In November, the Consumer Data Industry Association (CDIA) and the Professional Background Screening Association (PBSA) joined forces to submit an amicus brief in support of landlords’ First Amendment right to conduct criminal record background checks. The case is Yim v. City of Seattle, on appeal before the Ninth Circuit, challenging a Seattle ordinance that prohibits private landlords from conducting criminal background checks when screening prospective tenants. The amici argue that heightened scrutiny should apply to test the ordinance’s constitutionality and that criminal record background screening plays a vital role in ensuring public safety and helping private landlords run their businesses efficiently.

Three landlords and a rental housing trade association filed suit against the City of Seattle (the “City”) to challenge the City’s Fair Chance Housing Act ordinance. The ordinance makes it unlawful for private landlords to inquire about a tenant’s criminal or arrest record or to take adverse action on the basis of a criminal record. The plaintiffs argued that the ordinance is unconstitutional because it violates their substantive due process and free speech rights. The district court disagreed. Despite holding that the inquiry provision is a content-based regulation of speech, the court reasoned that it regulated only commercial speech, that it directly advances the City’s substantial interests of reducing barriers to housing and racial discrimination in housing, and that there was a “reasonable fit” between the inquiry provision and the City’s objectives. The plaintiffs’ appealed to the Ninth Circuit, where the CDIA and PBSA submitted an amicus curiae brief in their support.

The CDIA and PBSA, whose members include major consumer reporting agencies and background screening companies, argue that the Ninth Circuit should overturn the district court’s decision for three reasons: (1) tenant screening plays an important role in ensuring public safety, (2) the ordinance violates the First Amendment, and (3) the ordinance is preempted by the FCRA.

First, the amici emphasize how tenant screening reports allow private landlords to manage risks and promote public safety. They note that screening reports, and criminal background checks in particular, leverage race-neutral information on prospective tenants’ reliability and suitability for a particular property. This information enables landlords to manage risk when selecting new tenants and ensure the safety of existing tenants. Thus, tenant screening is vitally important for the smooth functioning of the economy and promotion of public safety.

Second, the amici argue that the district court should have applied heightened First Amendment scrutiny to the ordinance’s regulation of speech and should have held the ordinance unconstitutional as a result. The amici disagree with the district court’s finding that the ordinance only regulates commercial speech, but argue that even accepting that as true, heightened scrutiny is warranted. The amici argue that even under a commercial speech inquiry, the government has a heightened burden to justify a regulation that disfavors specific content and specific speakers. The ordinance, the amici argue, does just that by prohibiting the use of relevant public information by only a class of people (private landlords), while allowing a more favored class (federally funded landlords) to use the same information.

Finally, the amici argue that the ordinance, as applied to consumer reporting agencies (CRAs), is preempted by the FCRA. The amici explain that Seattle Office of Civil Rights has interpreted the ordinance to prohibit CRAs from furnishing criminal record tenant screening reports. This, the amici argue, directly conflicts with the FCRA’s regulation of CRAs and is therefore preempted.

Troutman Pepper will continue to monitor and provide updates on this case and others impacting the rights of CRAs and their users to furnish and utilize public record information.