adults exceeds constitutional limits, indicating that a ban on significant noncommercial speech—such as communications by individuals without economic interests—under the Ordinance is unconstitutionally overbroad. The Central Hudson case emphasizes that the government cannot entirely suppress information when narrower restrictions could effectively achieve its goals. Consequently, the City cannot prohibit one group from accessing information available to another group without utilizing less drastic measures that could serve the City's interests. A proposed narrower alternative would allow landlords to inquire about potential tenants' criminal histories while still preventing discrimination based on that information, promoting the goal of regulating the use of criminal history in rental decisions. Additionally, the City acknowledged that landlords could take actions based on sex offender status but argued that a connection to resident safety must be demonstrated. The text suggests that similar reasoning could apply to certain violent and drug offenses, thus enhancing resident safety while imposing less restrictive measures than the current Ordinance. The majority opinion deems the Ordinance unconstitutional, presuming intermediate scrutiny applies; however, it is suggested that strict scrutiny should be applied due to the Ordinance's nature as a content- and speaker-based restriction on noncommercial speech, which it fails to meet. Judge Gould agrees with aspects of the majority opinion but dissents on the conclusion regarding the inquiry provision's narrow tailoring, arguing that it is, in fact, constitutional. The dissenting opinion argues that the majority's reasoning regarding the inquiry provision is flawed and inconsistent with commercial speech precedent. The dissent asserts that, under intermediate scrutiny, the inquiry provision is justified as it directly supports Seattle's significant interests in reducing housing barriers for individuals with criminal records and preventing racial discrimination. Although there is agreement that remanding the case to consider severability is appropriate, the dissent believes such a remand is unnecessary since it finds no constitutional violation in Seattle's ordinance. The dissent critiques the majority's conclusion that the inquiry provision is not narrowly tailored based on comparisons to alternative housing ordinances enacted in other jurisdictions. It highlights that the majority's assertion that these alternatives could achieve Seattle's housing goals lacks supporting evidence. The dissent emphasizes that the mere existence of these alternatives does not imply their effectiveness or that they would meet the same objectives as Seattle's approach. Furthermore, it expresses concern that the majority's reasoning reflects an inappropriate judicial second-guessing of a democratically elected local government’s decision-making. Overall, the dissent questions the credibility of the majority’s analysis and suggests that the alternatives might be less effective than the inquiry provision. Landlords can access some criminal history of prospective tenants under both proposed alternatives. However, these alternatives could lead to undetectable violations of discrimination laws, undermining enforcement efforts. The existence of less effective alternatives does not prove that there are "numerous and obvious less-burdensome alternatives" to the inquiry prohibition. Additionally, the constitutionality of these alternatives remains questionable and untested in other courts, making them not an "obvious" choice. The critique extends to the opinion's claim regarding the inquiry provision's burden on speech, asserting that previous rulings have invalidated commercial speech restrictions that are excessively broad without considering less restrictive means. Notably, the inquiry provision prohibits landlords from accessing records of recent or violent offenses, which is essential for Seattle's objective to reduce discrimination against individuals with criminal records. The argument that restricting access to such records is "substantially excessive" lacks justification, as it directly relates to Seattle's anti-discrimination goals. Lastly, the opinion's dismissal of Seattle's reasoning as "tenuous" is deemed unwarranted. Seattle's decision to amend its inquiry provision to include recent offenses was based on a public hearing where it was noted that while access to criminal records had increased, there was no evidence indicating this change improved outcomes for landlords or tenants. The proponent argued that such access facilitated unwarranted discrimination. This perspective was supported by other city council members, leading to a unanimous adoption of the amendment. The court's rationale for questioning Seattle's reasoning was deemed tenuous, as it echoed a familiar legal line of reasoning regarding natural experiments and changes in circumstances. Seattle's conclusion was based on an analysis of the rental market before and after the increase in access to criminal records. Although the opinion may disagree with Seattle's interpretation of the evidence, it failed to adequately justify why Seattle's approach should be overruled. The inquiry provision establishes a reasonable fit with Seattle's objectives by restricting landlords' access to criminal records while allowing inquiries into other tenant qualifications. This targeted approach prevents discrimination without being overly broad, as landlords can still obtain relevant information through alternative channels. The provision's targeted nature is compared to a Third Circuit case that upheld a similar restriction on employers' inquiries about salary history, reinforcing that such laws can be narrowly tailored to address specific issues without prohibiting a wide range of other relevant inquiries. Landlords' proposed alternatives do not adequately address Seattle's objectives regarding the inquiry provision. The district court correctly noted that these alternatives fall short and that reasonable disagreement exists over policy approaches, but the court's role is not to resolve such differences. Accepting the landlords' argument could lead to an endless cycle of challenges to commercial speech restrictions, as plaintiffs could continuously propose narrower regulations. The record indicates that Seattle's officials thoroughly evaluated the costs and benefits of the inquiry provision, considering data, studies, and public input, leading to a well-reasoned consensus. While the inquiry provision may not be the "single best" solution, it represents a reasonable and informed effort to meet the city's goals. Therefore, the dissent argues against the decision to invalidate the inquiry provision.