December 4, 2023
The court ruled the ordinance violated landlords' First Amendment rights after a lawsuit was filed by the RHA of Washington.

On Tuesday, the Ninth Circuit Court of Appeals allowed landlords to ask about prospective tenants’ criminal history, overruling a 2017 ordinance passed by the Seattle City Council.
The court ruled the ordinance violated landlords’ First Amendment rights after a lawsuit was filed by the Rental Housing Association of Washington.
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“This is public information, everybody can ask about it. The city asks about it, and landlords have a right to ask about it,” said Ethan Blevins on The Jason Rantz Show on KTTH. Blevins is an attorney and legal fellow with the Pacific Legal Foundation, which was involved in the initial suit to counter the ordinance.
The ordinance called Fair Chance Housing, was backed by then-City Councilmember Bruce Harrell, the city’s current mayor, to protect people with criminal histories from housing discrimination.
“There’s a lot of reasons why you might want to reject somebody who also has a criminal history,” Blevins said.
The second part of the ordinance is still in place, which prohibits the use of language excluding people with arrest records, conviction records, or criminal history when advertising available units.
“Is this something that can ultimately land in the Supreme Court?” Rantz asked.
“I think it’s a worthy issue for the Supreme Court for a couple of reasons,” Blevins replied. “And actually, the decision that came out the other day kind of highlights this because, unfortunately, when you’re speaking about commercial matters or speaking in the context of commerce, the First Amendment doesn’t protect you as much than if you were, for example, writing a blog about a political issue. I think the Supreme Court has been interested in sort of revisiting this question of whether or not people have full first amendment rights when they’re speaking in the context of a commercial transaction.”
Discrimination against those with criminal records is still illegal under the Washington Law Against Discrimination (WLAD,) but the ruling allows landlords to ask about criminal records as long as they do not deny housing only based on the record.
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“How would one prove that someone considered the criminal background of a potential tenant in declining their application?” Rantz asked.
“Well, the city has said we can’t prove it. So that’s why we have to borrow the information entirely,” Blevins responded. “I think that it is difficult, especially because people have a criminal background often have other red flags: Too poor credit scores, poor rental history. And those are all legitimate, perfectly legitimate reasons to say under current Seattle laws, we’ll see if they tried to say you can’t look at that either.”
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