Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 1 of 22

Hon. Richard A. Jones

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IN THE UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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RENTBERRY, INC., a Delaware
corporation, and Delaney Wysingle, an
individual,

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) Civil Action No. 2:18-cv-00743-RAJ
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PLAINTIFFS’ RESPONSE TO
Plaintiffs,
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CROSS-MOTION FOR SUMMARY
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JUDGMENT
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v.
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NOTE ON MOTION CALENDAR:
The City of SEATTLE, a Washington
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municipal corporation,
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October 19, 2018
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ORAL ARGUMENT REQUESTED
Defendant.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
SUPPLEMENTAL STATEMENT OF FACTS ............................................................................. 1
ARGUMENT .................................................................................................................................. 2
I.
Delaney Wysingle and Rentberry have standing to challenge the moratorium .................. 2
A.

Wysingle’s claims are justiciable.................................................................................. 3

1.

Wysingle suffered a concrete injury .......................................................................... 3

2.

Wysingle’s claim is not moot .................................................................................... 7

B.

Rentberry has third-party standing to raise First Amendment concerns on behalf of
itself and its users .......................................................................................................... 8

P.’s Response to Mtn. for Summ. J. - i
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 2 of 22

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II.

The moratorium restricts speech ....................................................................................... 10

III.

The moratorium fails intermediate scrutiny...................................................................... 13

A.

The moratorium does not directly advance the City’s interests .................................. 13

B.

The moratorium is more extensive than necessary ..................................................... 16

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES

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Page

Cases
44 Liquormart v. Rhode Island, 517 U.S. 484 (1996) ...................................................... 11, 12, 17
Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002 (9th Cir. 2003) .............. 3, 4
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) .............................................. 6
Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011) ................................................. 15
Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) .......................................................... 4, 7
Dep’t of Prof. Reg. Bd. of Accountancy v. Rampell, 621 So. 2d 426 (Fla. 1993)......................... 12
Edenfield v. Fane, 507 U.S. 761 (1993) ....................................................................................... 13
Eisenstadt v. Baird, 405 U.S. 438 (1972) ....................................................................................... 9
Epona v. City of Ventura, 876 F.3d 1214 (9th Cir. 2017)............................................................... 9
Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) ............................................ 12
Florida Star v. B.J.F., 491 U.S. 524 (1989) ................................................................................. 16
Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) .............................................................. 3
Gallman v. Pierce, 639 F. Supp. 472 (N.D. Cal. 1986) .............................................................. 7, 8
IMDb.com, Inc. v. Becerra, 257 F. Supp. 3d 1099 (N.D. Cal. 2017) ........................................... 14
Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) ................................................................... 3, 4, 6
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...................................................................... 10
Mendoza v. Frenchman Hill Apartments Ltd. P’ship, No. CV-03-494,
2005 WL 6581642 (E.D. Wash. Jan. 20, 2005) ........................................................................... 7
Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) ...................................................... 7
P.’s Response to Mtn. for Summ. J. - ii
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10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 3 of 22

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N.A.A.C.P. v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984) .................................................... 7

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Nat’l Ass’n of Tobacco Outlets, Inc. v. Providence, R.I., 731 F.3d 71 (1st Cir. 2013) ................ 11

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National Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617 (2018) ............................................ 10

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Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004) ............................... 8

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Publius v. Boyer-Vine, 237 F. Supp. 3d 997 (E.D. Cal. 2017) ....................................................... 9

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Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) ................................................................ 13

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Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781 (1988).................................................. 15

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Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ...................................................................... 16

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Santa Monica Food Not Bombs v. City of Santa Monica (Food Not Bombs),

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450 F.3d 1022 (9th Cir. 2006) .............................................................................................. 3-4, 8

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Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) ........................................ 8

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Southwestern Bell Tel., L.P. v. Moline, 333 F. Supp. 2d 1073 (D. Kan. 2004) ............................ 13

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Spirit Airlines, Inc. v. U.S. Dep’t of Transp., 687 F.3d 403 (D.C. Cir. 2012) .............................. 11

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Thompson v. Western States Medical Center, 535 U.S. 357 (2002)............................................. 17

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Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) ........................................................... 1

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Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).............................................. 9

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Virginia State Bd. of Pharmacy v. Virginia Consumers Council, 425 U.S. 748 (1976) ...... 4, 11-12

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Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) ............................................................... 15

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Other Authorities

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Hayek, Friedrich, The Use of Knowledge in Society,

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35 The American Economic Review 519 (1945) ...................................................................... 11
Seattle Municipal Code

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SMC § 7.24.020 ......................................................................................................................... 10

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SMC § 7.24.090.A ....................................................................................................................... 3

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P.’s Response to Mtn. for Summ. J. - iii
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 4 of 22

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INTRODUCTION

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The City slapped an up to two-year-long moratorium on the use of rental bidding platforms,

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candidly admitting that it is “uncertain” whether a ban on such sites furthers any legitimate

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government interest. That is not how the First Amendment works. When censorship is at issue, the

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First Amendment requires the City to produce evidence that it needs to stifle speech before it is

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permitted to do so. See Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994)

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(government must do more than “posit the existence of the disease sought to be cured” before

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imposing a speech restriction).

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Perhaps recognizing this black-letter law, the City now attempts to narrow the Ordinance.

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But even under the City’s reading, the moratorium imposes a ban on soliciting and posting bids on

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rental housing. Communicating a bid is protected commercial speech. The moratorium must

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therefore satisfy intermediate scrutiny, which it cannot do because of its underinclusive reach, its

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speculative approach to speech regulation, and its failure to use less-restrictive alternatives.

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Contrary to the City’s argument, Wysingle and Rentberry both have standing to bring this

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First Amendment claim. Wysingle suffered a concrete injury of being deprived the use of bidding

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platforms to seek a tenant for his vacant rental property, an injury that he could reasonably face

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again during the course of the moratorium, and Rentberry can raise a First Amendment claim on

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behalf of its users and itself because its communications platform is cut off from the Seattle market.

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SUPPLEMENTAL STATEMENT OF FACTS

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Rentberry incorporates by reference the Statement of the Case in Plaintiffs’ Motion for

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Summary Judgment (Plaintiffs’ MSJ), Dkt. # 22 at 1-4, but several facts deserve additional

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emphasis. First, even if the moratorium only prohibits Rentberry’s bidding feature, landlords still

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cannot post advertisements on Rentberry without violating the moratorium. Rentberry’s auctioning

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technology cannot be turned off or removed for particular users or markets. Declaration of Oleksiy

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Lyubynskyy in Support of Motion for Summary Judgment, Dkt. # 22-5 ¶ 5 (Lyubynskyy Decl.).

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Bidding is an integral part of Rentberry’s business model and software. Id. Like other online

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platforms such as Ebay that depend on bidding for their core functionality, Rentberry simply
P.s’ Response to Mtn. for Summ. J. - 1
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 5 of 22

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cannot function without the bidding component. Hence, a landlord cannot post an advertisement

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on Rentberry without including the bidding feature, and applicants cannot apply without placing a

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bid. See id.

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Second, Wysingle had a clear intent to use Rentberry if not for the moratorium. Wysingle

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testified in his declaration and his deposition that he wanted to use Rentberry to advertise the

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property once the unit was ready to rent. Declaration of Delaney Wysingle dated 8/11/18 in support

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of Motion for Summary Judgment, Dkt. #22-4 ¶ 4 (Wysingle Decl.); Wysingle Deposition

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Transcript at 37-38 (Exhibit 6). To that end, he explored Rentberry’s website on multiple occasions

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and called to speak with Rentberry personnel about the site. Exhibit 6 at 38, 54, 68-69.

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Wysingle understood, however, that he could not use Rentberry’s rental bidding platform

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because the moratorium forbade use of the nonseverable bidding feature. See Wysingle Decl. ¶ 4.

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Thus, instead of advertising his home as he wished, he opted to post his advertisement on Zillow,

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which lacks a bidding feature. Id. ¶ 5. On August 17, 2018, he entered into a ten-month lease

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agreement with a new tenant. Declaration of Ethan Blevins in Support of Motion for Summary

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Judgment ¶ 6 (Blevins Decl.).

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ARGUMENT

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I.

Delaney Wysingle and Rentberry have standing to challenge the moratorium

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The City’s justiciability arguments are contrary to the undisputed evidence. It is undisputed

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that Wysingle had a vacancy during the course of the moratorium and wanted to use Rentberry’s

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bidding platform to fill that vacancy. Wysingle Decl., Dkt. # 22-4 ¶¶ 3-4. He was injured because

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the moratorium prevented him from communicating with prospective tenants using Rentberry’s

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bidding functionality. Nor is Wysingle’s claim moot, since he could easily have another vacancy

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during the course of the moratorium and the uncertain duration of the tenancy means that his injury

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is capable of repetition yet evades review.

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The City also argues that Rentberry lacks standing because the moratorium does not

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regulate any of Rentberry’s speech. This is incorrect—Rentberry has third-party standing, which

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allows Rentberry to represent the interests of its users in court. Rentberry also has suffered its own
P.s’ Response to Mtn. for Summ. J. - 2
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10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 6 of 22

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injury because it cannot operate its website (which both communicates on its own and facilitates

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communication among others) in the Seattle market. 1
A.

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Wysingle’s claims are justiciable
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Wysingle suffered a concrete injury

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Wysingle has standing to challenge the Ordinance’s infringement of his speech rights. The

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Ninth Circuit has held on many occasions that “First Amendment cases raise ‘unique standing

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considerations,’ that ‘tilt[] dramatically toward a finding of standing.’” Lopez v. Candaele, 630

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F.3d 775, 781 (9th Cir. 2010) (emphasis added) (citing Ariz. Right to Life Political Action Comm.

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v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003), and LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th

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Cir. 2000)). In the context of First Amendment cases, the Ninth Circuit has explained that facial

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constitutional challenges come in two varieties: First, a plaintiff seeking to vindicate his own

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constitutional rights may argue that an ordinance “is unconstitutionally vague or . . . impermissibly

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restricts a protected activity.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998).

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Second, “an individual whose own speech or expressive conduct may validly be prohibited or

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sanctioned is permitted to challenge a statute on its face because it also threatens others not before

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the court.” Hunt v. City of Los Angeles, 638 F.3d 703, 710 (9th Cir. 2011). “The former sort of

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challenge . . . may be paired with the more common as-applied challenge, where a plaintiff argues

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that the law is unconstitutional as applied to his own speech or expressive conduct.” Santa Monica

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Food Not Bombs v. City of Santa Monica (Food Not Bombs), 450 F.3d 1022, 1033-34 (9th Cir.

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2006) (citations omitted); see also Foti, 146 F.3d at 635.

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The moratorium states: “Landlords and potential tenants are prohibited from using rental

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housing bidding platforms for real property located in Seattle city limits.” SMC § 7.24.090.A. This

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affects a landlord’s speech interests in several respects. First, it prevents landlords from soliciting

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bids. Second, it prevents landlords from receiving tenants’ bids. Supreme Court caselaw is clear

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The City bristles at the moniker “website ban,” but the uncontroverted record evidence shows that the moratorium
bars any use of Rentberry for advertising and applying for Seattle properties because landlords cannot advertise
properties on Rentberry without the bidding feature, and tenants cannot apply without posting a bid. Lyubynskyy
Decl., Dkt # 22-5 ¶ 5. In a very real and practical way, the moratorium bans the use of a website.

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P.s’ Response to Mtn. for Summ. J. - 3
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 7 of 22

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that the First Amendment’s protection is afforded “to the communication, to its source and to its

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recipients both.” Virginia State Bd. of Pharmacy v. Virginia Consumers Council, 425 U.S. 748,

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756 (1976).

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Wysingle plainly expressed his intent to use Rentberry to advertise his property and use

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the bidding feature during the summer of 2018, while the Ordinance remains in effect, to find a

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new tenant. Complaint, Dkt #1 ¶¶ 17-18; Wysingle Decl., Dkt # 22-4 ¶¶ 3-4; Exhibit 6 at 20, 37.

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Had the Ordinance not prohibited Wysingle from using Rentberry, he would have done so already.

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Wysingle Decl., Dkt # 22-4 at ¶ 4; Exhibit 6 at 32.

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This is more than sufficient to establish standing under Clark v. City of Lakewood, 259

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F.3d 996, 1006 (9th Cir. 2001), in which the owner of three closed adult businesses established

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standing by submitting a declaration that “if the Ordinance is declared unconstitutional, ‘it is my

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intent to reopen my business.’” Id. at 1008. This sufficed even though Clark’s business license

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expired and he did not apply for a new license or renew his old one. Id. at 1006. Likewise,

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Wysingle’s injury is caused by the moratorium preventing him from using rental bidding platforms

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and that injury will be resolved if the moratorium is struck down. He does not need to go through

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the futile process of subscribing to a service that he cannot use in order to establish his standing—

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it suffices that he plans to use it if the moratorium is struck down.

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Additionally, in Food Not Bombs, 450 F.3d at 1034, and Bayless, 320 F.3d at 1006, the

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Ninth Circuit held that standing for First Amendment claims exists where a pre-enforcement

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plaintiff shows that he altered his expressive activities to comply with the statutes at issue and

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alleges apprehension that those statutes would be enforced against him. See also Lopez, 630 F.3d

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at 790. Here, Wysingle stated that he wanted to communicate with potential tenants via

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Rentberry’s rent-bidding platform but, fearing prosecution under the Ordinance, he advertised on

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Zillow (which does not have a bidding feature) instead. 2 Wysingle Decl., Dkt # 22-4 ¶ 5. This

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“[I]t would turn respect for the law on its head for us to conclude that [a plaintiff] lacks standing to challenge the
provision merely because [the plaintiff] chose to comply with the statute and challenge its constitutionality.” Bayless,
320 F.3d at 1007.
2

P.s’ Response to Mtn. for Summ. J. - 4
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 8 of 22

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alteration in his expressive activities establishes his standing to challenge the Ordinance as a

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violation of his First Amendment rights.

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The City hopes to deny Wysingle a hearing to vindicate his First Amendment rights. The

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City’s arguments, however, rely on mischaracterizations of undisputed evidence and pertinent

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caselaw. The City claims that, at the time Wysingle filed his Complaint, he was not subject to the

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Ordinance because he did not have a rental unit available to let, and therefore lacks standing. Opp.

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and XMSJ, Dkt. # 26 at 10:15-17. This is false. The Ordinance took effect on April 29, 2018, and

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the Complaint was filed on May 23, 2018. During that time, Wysingle’s Cloverdale rental property

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was vacant 3 and undergoing renovation in preparation for Wysingle’s search for a new tenant.

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Wysingle Decl., Dkt. # 22-4 ¶¶ 1-2.

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The City also argues that Wysingle did not suffer an injury because he lacked a “specific

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timeframe” by which he planned to rent out his home. Opp. and XMSJ, Dkt. # 26 at 10:21-22; see

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also id. at 4:17-19. This mischaracterizes Wysingle’s testimony. When asked for a date by which

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he planned to list the property for rent, Wysingle testified that he was unsure of an exact date

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because he was at the mercy of the contractors, but he then said, “I’m guessing by the end of the

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month [July].” Exhibit 6 at 20. In fact, this plan was realized when he completed renovations on

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August 4, within a week of his estimate. Wysingle Decl., Dkt. # 22-4 ¶ 5.

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The City also incorrectly states that Wysingle did not have concrete plans to use Rentberry.

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See Opp. and XMSJ, Dkt. #26 at 11:6-7. This claim contradicts both his signed declaration and his

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deposition testimony. His declaration states that he would use Rentberry to list his property but for

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the moratorium. Wysingle Decl., Dkt # 22-4 ¶ 4. He corroborated this statement in his deposition

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testimony, stating that “my goal is to use the bidding platform.” Exhibit 6 at 37. Wysingle also

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described multiple visits to bidding platform websites and even phone calls with Rentberry staff,

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fortifying his testimony that he wants “to give the bidding process a try.” Exhibit 6 at 38, 54, 68-

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69. He also described, in response to repeated questions, multiple features that he wished to use

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The previous tenant’s lease was to have expired on May 31, 2018, but the tenant broke his lease in February and
paid through the end of March. Wysingle Decl., Dkt # 22-4 ¶ 2.
3

P.s’ Response to Mtn. for Summ. J. - 5
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 9 of 22

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on Rentberry, including the bidding feature. See, e.g., id. at 59-60. Wysingle thus clearly

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demonstrated a concrete intent to use Rentberry. 4

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The City’s standing argument relies on Lopez v. Candaele, 630 F.3d 775, a case that is

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noteworthy for its dramatic differences from this case. See City’s Opp. and XMSJ, Dkt. # 26 at

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10-14. In that case, a community college student made a speech in a Speech 101 class that

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advocated marriage only between a man and a woman, a thesis that the professor found profoundly

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offensive. Lopez, 630 F.3d at 782-83. Plaintiff Lopez alleged that he feared adverse consequences

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based on the school’s sexual harassment policy, in violation of his First Amendment rights. Id. at

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784. The Ninth Circuit first explained the generous standing doctrine applied to First Amendment

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plaintiffs: In pre-enforcement cases, the plaintiff must demonstrate “a realistic danger of sustaining

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a direct injury as a result of the statute’s operation or enforcement.” Id. at 785 (quoting Babbitt v.

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United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). A plaintiff demonstrates a “realistic

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danger” by “alleging an intention to engage in a course of conduct arguably affected with a

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constitutional interest, but proscribed by a statute, and . . . a credible threat of prosecution

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thereunder.” Id. (quoting Babbitt, 442 U.S. at 298) (alteration in original). Lopez failed to establish

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any of the standing factors, but most critically, he failed to show that anyone at any time made

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even the slightest suggestion that his speech implicated the sexual harassment policy, including

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Lopez’s own attorney in pre-litigation correspondence to the school. Id. at 790.

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By contrast, there’s no question that Wysingle owns property within the city of Seattle that

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he wished to advertise and rent via Rentberry’s bidding platform during the operative dates of the

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Ordinance. The threat of enforcement is clear from the City of Seattle’s website. A section of the

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website for the Seattle Department of Construction & Inspections entitled “Codes We Enforce (A-

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Z)” 5 includes the “Rent Bidding” ordinance challenged in this lawsuit. The lack of prosecutions to

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The City also puts great emphasis on an inaccurate statement made in Wysingle’s withdrawn declaration in which
he mistakenly stated that his house was still occupied in May 2018, when in fact it had been vacated in February 2018.
Opp. and XMSJ, Dkt. # 26 at 4:17-21. The City does not explain how this trivial misstatement about which month
Wysingle’s prior tenant vacated the premises bears in any way on this dispute. In any case, Wysingle’s signed
declaration accompanying his motion for summary judgment corrects this oversight. See Wysingle Decl., Dkt. # 22-4
¶ 2.
5
https://www.seattle.gov/dpd/codesrules/codes/default.htm.
4

P.s’ Response to Mtn. for Summ. J. - 6
Case No. 2:18-cv-00743-RAJ

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Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 10 of 22

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date cannot prevent an affected landlord from challenging the Ordinance. Cf. Minnesota Voters

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Alliance v. Mansky, 138 S. Ct. 1876, 1896 (2018) (Sotomayor, J., dissenting) (constitutionality of

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political apparel ban decided on the merits although “there is no evidence that any individual who

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refused to remove a political item has been prohibited from voting, and respondents maintain that

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no one has been referred for prosecution for violating the provision”).

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2.

Wysingle’s claim is not moot

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Wysingle’s claims are not moot because his injury could easily recur, and the injury is

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capable of repetition yet evading review. Under the mootness doctrine, “courts look to changing

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circumstances that arise after the complaint is filed” that strip a plaintiff of “a legally cognizable

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interest in the outcome.” Clark, 259 F.3d at 1006, 1011. A case is not moot if another injury is

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foreseeable. In Clark v. City of Lakewood, for instance, the closure and license expiration of the

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adult cabaret did not moot the case because Clark’s “stated intention is to return to business.” Id.

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at 1006, 1012. Similarly, Wysingle would have used Rentberry’s rent-bidding platform but for the

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Ordinance and would do so again if the Ordinance were declared unconstitutional and his rental

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property again became vacant. See Wysingle Decl., Dkt. # 22-4 ¶¶ 3-4.

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Likewise, a claim is not moot if the injury previously suffered is capable of repetition yet

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evades review, often because of a timeframe that is too brief to fully litigate the claim before the

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injury temporarily subsides. See N.A.A.C.P. v. City of Richmond, 743 F.2d 1346, 1353 (9th Cir.

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1984). Several courts in the Ninth Circuit have recognized that tenancy issues fit neatly into this

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“capable of repetition, yet evading review” exception. See Mendoza v. Frenchman Hill Apartments

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Ltd. P’ship, No. CV-03-494, 2005 WL 6581642, at *3 (E.D. Wash. Jan. 20, 2005); Gallman v.

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Pierce, 639 F. Supp. 472, 480 (N.D. Cal. 1986). The length of vacancies are unpredictable but

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likely to be short in a tight market like Seattle’s, demonstrating that Wysingle’s claim is “capable

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of repetition, yet evading review,” because (1) “the duration of the challenged . . . injury [is] too

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short to be fully litigated; and (2) there [is] a reasonable likelihood that [he] will be subject to the

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action again.” N.A.A.C.P., 743 F.2d at 1353. Wysingle’s previous tenant broke his lease, creating

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an unexpected vacancy that lasted for a period of only a few months. Wysingle Decl., Dkt. # 22-4
P.s’ Response to Mtn. for Summ. J. - 7
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 11 of 22

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¶¶ 2, 5. That is not enough time to litigate the constitutional issues created by the moratorium. See

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Gallman, 639 F. Supp. at 480 (“A period of a month, and certainly of three days, is a very brief

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time in which to litigate” constitutional issues arising from the end of the tenancy.). It is reasonable

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to contemplate such an event happening again unexpectedly before expiration of the one-or-two-

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year moratorium.

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Indeed, it is easily foreseeable that the moratorium will be extended by another year, in

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which case Wysingle’s current 10-month lease term will expire during the moratorium even absent

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early termination. The City Council has discretion to extend the moratorium if the Council needs

9

more time to review the study or the relevant departments need more time to complete it. SMC

10

§ 7.24.090.C. Rentberry, through counsel, has made repeated requests to find out what progress

11

the departments have made in the study mandated by the City Council. Blevins Decl. ¶ 5; Exhibits

12

7 and 8. So far, the City has not responded with any evidence that the departments have even

13

embarked on this mandate. Id. Given the City’s failure to come forth with evidence halfway into

14

the moratorium’s first year, it is reasonable to expect that the moratorium will be extended.

15

Wysingle’s claims are not moot.
B.

16

behalf of itself and its users

17

In addition to Wysingle’s justiciable claim, 6 Rentberry has third-party standing to raise this

18
19

Rentberry has third-party standing to raise First Amendment concerns on

First Amendment claim on behalf of its users and standing in its own right.

20

In assessing standing, courts may properly consider whether a “third party has sufficient

21

injury-in-fact to satisfy the Art. III case-or-controversy requirement” and whether that “third party

22

can reasonably be expected to properly frame the issues and present them with the necessary

23

adversarial zeal.” Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984).

24

Third-party standing is most appropriate in a First Amendment case like this one, because courts

25

have recognized that a strict application of the traditional rules of standing “would have an

26
27

With Wysingle’s standing established, the Court has no need to inquire further about the injury-in-fact standing of
Rentberry. Food Not Bombs, 450 F.3d at 1034; Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918 (9th
Cir. 2004).
6

P.s’ Response to Mtn. for Summ. J. - 8
Case No. 2:18-cv-00743-RAJ

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Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 12 of 22

1

intolerable, inhibitory effect on freedom of speech.” Eisenstadt v. Baird, 405 U.S. 438, 445 n.5

2

(1972); see Epona v. City of Ventura, 876 F.3d 1214, 1220 (9th Cir. 2017) (allowing wedding

3

venue to bring First Amendment claim on behalf of potential customers who were required to

4

obtain a permit for wedding events).

5

Here, Rentberry has third-party standing to challenge the City’s Ordinance in federal court.

6

As Seattle admits, the Ordinance prohibits landlords and tenants from using Rentberry’s online

7

platform. Opp. and XMSJ, Dkt. # 26 at 12. The Ordinance thus inflicts a direct First Amendment

8

injury on countless landlords and tenants in Seattle—an injury that Rentberry is entitled to assert.

9

See, e.g., Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1009 n.5 (E.D. Cal. 2017) (owner and

10

operator of webpage has third-party standing to assert the rights of its users).

11

Further, Rentberry has standing in its own right. As its chief executive officer noted in his

12

declaration, Rentberry’s auctioning technology cannot be turned off—landlords and tenants cannot

13

decline to use the bidding feature on the site. Lyubynskyy Decl., Dkt. # 22-5 ¶ 4. The City fails to

14

provide any evidence to controvert Rentberry’s declaration. The City argues consistently that

15

“Rentberry’s non-litigation documents do no [sic] refer to its auctioning technology as key or

16

central to how its website functions,” Opp. and XMSJ, Dkt. # 26 at 13 n.7, but, in the very next

17

sentence, acknowledges a Rentberry whitepaper that explains Rentberry’s bidding technology is

18

“part of Rentberry’s Unique Selling Proposition.” Id. With help from the City, Rentberry has

19

provided uncontroverted evidence that its bidding technology is a fundamental part of what makes

20

Rentberry unique. Bidding is what defines Rentberry’s business model and technological platform,

21

and it is not severable from the website. Moreover, Rentberry has First Amendment interests in

22

disseminating its proprietary software, which the City has barred from being used in Seattle. See

23

Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445-46 (2d Cir. 2001) (computer code is

24

protected by the First Amendment).

25

The City specifically called out Rentberry as a platform targeted by this moratorium. Asha

26

Venkataram, CB 119198: Prohibiting Use of Rental Bidding Platforms (Mar. 7, 2018), Dkt. # 22-

27

3 at 1. Article III empowers Rentberry to defend itself and its users against such a targeted
P.s’ Response to Mtn. for Summ. J. - 9
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 13 of 22

1

regulation. See Melendres v. Arpaio, 695 F.3d 990, 999 (9th Cir. 2012) (individuals targeted by

2

government policy have Article III standing to raise constitutional claims).

3

II.

The moratorium restricts speech

4

The rent-bidding moratorium restricts speech because (1) it applies to advertisements of

5

Seattle properties posted on a rent-bidding website; and (2) it bars landlords and tenants from

6

soliciting or posting bids related to those advertisements.

7

The moratorium applies to any “rental bidding housing platform,” defined as “a person that

8

connects potential tenants and landlords via an application based or online platform to facilitate

9

rental housing auctions wherein potential tenants submit competing bids on certain lease

10

provisions.” SMC § 7.24.020. As Rentberry’s opening brief explained in a careful analysis of the

11

text, the moratorium’s plain language bans use of a whole platform, not just a particular function

12

on the platform. See Plaintiffs’ MSJ, Dkt. # 22 at 8-9. The definition of “rental bidding platform”

13

underscores the plain meaning of platform by defining it as a “person” operating the features on a

14

site, not just a specific feature. SMC § 7.24.020.

15

The City does not respond to Rentberry’s textual analysis, nor does the City offer any

16

alternative analysis. In contrast to Rentberry’s straightforward reading of the text, the City relies

17

upon one declaration from a low-level compliance officer who has worked for the City for less

18

than a year as its sole basis for arguing that “plaintiffs grossly misconstrue the Ordinance.” City’s

19

Opp. and XMSJ, Dkt. # 26 at 6; Declaration of Jessica Long, Dkt. # 28 ¶ 2. Certainly, the

20

compliance officer’s declaration might serve as evidence about the likelihood of prosecution

21

(although the Seattle Department of Construction and Inspections is clear that it is actively

22

enforcing the Ordinance), but her declaration cannot transform the plain text, particularly when

23

neither the City’s brief nor the declaration actually analyze the Ordinance’s language. See National

24

Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617, 631 (2018) (a court relies on the plain language

25

of a statute, especially where the government chooses to ignore it, rather than confront it).

26

After its conclusory treatment of the text, the City misrepresents the evidence by insisting

27

that individuals can legally post advertisements on Rentberry—they just cannot solicit or post bids.
P.s’ Response to Mtn. for Summ. J. - 10
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 14 of 22

1

Yet Rentberry has presented uncontroverted evidence that it is impossible to advertise properties

2

on Rentberry without the bidding feature. Lyubynskyy Decl., Dkt. # 22-5 ¶ 2 (“[A] landlord cannot

3

refuse to receive custom offers from tenant-users. The bidding feature is an integral component of

4

the site.”). Thus, the City’s repeated assurance that Seattle landlords like Wysingle can use

5

Rentberry to advertise their properties is false, even if the City’s narrow reading of the moratorium

6

as applying only to bidding is correct.

7

Regardless, the moratorium still restricts speech by preventing Rentberry’s users from

8

soliciting or posting a bid on Rentberry’s site. 7 Bidding is protected commercial speech. The

9

Supreme Court has held on multiple occasions that communicating a price offer enjoys First

10

Amendment protection. See, e.g., 44 Liquormart v. Rhode Island, 517 U.S. 484, 489 (1996) (retail

11

price advertising of alcoholic beverages is protected speech); Virginia State Bd. of Pharmacy, 425

12

U.S. at 756 (holding that quoting a price for prescription medication is protected speech); see also

13

Nat’l Ass’n of Tobacco Outlets, Inc. v. Providence, R.I., 731 F.3d 71, 76-77 (1st Cir. 2013)

14

(“Pricing information concerning lawful transactions has been held to be protected speech by the

15

Supreme Court.”); Spirit Airlines, Inc. v. U.S. Dep’t of Transp., 687 F.3d 403, 412 (D.C. Cir. 2012)

16

(price advertising is “quintessentially” commercial speech). These cases did not just hold that

17

communication about a price is protected—the protection extends to the listing of the price itself.

18

It was in the context of a restriction on price advertising that the Supreme Court said: “As to the

19

consumer’s interest in the free flow of commercial information, that interest may be as keen, if not

20

keener by far, than his interest in the day’s most urgent political debate.” Virginia State Bd. of

21

Pharmacy, 425 U.S. at 763. Price is a key component of the commercial communication that

22

buyers and sellers live by. See Friedrich Hayek, The Use of Knowledge in Society, 35 The

23

American Economic Review 519, 526-27 (1945) (describing the “true function of the price

24

mechanism” as a means “for communicating information” about the market).

25
26
27

The City’s claim that the “entirety of plaintiffs’ argument departs from a false premise stemming from a misreading
of the Ordinance” misses the mark. Opp. and XMSJ, Dkt. # 26 at 6. The centerpiece of Rentberry’s claim has always
focused on bidding. All the parties agree that the Ordinance restricts bidding, and Rentberry has consistently argued
that bidding is protected speech that the City cannot restrict without satisfying First Amendment standards.
7

P.s’ Response to Mtn. for Summ. J. - 11
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
(425) 576-0484

 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 15 of 22

1

The City, despite clear precedent to the contrary, insists that quoting a price is conduct, not

2

speech. But posting a bid for a rental unit is just as much an act of communication as quoting a

3

price for a prescription drug in Virginia State Board of Pharmacy or advertising the price of alcohol

4

in 44 Liquormart. Virginia State Bd. of Pharmacy, 425 U.S. at 757; 44 Liquormart, 517 U.S. at

5

489; see also Dep’t of Prof. Reg. Bd. of Accountancy v. Rampell, 621 So. 2d 426, 428 (Fla. 1993)

6

(“By prohibiting CPAs from competitive bidding, the Department restricts economic expression

7

constituting commercial speech.”). Posting a bid is not a “business transaction,” but instead

8

provides valuable information that facilitates an anticipated transaction. This is the very definition

9

of speech that “propose[s] a commercial transaction.” Va. State Bd. of Pharmacy, 425 U.S. at 776.

10

In fact, because the bidding process is reciprocal, it has stronger communicative content than

11

posting a unilateral price in advertising. 8

12

The City tries to downplay the moratorium as nothing more than a regulation on price. Yet

13

there is a well-established difference between regulating a price and regulating a party’s right to

14

communicate a price. See Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017)

15

(“In regulating the communication of prices rather than prices themselves, § 518 regulates

16

speech.”). Contrary to the City’s hyperbolic concern that Plaintiffs’ arguments would saddle all

17

economic regulation with First Amendment scrutiny, this case follows the clear distinction

18

supported by caselaw between price regulations and speech regulations related to price, whether

19

that “price speech” be via advertisement or bid. See Va. State Bd. of Pharmacy, 425 U.S. at 756

20

(“[T]he protection afforded is to the communication, to its source and its recipients both.”).

21

Because the City mislabels bidding as commercial conduct, much of the First Amendment

22

caselaw that it relies upon is inapposite. The City, for instance, writes at some length about

23

incidental burdens on speech and expressive conduct, as in cases such as Rumsfeld v. FAIR, 547

24

U.S. 47 (2006). See Opp. and XMSJ, Dkt. # 26 at 16. But bidding is not expressive conduct—it is

25

speech. All the cases the City cites about expressive conduct, cases involving payment of wages

26

Inexplicably, the City claims that the “Plaintiffs never even attempt to explain how participating in an online action
is an expressive act.” Opp. and XMSJ, Dkt. # 26 at 16. To the contrary, in the complaint, in the withdrawn Motion for
Preliminary Injunction, and in the Motion for Summary Judgment, Plaintiffs extensively argued that soliciting and
posting bids constitute commercial speech. See Complaint, Dkt. #1 ¶¶ 9, 31-32, 50; Plaintiffs’ MSJ, Dkt. # 22 at 5-7.

27

8

P.s’ Response to Mtn. for Summ. J. - 12
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 16 of 22

1

or short-term rental booking services, are immediately distinguishable on this simple basis. See id.

2

Likewise, the City’s argument that it lacked a censorial motive is irrelevant; when a law regulates

3

speech on its face, the government’s motive does not matter to the First Amendment analysis. Reed

4

v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015) (“In other words, an innocuous justification

5

cannot transform a facially content-based law into one that is content-neutral.”).

6
7

III.

The moratorium fails intermediate scrutiny

A.

The moratorium does not directly advance the City’s interests

8

Under intermediate scrutiny applicable to commercial speech restrictions, the City carries

9

the burden of demonstrating that the moratorium directly advances a substantial government

10

interest. Edenfield v. Fane, 507 U.S. 761, 767 (1993). There are three fundamental problems with

11

the moratorium under this direct advancement step: (1) the alleged harms that the City seeks to

12

curtail are speculative; (2) the moratorium is not logically related to the City’s asserted interest in

13

studying rental bidding platforms; and (3) the moratorium is underinclusive with respect to rental

14

bidding. See Plaintiffs’ MSJ, Dkt. # 22 at 14-17.

15

Now backpedaling from the Ordinance’s admission that the moratorium is patently

16

speculative in nature, the City claims that it has sufficient evidence that Rentberry causes the harms

17

the City feared. This claim contradicts the Ordinance itself, in which the City directs multiple

18

departments to embark on a one-or-two year study to discover whether rental bidding platforms

19

are harmful. Ordinance 125551, Dkt. # 22-1 at 3-4. The Ordinance’s plain language establishes

20

that the City did not have sufficient evidence—the moratorium’s recitals expressly state that the

21

City is “uncertain” whether rental bidding platforms will hurt the Seattle housing market or

22

contravene local regulations. Id. at 1:23-25. See also Southwestern Bell Tel., L.P. v. Moline, 333

23

F. Supp. 2d 1073, 1083 (D. Kan. 2004) (“The party seeking to uphold the restriction on commercial

24

speech carries the burden of justifying it. A governmental entity may not meet its burden on this

25

issue by presenting evidence that consists of nothing more than mere speculation and conjecture.”).

26

The moratorium supposedly serves the City’s interest in discovering whether a more lasting

27

speech restriction is necessary. This is akin to California’s speech restriction on the Internet Movie
P.s’ Response to Mtn. for Summ. J. - 13
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 17 of 22

1

Database, where California candidly admitted that it did not yet have evidence of the harm it

2

feared. IMDb.com, Inc. v. Becerra, 257 F. Supp. 3d 1099, 1102 (N.D. Cal. 2017). The district court

3

responded: “Restrict speech first and ask questions later, the government seems to say. This

4

ignores the First Amendment’s heavy presumption against restricting speech of this kind.” Id. So

5

it is with the City here—it has imposed a speech burden before discovering the information that it

6

admits it needs to justify regulating rental-bidding platforms.

7

The evidence that the City now cites in its opening brief is the same evidence that the City

8

Council considered and found to be inadequate to draw a firm conclusion regarding harm.

9

Ordinance 125551, Dkt. # 22-1 at 1:23-25. 9 Moreover, the City has not posited any evidence that

10

the rental bidding platforms conflict with fair housing regulations—the other concern raised by the

11

City. Nor, it appears, has the City gathered any further evidence of harm. Rentberry requested that

12

the City update Plaintiffs on the status of the study that the Ordinance contemplates. Blevins Decl.

13

¶ 5; Exhibits 7 and 8. The City has not offered any such updates—suggesting that the study has

14

yet to begin. Id.

15

The moratorium also lacks a logical connection to the City’s asserted interest in studying

16

rental bidding. It bans rental bidding platforms and then charges City departments to study their

17

impact. This is not rational. It is merely a conclusory, speculative, vague, and circular suggestion

18

that if the City does not regulate rental bidding before it proliferates, then the consequences for the

19

housing market could be “significant.” Opp. and XMSJ, Dkt. # 26 at 19-20. What these

20

“significant” consequences are the City does not and cannot say (hence the need for a study), and

21

presuming a finding of harm before the City has completed its studies is the kind of circular

22

reasoning that cannot satisfy First Amendment scrutiny.

23

The City cannot restrict speech in advance just because preventing “proliferation” of such

24

speech will make it easier to impose hypothetical regulations later. Such a rationale is overtly

25

speculative—the City does not know whether such rental bidding will proliferate or how such

26

This was a fair conclusion, given that the Council committee only heard from college students—no economists or
other experts were present to offer testimony, nor were any stakeholders from a rental bidding platform present to
make their case. See http://www.seattlechannel.org/mayor-and-council/city-council/2018/2019-housing-healthenergy-and-workers-rights-committee/?videoid=x87650 (last visited Oct. 2, 2018).

27

9

P.s’ Response to Mtn. for Summ. J. - 14
Case No. 2:18-cv-00743-RAJ

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Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 18 of 22

1

proliferation will make a regulatory structure more difficult to impose. Nor does the City know at

2

this point whether such a regulatory structure will be necessary at all. Even if the moratorium could

3

make the City’s regulatory enforcement easier in the future, that rationale does not outweigh

4

speech interests: “the First Amendment does not permit the State to sacrifice speech for

5

efficiency.” Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781, 795 (1988). Any speech could

6

have speculative harms that a government would like to study before the speech is uttered—but

7

speculation is not a constitutional justification to preemptively ban speech.

8

The moratorium’s underinclusive scope also undermines the City’s interests. A regulation

9

with an underinclusive reach “raises serious doubts about whether the government is in fact

10

pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Brown

11

v. Entertainment Merchants Ass’n, 564 U.S. 786, 802 (2011). A law is underinclusive if it

12

“regulates one aspect of a problem while declining to regulate a different aspect of the problem

13

that affects its stated interest in a comparable way.” Williams-Yulee v. Florida Bar, 135 S. Ct.

14

1656, 1668 (2015).

15

The moratorium is underinclusive because it only targets one narrow venue in which

16

bidding on residential housing can occur. See Plaintiffs’ MSJ, Dkt. # 22 at 17-18. It does not

17

prevent renters from offering a higher price on rental housing in order to compete in a hot market.

18

Nor does it prevent landlords from soliciting bids in any other advertising venue.

19

The City responds that targeting only online rental bidding is appropriate because bidding

20

can occur on a much larger scale on those platforms. Yet rental-bidding platforms are in their

21

infancy while market actors have been free to engage in bidding on rental housing for a long time.

22

Underinclusiveness is clear from the City’s knee-jerk response to a new form of bidding before

23

the market decides whether to adopt it, while the City ignores bidding that has been allowed for

24

decades.

25

Even if the City is correct that these fledgling platforms pose a greater threat than other

26

forms of bidding, the City’s failure to be even-handed in its regulation still undermines the direct

27

advancement requirement. The City’s argument is reminiscent of a similar issue in Florida Star v.
P.s’ Response to Mtn. for Summ. J. - 15
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 19 of 22

1

B.J.F., 491 U.S. 524, 540 (1989). There, the government forbade “mass media” from releasing the

2

names of sexual-assault victims but allowed a small-time press to disclose the same information.

3

Id. at 526. The government argued that it had a stronger interest in targeting mass media because

4

they reached a wider audience. The Court, however, still held that the law was underinclusive

5

because the government “must demonstrate its commitment to advancing this interest by applying

6

its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.” The

7

Florida Star v. B.J.F., 491 U.S. at 540. Thus, even if a fledgling start-up could be considered a

8

“giant” in comparison to other advertising forums where bidding can occur, the City must

9

demonstrate even-handedness in its approach to bidding on rents.

10

B.

The moratorium is more extensive than necessary

11

While the City is correct that it need not choose the least-restrictive alternative to satisfy

12

intermediate scrutiny, the availability of less-restrictive alternatives cuts against a commercial

13

speech restriction’s constitutionality. See Rubin v. Coors Brewing Co., 514 U.S. 476, 491 (1995)

14

(“We agree that the availability of these options, all of which could advance the Government’s

15

asserted interest in a manner less intrusive to respondent’s First Amendment rights, indicates that

16

§ 205(e)(2) is more extensive than necessary.”). Less-restrictive alternatives exist to address

17

affordable housing and to ensure that local regulations are not violated. Across the country and at

18

all levels of government, regulators deploy affordable housing solutions without restricting

19

speech—such as upzoning, rental subsidies, or Seattle’s multi-family housing tax exemption. As

20

for ensuring that local housing regulations are not transgressed, the less-restrictive alternative is

21

straightforward—allow the responsible City departments to exercise their investigatory and

22

prosecutorial powers in accordance with municipal law. No added layer of speech regulation is

23

necessary.

24

The City tries to escape these alternatives by artificially narrowing the scope of the City’s

25

interests. At the beginning of the City’s brief, it says that the moratorium is a “response to the

26

undeniable and unprecedented affordable housing crisis sweeping across the region.” Opp. and

27

XMSJ, Dkt. #26 at 1. When Rentberry suggests other ways to address this affordability crisis,
P.s’ Response to Mtn. for Summ. J. - 16
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 20 of 22

1

however, the City insists that alternatives that address affordable housing “have no bearing on the

2

interest the Ordinance is designed to further,” which it now claims is just to learn how rental

3

bidding platforms affect the City. See id. at 24. The City cannot artificially confine the scope of its

4

interest to avoid scrutiny. In 44 Liquormart, Inc. v. Rhode Island, for example, the Supreme Court

5

analyzed alternatives to an alcohol price ban at a high level of generality. The Court saw the

6

purpose of the law as an attempt to increase the price of alcohol, which—at that broad level of

7

generality—could be achieved through other means such as increased taxation. 517 U.S. at 507.

8

Likewise, here, the City’s purposes should be viewed in their full breadth: to address housing

9

affordability and to ensure compliance with local regulations. There are less-restrictive means to

10

address both these goals. Advertising restrictions like the website ban here are unconstitutional

11

when, as here, there is “no hint” that the government “even considered” alternatives to restricting

12

speech and no explanation “of why the Government believed forbidding advertising was a

13

necessary as opposed to merely convenient means of achieving its interests.” See Thompson v.

14

Western States Medical Center, 535 U.S. 357, 373 (2002).

15

CONCLUSION

16

A raft of precedent makes clear that communicating a price offer is commercial speech. By

17

banning rental bidding, the City’s moratorium restricts that speech. As a speculative measure that

18

unnecessarily restricts speech, it fails to satisfy First Amendment scrutiny. Plaintiffs’ motion for

19

summary judgment should be granted, and the City’s cross-motion for summary judgment should

20

be denied.

21

///

22
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P.s’ Response to Mtn. for Summ. J. - 17
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 21 of 22

1

DATED: October 4, 2018.

2

Respectfully submitted,

3
4
5
6
7
8
9

By: s/ ETHAN W. BLEVINS
By: s/ BRIAN T. HODGES
Ethan W. Blevins, WSBA # 48219
Brian T. Hodges, WSBA # 31976
Pacific Legal Foundation
10940 Northeast 33rd Place, Suite 210
Bellevue, Washington 98004
Telephone: (425) 576-0484
Fax: (425) 576-9565
Email: EBlevins@pacificlegal.org
Email: BHodges@pacificlegal.org

10
11
12
13

By: s/ WENCONG FA
Wencong Fa, California Bar # 301679 **
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Fax: (916) 419-7747
Email: WFa@pacificlegal.org
By: s/ JAMES M. MANLEY
James M. Manley, Arizona Bar # 031820 **
Pacific Legal Foundation
3217 East Shea Blvd., #108
Phoenix, Arizona 85028
Telephone: (916) 288-1405
Email: JManley@pacificlegal.org
** Pro hac vice

14

Attorneys for Plaintiffs

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P.s’ Response to Mtn. for Summ. J. - 18
Case No. 2:18-cv-00743-RAJ

Pacific Legal Foundation
10940 NE 33rd Pl., Suite 210
Bellevue, Washington 98004
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 Case 2:18-cv-00743-RAJ Document 29 Filed 10/04/18 Page 22 of 22

CERTIFICATE OF SERVICE

1
2

I hereby certify that on October 4, 2018, I electronically filed the foregoing PLAINTIFFS’

3

RESPONSE TO CROSS-MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court

4

using the CM/ECF system, which will send notification of such filing to all parties.

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Dated: October 4, 2018.
s/ ETHAN W. BLEVINS
Ethan W. Blevins, WSBA # 48219

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Attorney for Plaintiffs

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P.s’ Response to Mtn. for Summ. J. - 19
Case No. 2:18-cv-00743-RAJ

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