An Unfair Chance for the Formerly Incarcerated: <i>Yim v. City of Seattle</i> and the Commercial Speech Doctrine

Formerly incarcerated persons face disproportionately challenging barriers to housing upon reentry; criminal records are used as a basis to deny otherwise suitable prospective tenants. In 2017, the City of Seattle passed the "Fair Chance Housing Ordinance," prohibiting landlords from relying on criminal history when evaluating prospective tenants. In 2023, the Ninth Circuit struck this provision down on the grounds that this complete ban violated Seattle landlords' constitutionally protected free speech rights. The circuit court held that the ordinance implicated commercial speech and failed to pass intermediate scrutiny review under the four-part test outlined in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The Ordinance was deemed "more extensive than necessary," and since other jurisdictions had less restrictive local laws that allowed landlords to consider some modicum of criminal history, Seattle's blanket ban could not stand. The commercial speech doctrine is a confusing area of constitutional law. This Note explores the inconsistencies of the Supreme Court's rulings on commercial speech. Commercial speech is subject to intermediate scrutiny review, but the Supreme Court has never completely articulated how lower courts should apply that standard of review. If a stricter interpretation is correct, then the Yim v. City of Seattle majority was right. If a more lenient standard is correct, then the Yim dissent was right. This Note argues that Yim exemplifies the collateral consequences of this ambiguous doctrine: Formerly incarcerated persons continue to be punished long after serving their sentences.