Ban the Box: Does a Law Prohibiting Discrimination because of a Tenant’s Criminal History Violate the First Amendment?

Federal Hill, Baltimore, by Marc Szarkowski is licensed under CC BY-NC-SA 2.0.

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction: What are Ban the Box Laws?

Would you feel comfortable knowing your next-door neighbor is a convicted felon? Would it make a difference if they were convicted of tax evasion, or aggravated assault? Embezzlement, or theft? Murder? What does a conviction tell you about how good of a neighbor or tenant a person might be?

Some cities are requiring landlords to take a critical look at the role criminal convictions play in their tenant screening process. The City of Seattle recently passed an ordinance prohibiting landlords from discriminating on the basis of, or even asking about, a rental applicant’s criminal history.[1] Known as “Ban the Box” or “Fair Chance” laws, these ordinances aim to break the cycle of chronic incarceration by promoting access to safe, affordable housing for ex-convicts and prohibiting policies that categorically exclude those with criminal convictions from applying to rent a property.

Seattle’s Fair Chance Housing Ordinance prohibits landlords from requiring disclosure of, asking about, or taking adverse action against a prospective occupant or tenant based on a criminal conviction.[2] The Ordinance grants an exception allowing landlords to take action against a tenant who appears on a sex offender registry if the landlord has a “legitimate business reason” to so act in relation to the protection of other residents or property.[3] The law also excepts landlords who rent to federal HUD voucher recipients, since HUD policy requires landlords to deny housing to families in which at least one member has previously been evicted from federal housing for drug-related criminal activity.[4]

While Ban the Box laws in employment applications have gained widespread acceptance in many states,[5] Seattle appears to be a trailblazer in expanding the policy to rental applications. Earlier this year, the city of Detroit followed suit and passed its own Fair Chance Housing law. Whether other cities or states adopt the trend remains to be seen. 

However, efforts to expand Ban the Box laws have not gone unchallenged. The Seattle ordinance is the subject of an ongoing challenge from a group of landlords in the case Yim v. City of Seattle.[6] The plaintiffs in Yim allege, among other things, that the ordinance violates landlords’ free speech rights under the First Amendment. This article will analyze the merits of that claim under current federal caselaw. This article will not focus on any state-specific issues, nor it analyze whether Ban the Box laws are an effective policy to combat housing discrimination.

II. Does Seattle’s Ban the Box Law Violate the First Amendment?

Opponents of the Seattle Fair Chance ordinance argue that, by preventing landlords from asking about an applicant’s criminal past, the law restricts speech and, therefore, violates landlords’ First Amendment rights. Speech regulations fall into two general categories which dictate the level of scrutiny courts apply under the First Amendment. First, content neutral regulations—laws that regulate the time, place, and manner of speech—will be upheld so long as they are narrowly tailored and serve a significant government interest.[7] Content based regulations, on the other hand, are presumptively unconstitutional and subject to strict scrutiny, the highest form of judicial review.[8] While most regulations fall into one of these two categories, there is a relevant sub-category of content based regulations which is subject to a less exacting form of scrutiny: commercial speech. Regulations on speech in commercial transactions will be upheld so long as they directly and materially advance a substantial state interest.[9]

Ban the Box laws are unquestionably content based restrictions on speech because they affect what landlords and third parties cannot say during the application process.  However, the inquiry does not end there; renting a property is a commercial transaction, and discussions affecting a landlord’s decision whether to rent to a prospective tenant solely affect the economic interests of the parties.[10] As such, a court analyzing a Ban the Box ordinance under the First Amendment should apply the intermediate scrutiny standard as laid out in the Central Hudson case.

Under the Central Hudson four-part analysis, to come within First Amendment protection: (1) the speech at issue must be about lawful activity and not be misleading; (2) the law must serve a substantial state interest; (3) the restriction on speech must directly advance that interest; and (4) the restriction should be no more extensive than necessary to serve that interest.[11]

A. Speech is not Misleading or Unlawful

 In its Motion for Summary Judgement in Yim, the City of Seattle made a rather perplexing argument that, because the ordinance regulates the disclosure of criminal history, it regulates “unlawful” activity, and thus does not run afoul of the First Amendment.[12] However, this assertion misses the mark of the first Central Hudson prong. That prong reaffirms the principle that speech which promotes illegal activity—like a job posting that says “women need not apply” when sex discrimination is illegal—is not afforded strong protection under the First Amendment.[13] While Seattle’s ordinance itself makes it illegal to ask about an applicant’s criminal activity, it would be circular to suggest that this means the ordinance regulates illegal speech. Thus, a court is likely to move past this threshold question and apply the remaining three prongs of the Central Hudson test.

B. Substantial State Interest

According to the Seattle Office for Civil Rights, the Fair Chance Housing Ordinance aims to help ex-convicts, who have served their time, reintegrate into society. Discrimination, housing, and criminal justice reform are quintessential state interests that are the constant target of government regulation efforts. Given that in Central Hudson itself, the Court found that encouraging fair electricity rates was a substantial state interest,[14] the weightier concern of housing discrimination in this case will almost certainly pass this prong as a substantial state interest.

C. Direct Advancement

A law which only tangentially achieves the claimed state interest will fail the third Central Hudson prong.[15] However, the Fair Chance Housing ordinance plainly advances the city’s claimed mission of facilitating housing for ex-convicts by prohibiting practices that categorically exclude ex-convicts from applying for housing. As applied to racial discrimination, the HUD’s Office of General Counsel released a memo in 2016 recognizing the connection between using convictions to screen rental applicants and disparate racial impact.[16]

There is one snag regarding this prong. The ordinance excepts landlords who provide federally assisted housing because federal law requires those landlords to deny applicants with certain kinds of convictions. Opponents could argue that this exception eviscerates the law’s purpose by subjecting potentially thousands of recipients of federal aid—and perhaps those most in need of protection by the law—to discrimination by necessity to comply with federal law. A city’s hands are tied on this matter as it has no power to overrule federal guidelines. A court could very well conclude that such a large exception frustrates the purpose of the entire scheme created by the law, and, thus, the ordinance does not directly advance the claimed interest.

D. Ends-Means Fit

The fourth prong of Central Hudson requires that the restriction on speech be no greater than necessary to serve the claimed state interest. This prong requires a court to look at how narrowly tailored the law is in achieving its stated purpose. Whether the ordinance passes this prong depends heavily on whether it passed the third prong, because if a court accepts that the law directly advances the interest in reducing housing discrimination against ex-convicts, then the law is plainly as restrictive as necessary to achieve that goal. After all, the best way to prevent landlords from discriminating based on a criterion is to prohibit landlords from asking about that criterion. However, if the court believes that the ordinance’s exceptions override its purpose, then those same exceptions would render the law underinclusive, because it permits a whole class of landlords to continue to discriminate based upon criminal convictions.

III. Conclusion

As Seattle battles with landlord advocacy groups in federal court over its ordinance, it remains to be seen whether the law will stand under both federal and Washington constitutional law. However, under the Central Hudson analysis, it seems unlikely that the Fair Chance Housing ordinance runs afoul of the First Amendment. It’s important to separate the speech issues with such an ordinance—the part of the law that bans a landlord from asking about a criminal conviction—from the main thrust of the ordinance, which is to prohibit discrimination on the basis of criminal convictions. Under a pure First Amendment challenge, only the speech component of the ordinance is challenged. Thus, whether it is wise policy to prohibit the use of criminal convictions in rental decisions is largely irrelevant to the question of whether Ban the Box laws violate the First Amendment.

[1]Fair Chance Housing Ordinance, Seattle Muni. Code Ch. 14.09.

[2]Seattle Muni. Code §1409.025(A)(2).

[3]Id. §14.09.010.

[4]See 24 C.F.R. §982.553.

[5]See e.g. Fair Chance Employment Act, Cal. Pub. Cont. Code Ann. § 10186 (West).

[6]No. C18-0736-JCC, 2018 WL 5825965 (W.D. Wash. Nov. 8, 2018).

[7]Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).

[8]Brown v. Entertainment Merchant’s Ass’n., 564 U.S. 786, 799 (2011).

[9]See Central Hudson Gas & Electric Co. v. Public Service Comm. Of New York, 447 U.S. 557 (1980).

[10]San Francisco Apt. Assn. v. City and County of San Francisco, 881 F.3d 1169, 1176 (9th Cir. 2018).

[11]Id. at 566.

[12]City’s Opposition and Cross Motion, Yim v. City of Seattle, No. C18-0736-JCC (W.D. Wash. Oct. 26, 2018).

[13]Pittsburgh Press Co. v. Pittsburgh Commn. on Human Rel., 413 U.S. 376, 388 (1973).

[14]Central Hudson, 447 U.S. at 568.

[15]Id. at 565.

[16]U.S. Dept. of Housing and Urban 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 (Apr. 4, 2016).


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