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No. 19-35308
________________________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
Rentberry, Inc., and Delaney Wysingle,
Plaintiffs – Appellants,
v.
The City of Seattle,
Defendant – Appellee.
_______________________________
On Appeal from the United States District Court
for the Western District of Washington
Honorable Richard A. Jones, District Judge
_______________________________
Appellants’ Reply Brief
_______________________________
Ethan W. Blevins
Brian T. Hodges
Pacific Legal Foundation
255 South King Street, Suite 800
Seattle, Washington 98104
Telephone: (425) 576-0484
E-mail: EBlevins@pacificlegal.org
E-mail: BHodges@pacificlegal.org

James M. Manley
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Fax: (916) 419-7747
E-mail: JManley@pacificlegal.org

Attorneys for Plaintiffs – Appellants

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
attorney for Appellant Rentberry, Inc., certifies that Rentberry has no parent
company and no publicly held company holds any stock in Rentberry.
DATE: October 4, 2019.

Respectfully submitted,

s/ ETHAN W. BLEVINS
Ethan W. Blevins
Brian T. Hodges
Pacific Legal Foundation
255 South King Street, Suite 800
Seattle, Washington 98104
Telephone: (425) 576-0484
E-mail: EBlevins@pacificlegal.org
E-mail: BHodges@pacificlegal.org

James M. Manley
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Fax: (916) 419-7747
E-mail: JManley@pacificlegal.org

Attorneys for Plaintiffs – Appellants

i

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................1
I. Wysingle has standing to vindicate his First Amendment rights ....................1
a.

Wysingle has suffered concrete injury.....................................................1

b.

Wysingle’s injury is capable of repetition yet evades review .................5

II. By prohibiting soliciting and placing bids on an online platform, the
moratorium directly regulates speech ..............................................................8
III. The moratorium fails intermediate scrutiny because the City lacks
evidence of harm and ignored less-restrictive alternatives ...........................14
a.

The moratorium is not a time, place, and manner restriction ................14

b.

The City’s speculative claims of harm do not satisfy
Central Hudson ......................................................................................16

c.
The moratorium is a poor fit for achieving the City’s ends...................22
CONCLUSION ........................................................................................................24
CERTIFICATE OF SERVICE ................................................................................25
CERTIFICATE OF COMPLIANCE FOR BRIEFS ...............................................26

ii

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TABLE OF AUTHORITIES
Page(s)
Cases
44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996) .................................................................................. 9-10, 14
Airbnb, Inc. v. City and County of San Francisco,
217 F. Supp. 3d 1066 (N.D. Cal. 2016) ................................................................ 9
Allen v. City of Arcata,
691 Fed. Appx. 461 (9th Cir. 2017)...................................................................... 8
American Booksellers Foundation v. Dean,
342 F.3d 96 (2d Cir. 2003) .................................................................................11
Bernstein v. U.S. Dep’t of State,
974 F. Supp. 1288 (N.D. Cal. 1997) ...................................................................24
Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011) ............................................................................................21
Burson v. Freeman, 504 U.S. 191 (1992) ................................................................16
Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) ............................................................................................15
Dep’t of Professional Regulation, Bd. of Accountancy v. Rampell,
621 So. 2d 426 (Fla. 1993) .................................................................................11
Edenfield v. Fane,
507 U.S. 761 (1993) ...................................................................................... 16-17
Gallman v. Pierce,
639 F. Supp. 472 (N.D. Cal. 1986) ................................................................... 6-7
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................................................................12
Homeaway.com, Inc. v. City of Santa Monica,
918 F.3d 676 (9th Cir. 2019) ................................................................................ 9
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Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557 (1995) ............................................................................................13
Jim Gall Auctioneers, Inc. v. City of Coral Gables,
Case No. 97-cv-3186-CIV-SEITZ, Order on Cross-Motions for
Summary Judgment (S.D. Fla. 1999), available at
https://www.courtlistener.com/docket/10910567/56/jim-gallauctioneers-v-city-of-coral-gables/ ............................................................... 11-12
Keep Chicago Livable v. City of Chicago,
No. 16C10371, 2017 WL 955421 (N.D. Ill. Mar. 13, 2017),
vacated and remanded, Keep Chicago Livable v. City of Chicago,
913 F.3d 618 (7th Cir. 2019) ..............................................................................10
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ..............................................................................................3
Mendoza v. Frenchman Hill Apartments Ltd. P’ship,
No. CV-03-494, 2005 WL 6581642 (E.D. Wash. Jan. 20, 2005) ........................ 6
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981) ............................................................................................16
Minneapolis Star and Tribune Co. v. Minnesota Comm’r of Revenue,
460 U.S. 575 (1983) ............................................................................................13
Moore v. Urquhart,
899 F.3d 1094 (9th Cir. 2018) .............................................................................. 6
N.A.A.C.P. v. City of Richmond,
743 F.2d 1346 (9th Cir. 1984) .............................................................................. 5
Nat’l Ass’n for Gun Rights, Inc. v. Mangan,
933 F.3d 1102 (9th Cir. 2019) .............................................................................. 2
National Inst. of Family and Life Advocates v. Becerra,
138 S. Ct. 2361 (2018) ........................................................................................21
Nixon v. Shrink Missouri Government PAC,
528 U.S. 377 (2000) ............................................................................................17
Porter v. Bowen,
496 F.3d 1009 (9th Cir. 2007) ..............................................................................2
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Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ....................................................13
Rodriguez v. Maricopa Cty. Comm. College Dist.,
605 F.3d 703 (9th Cir. 2010) ..............................................................................20
Roe v. Wade, 410 U.S. 113 (1973)......................................................................... 6-7
Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995) ............................................................................................23
Santa Monica Food Not Bombs v. City of Santa Monica,
450 F.3d 1022 (9th Cir. 2006) .............................................................................. 2
Spence v. Washington, 418 U.S. 405 (1974) ...........................................................13
Texas v. Johnson, 491 U.S. 397 (1989) ...................................................................13
Thompson v. Western States Med. Ctr.,
535 U.S. 357 (2002) ............................................................................................23
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) ............................................................................................16
U.S. West, Inc. v. FCC,
182 F.3d 1224 (10th Cir. 1999) ..........................................................................12
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976) ....................................................................... 9
Virginia v. Am. Booksellers Ass’n,
484 U.S. 383 (1988) ........................................................................................2, 11
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ......................................... 14-15
Other Authority
City of Seattle’s Opening Brief, Yim v. City of Seattle, Case No. 95713-1
(Wash. August 24, 2018), available at http://www.courts.wa.gov/
content/Briefs/A08/958131%20App's%20Opening%20Brief.pdf .....................22

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INTRODUCTION
The City of Seattle’s ban on communication between renters and potential
tenants via online bidding platforms violates the First Amendment. Appellant
Delaney Wysingle owns a rental property in Seattle and the City’s moratorium
unconstitutionally limits his ability to use Appellant Rentberry’s bidding website.
Wysingle has standing to sue because he had a concrete plan to solicit and receive
bids via Rentberry and declined to do so because of the moratorium. His injury is
not moot because he is reasonably likely to have vacancies in the future during the
course of the moratorium.
The moratorium regulates speech by prohibiting parties from engaging in
protected communication about prices. That prohibition does not survive
intermediate scrutiny because it is based on conjecture and lacks the means-end fit
required by the First Amendment. The decision below should be reversed.
ARGUMENT
I.

Wysingle has standing to vindicate his First Amendment rights
a.

Wysingle has suffered concrete injury

The City’s argument on justiciability parrots the district court’s holding
without ever addressing Appellants’ arguments dismantling that holding. As
Appellants (Wysingle) explained, see Opening Brief at 9-15, the court below
misread the record and the relevant caselaw. The City repeats these errors. Especially
under the relaxed standing doctrine applied in First Amendment cases, Wysingle
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plainly has demonstrated injury attributable to the City’s Ordinance for which he can
seek redress in this Court.
A First Amendment claimant has standing if he can show that he altered his
expression to comply with the law at issue and alleges apprehension that the law
would be enforced against him. See Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1034 (9th Cir. 2006); Nat’l Ass’n for Gun Rights, Inc. v.
Mangan, 933 F.3d 1102, 1112 n.9 (9th Cir. 2019) (“In the First Amendment context,
‘self-censorship’ is ‘a harm that can be realized even without an actual
prosecution.’” (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393
(1988))). Wysingle affirmed his intent to advertise his property and solicit bids on
Rentberry before this case was filed in mid-summer 2018. ER 42. He altered his
expression, however, and advertised on Zillow because he feared enforcement of the
moratorium. 1 Id. The standing inquiry can end there. Porter v. Bowen, 496 F.3d
1009, 1019 n.11 (9th Cir. 2007) (individuals thwarted from using website’s voteswapping mechanism after it was disabled by the operators in response to threatened
prosecution under state laws have standing to pursue their First Amendment claims
and the website operators’ standing need not be separately considered).

The City clearly intends to enforce the moratorium. A section of the website for
the Seattle Department of Construction and Inspections entitled “Codes We Enforce
(A-Z)” includes the ordinance at issue here. See http://www.seattle.gov/
sdci/codes/codes-we-enforce-(a-z).
1

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The City asserts that Wysingle’s injury was not concrete because he could not
specify the exact date by which he would advertise his property. This is a serious
misreading of the evidence. See Opening Brief at 13-15. This home has been a rental
property since Wysingle acquired it in 2015. See ER 41. After the previous tenant
moved out in February 2018, Wysingle predicted on July 12, 2018, that repairs to
the house would be complete and it would again be ready to rent by the end of that
month, and it was ready on August 4, 2018. See ER 42, 56.
Wysingle’s concrete plans to use Rentberry were not “some day” intentions
just because he couldn’t pinpoint the exact date and time when he would engage in
the prohibited expression. In Lujan v. Defenders of Wildlife, by contrast, the
plaintiffs lacked standing because they had no “description of concrete plans, or
indeed any specification of when the some day will be.” 504 U.S. 555, 564 (1992).
Specifically, the plaintiffs had made no plans to visit foreign project sites where there
lived species allegedly threatened by a rule promulgated by the Secretary of the
Interior. Id. Wysingle’s plan was ironclad by comparison: he has rented this property
since acquiring it; he declared his intent to advertise his rental unit when renovations
were complete; the renovations were done within a few days of the date he predicted;
and he did advertise for a tenant in compliance with all relevant laws and ordinances.

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This was not a vague wish like the ephemeral hopes that failed to establish injury in
Lujan. 2
The City claims that Wysingle “during his deposition readily admitted that he
was not sure whether he would use websites like Rentberry to rent his home and that
he was merely considering doing so.” Brief of Appellee City of Seattle at 14. The
City offers no citation to the deposition because Wysingle never said that. Instead,
Wysingle repeatedly said in his signed declarations and his deposition that he
intended to advertise his property on Rentberry when the moratorium ended. See ER
42 (“I would like to use the website Rentberry to advertise my property and find a
new tenant through Rentberry’s bidding feature.”); id. 58 (“[M]y goal is to use the
bidding platform.”); id. 59 (“Now, the technology, I understand, is newer, but I’m
willing to try that.”); id. (“I plan to use the bidding feature on these platforms to help
determine the best market rate.”); id. 60 (“I want to give the bidding process a try.”);
The City makes much of a “false” declaration signed by Wysingle. See Brief of
Appellee at 13. Wysingle had filed a declaration in support of a withdrawn motion
for preliminary injunction that contained a minor inaccuracy that has no bearing on
justiciability: the declaration said there was a tenant in the unit as of May 15, 2018,
but the tenant had broken his lease early and left in February 2018. Even if this
misstatement were part of the record on appeal (and it is not), the corrected facts hurt
rather than help the City’s argument that Wysingle only has standing when his unit
is empty. See Brief of Appellee at 16-17. The City does not dispute that Wysingle
continuously operated this property as a rental home, and it is well-established that
he had concrete plans to advertise on Rentberry that were thwarted by the challenged
Ordinance. In any event, Wysingle corrected this trivial misstatement in his
deposition and in his declaration in support of his motion for summary judgment.
See ER 42, 57.

2

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SA 046 (“I continue to want to use Rentberry, including the bidding feature, to
advertise my property before the current lease terminates in June 2020.”).
Wysingle’s actions confirmed these statements. Prior to filing suit, Wysingle visited
Rentberry’s website over a dozen times and spoke with Rentberry personnel to learn
about the platform. ER 57, 59, 62.
b.

Wysingle’s injury is capable of repetition yet evades review

The City argues that any justiciable claim is now moot because Wysingle’s
house is currently occupied by a tenant. See Brief of Appellee at 16-17. By the City’s
logic, landlords (or tenants) would have standing to challenge rental restrictions only
during the interval between leases—which is when Wysingle filed his claims in this
case—and the City argues standing is extinguished once a new lease is signed. Id.
That argument would make claims involving tenancy difficult or impossible to
litigate during the necessarily brief windows of time between leases.
But the City is wrong about the law of standing. A claim is not moot if the
injury previously suffered is capable of repetition yet evades review, especially when
the timeframe during which the injury could occur is too brief to permit full litigation
of the plaintiff’s claims and there is a reasonable likelihood that the plaintiff will be
subject to the challenged government action again. N.A.A.C.P. v. City of Richmond,
743 F.2d 1346, 1353 (9th Cir. 1984).

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For example, in Roe v. Wade, the government argued that the legal challenge
to a Texas abortion law was moot after the pregnant plaintiff had completed
gestation. 410 U.S. 113, 124 (1973). The Supreme Court disagreed, noting that
“pregnancy litigation seldom will survive much beyond the trial stage, and appellate
review will be effectively denied.” Id. at 125.
Tenancy issues fit neatly into the “capable of repetition, yet evading review”
exception because rental leases are inherently non-permanent. See Moore v.
Urquhart, 899 F.3d 1094, 1100 (9th Cir. 2018) (rejecting claim that lawsuit
challenging eviction procedures was moot because, among other reasons, “it is
reasonable to expect that at some point in the future Moore and Shaw will again fall
behind in their rent and thus could again be subject to eviction proceedings”). See
also, Mendoza v. Frenchman Hill Apartments Ltd. P’ship, No. CV-03-494, 2005
WL 6581642, at *3 (E.D. Wash. Jan. 20, 2005) (challenge to Washington Unlawful
Detainer Act not moot); Gallman v. Pierce, 639 F. Supp. 472, 480 (N.D. Cal. 1986)
(challenge to eviction notices).
Hence, Wysingle’s claims are not moot because his injury will recur each time
his rental unit is advertised and yet, despite the recurrence, will evade review due to
the brevity of rental vacancies. The length and frequency of vacancies are
unpredictable. Wysingle’s previous tenant broke his lease early, creating an
unexpected vacancy. ER 41. Wysingle re-leased the property five months later for a
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10-month term. As he has in the past, Wysingle would reasonably seek to fill any
future vacancy as quickly as possible, whether that vacancy occurs at the end of the
lease term or earlier, if the tenant gives notice. The combination of renewable oneyear moratoria and a 10-month lease makes it highly likely that Wysingle will again
need to find a tenant while the rent-bidding moratorium is in effect and yet lack
enough time to fully litigate his claim. See Gallman, 639 F. Supp. at 480 (the days
or months during which a rental is vacant is a “very brief time” in which to litigate
issues arising from a tenancy). Wysingle would have used Rentberry’s rent-bidding
platform but for the Ordinance’s moratorium and would do so in the future when his
rental property is vacated—if this Court declares the Ordinance unconstitutional. See
ER 42; SA 046. Much like pregnancy, the vacancy periods during which Wysingle
would be able to advertise his property are too short to complete litigation. The City
demands that Wysingle either forego any legal challenge to the moratorium or keep
his property vacant for the course of the litigation so he can vindicate his
constitutional rights. “Our law should not be so rigid.” Roe, 410 U.S. at 125.
The City faults Wysingle for not advertising his unit during the brief window
when the moratorium was not in force from May 1, 2019, through July 16, 2019. See
Brief of Appellee at 14. First, Wysingle did not advertise on Rentberry during that
timeframe because his current tenant chose to renew the lease. See SA 046. Wysingle

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does not need to evict a good tenant to avoid mootness. His recurring injury for
which he may seek relief arises when a lease terminates and is not renewed.
Moreover, the new moratorium would have outlawed Wysingle’s attempt to
use Rentberry even if he had declined to renew the lease. The current tenant’s initial
lease lasted through June 2019. SA 049. The earliest Wysingle would have begun
advertising and showing the house was July 1, 2019, assuming no cleaning or repairs
needed to be done. Hence, he would have had at most two weeks to use Rentberry
before the moratorium extension became effective, after which time the Ordinance
banned his use of the platform. Thus, the moratorium did indeed have an effect on
Wysingle’s decision to decline using Rentberry in 2019, as he stated in his
supplemental declaration. SA 046. See Allen v. City of Arcata, 691 Fed. Appx. 461,
462-63 (9th Cir. 2017) (plaintiff deterred from action in response to defendant’s
conduct establishes injury-in-fact).
II.

By prohibiting soliciting and placing bids on an online platform, the
moratorium directly regulates speech
The City argues that the moratorium does not implicate the First Amendment

because it only regulates a business transaction—i.e., conduct, not speech. But the
City then contradicts itself by conceding that the moratorium does directly regulate
speech: “The Ordinance does not prohibit all communications about prices, only
those done through a specific medium—on-line auctioneering technology.” Brief of
Appellee at 20 (emphasis added); see also id. at 21 n.3 (“Nor does the Ordinance
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prevent a potential tenant from expressing a price to the landlord. A potential tenant
is free to do so by any number of means. The only way she cannot do so under the
Ordinance is through online auction technology.”) (emphasis added). These
concessions acknowledge the straightforward language of the Ordinance: it does not
regulate a rental transaction—it solely regulates expression about price. See ER 19;
SA 007.
Communicating a price is protected speech. Opening Brief at 16-20 (citing 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (“[T]here is no question
that Rhode Island’s price advertising ban constitutes a blanket prohibition against
truthful, nonmisleading speech about a lawful product.”)); Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976)
(ban on advertising price of prescription drugs violated First Amendment).
In every case cited by the City regarding the conduct/speech distinction, the
regulation at issue dealt with a behavior and only had an incidental impact on speech.
In Airbnb, Inc. v. City and County of San Francisco, 217 F. Supp. 3d 1066, 1073
(N.D. Cal. 2016), for instance, all parties agreed that the challenged regulation was
not “directed to content or speech.” The same is true of Homeaway.com, Inc. v. City
of Santa Monica, 918 F.3d 676, 682 (9th Cir. 2019), where an ordinance prevented
hosting platforms from completing a booking transaction for unlicensed
properties—the law regulated a commercial transaction rather than information
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relating to an anticipated transaction. The City also cites to an unreported decision
since overturned by the Seventh Circuit. Keep Chicago Livable v. City of Chicago,
No. 16C10371, 2017 WL 955421 (N.D. Ill. Mar. 13, 2017), vacated and remanded,
Keep Chicago Livable v. City of Chicago, 913 F.3d 618 (7th Cir. 2019). Even so, the
ordinance at issue in Livable regulated only commercial conduct by requiring shortterm rentals to obtain a license and imposing reporting requirements on listing
platforms. See id. at *3.
Each of the above cases involved direct regulation of a transaction. Here, by
contrast, the moratorium does not regulate any aspect of a commercial transaction.
It only regulates speech in anticipation of a transaction. This is clear from the City’s
own reading of the Ordinance. According to the City, nothing prevents landlords or
house hunters from using Rentberry and completing a transaction via Rentberry. See
Brief of Appellee at 6, 28-29. The only thing landlords cannot do is solicit bids or
communicate a bid—i.e., engage in speech about price. Id. at 28-29. Speech does
not morph into conduct just because the speech is related to commercial activity.
Supreme Court “decisions . . . have made plain that a State’s regulation of the sale
of goods differs in kind from a State’s regulation of accurate information about those
goods.” 44 Liquormart, 517 U.S. at 512.
As a practical matter, Rentberry cannot function in Seattle due to the
moratorium because its central function—bidding—cannot be used by Seattle
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tenants and landlords. ER 45. The City makes light of this reality (“Rentberry is free
to run its website as it sees fit,” Brief of Appellee at 41) but this is akin to arguing
that a City-imposed prohibition on reading books has no impact on bookstores, or a
moratorium on bidding for antiques by Seattle residents would have no impact on
how ebay.com communicates with buyers and sellers. See Virginia v. American
Booksellers Ass’n, 484 U.S. 383, 392-93 (1988) (booksellers have standing for a preenforcement challenge to a statute prohibiting the commercial display of sexual
materials harmful to juveniles); American Booksellers Foundation v. Dean, 342 F.3d
96, 101 (2d Cir. 2003) (operators of internet website providing sexual health advice
has standing for a First Amendment challenge to a law prohibiting the transmission
of sexually explicit material to minors).
The City states that Wysingle “cannot seriously contend that the Ordinance
bans communication akin to solicitation, advertising, or marketing.” Brief of
Appellee at 23. Yet the City never rebuts the cases cited by Wysingle wherein courts
explicitly recognized bidding as protected speech. See Opening Brief at 18; Dep’t of
Professional Regulation, Bd. of Accountancy v. Rampell, 621 So. 2d 426, 428 (Fla.
1993); Jim Gall Auctioneers, Inc. v. City of Coral Gables, Case No. 97-cv-3186-

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CIV-SEITZ, Order on Cross-Motions for Summary Judgment at 12 (S.D. Fla.
1999). 3
While there can be no dispute that price advertising is protected speech, the
City’s argument that a bid is not protected speech implies that sellers somehow have
greater First Amendment rights than buyers. Likewise, a landlord has a
constitutional right to list a price, but would not have a constitutional right to solicit
price offers from applicants. The First Amendment does not permit the government
to distinguish between speakers and speech content in such an arbitrary fashion;
“[e]ffective speech has two components: a speaker and an audience. A restriction on
either of these components is a restriction on speech.” U.S. West, Inc. v. FCC, 182
F.3d 1224, 1232 (10th Cir. 1999); Griswold v. Connecticut, 381 U.S. 479, 482-83
(1965) (“[T]he state may not, consistently with the spirit of the First Amendment,
contract the spectrum of available knowledge. The right of freedom of speech and
press includes not only the right to utter or to print, but the right to distribute, the
right to receive, the right to read and freedom of inquiry, freedom of thought, and
freedom to teach . . . . Without those peripheral rights the specific rights would be
less secure.”) (citations omitted).

Available at https://www.courtlistener.com/docket/10910567/56/jim-gallauctioneers-v-city-of-coral-gables/.

3

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In arguing that the moratorium does not regulate speech, the City also veers
off course into the wrong First Amendment test. The City asks: “What message are
landlords trying to convey by renting a home through an online platform?” Brief of
Appellee at 22. This question betrays a fundamental misunderstanding about the
First Amendment issue in this case. There are several speech interests at stake here:
the landlord’s interest in advertising, soliciting, and receiving bids (prices), and an
applicant’s interest in posting bids (prices). This price is the message.
No further message is required. The City errs in demanding one because a
“particularized message” is only required when the First Amendment is applied to
conduct that implicitly conveys a message. Texas v. Johnson, 491 U.S. 397, 404
(1989); Spence v. Washington, 418 U.S. 405, 410-11 (1974). In cases involving pure
speech, as here, “a narrow, succinctly articulable message is not a condition of
constitutional protection.” Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 569 (1995).4
The City errs in arguing that Wysingle’s theory of the case would subject all
regulation of commercial activity to First Amendment scrutiny. See Brief of
This Court also should reject the City’s implication that Wysingle must prove a
censorial motive. See Brief of Appellee at 23. When a law directly regulates speech,
the government’s motive is irrelevant. See Reed v. Town of Gilbert, 135 S. Ct. 2218,
2227 (2015) (declining to “consider the government’s justifications or purposes” for
imposing a content-based restriction on speech”); Minneapolis Star and Tribune Co.
v. Minnesota Comm’r of Revenue, 460 U.S. 575, 592 (1983) (“Illicit legislative
intent is not the sine qua non of a violation of the First Amendment.”).
4

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Appellee at 24-25. First, intermediate scrutiny requires a balance between protected
speech and regulatory authority: “The entire commercial speech doctrine, after all,
represents an accommodation between the right to speak and hear expression about
goods and services and the right of government to regulate the sales of such goods
and services.” 44 Liquormart, 517 U.S. at 499 (quoting Lawrence Tribe, American
Constitutional Law § 12-15, p. 903 (2d ed. 1988)). Even though it offers less First
Amendment protection, the commercial speech doctrine still recognizes that
“regulation of the sale of goods differs in kind from a State’s regulation of accurate
information about those goods.” Id. at 512. Constitutional protection for commercial
speech does not endanger the City’s ability to regulate the underlying conduct of
entering into a lease agreement. “Thus, it is no answer that commercial speech
concerns products and services that the government may freely regulate.” Id.
III.

The moratorium fails intermediate scrutiny because the City lacks
evidence of harm and ignored less-restrictive alternatives
a.

The moratorium is not a time, place, and manner restriction

In a brief footnote, the City defends the moratorium as a time, place, and
manner restriction. The City’s perfunctory defense does not constitute an adequate
argument. See Brief of Appellee at 21 n.3. Regardless, the defense lacks merit.
A time, place, and manner restriction must be “justified without reference to
the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288,
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293 (1984)). Seattle’s moratorium is content-based. The City itself argues that
landlords are welcome to advertise on Rentberry and similar sites—they just cannot
solicit bids. Brief of Appellee at 28-29. Hence, the only line dividing that which is
regulated and unregulated is the content of the advertisement and the content of
applicant-users’ speech. The moratorium therefore cannot be justified as a time,
place, and manner restriction.
Even if the Ordinance were construed as a time, place, and manner restriction,
such restrictions still must be “narrowly tailored to serve the government’s
legitimate, content-neutral interests.” Rock Against Racism, 491 U.S. at 798.
Moreover, the government must “leave open ample alternative channels for
communication of the information.” Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984). Here, the City concedes there are no adequate alternative
channels because rental bidding platforms are more effective as a means of
communicating bids than other mediums: “[A]bsent the use of the rent bidding
platforms the Ordinance targets, it is very difficult to imagine rent bidding occurring
on a scale that would have any measurable impact on the rental housing market.”
Brief of Appellee at 39-40. Hence, bidding outside the context of such platforms is
not an adequate alternative channel.

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b.

The City’s speculative claims of harm do not satisfy
Central Hudson

The City hopes to prevail based on speculation from a conclusory report—
prepared after this litigation was filed—that Rentberry will cause the harms the City
fears. But the standard for intermediate scrutiny is clear: speculation and conjecture
are not enough. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664 (1994).
The City must demonstrate real evidence of existing harm. Id.
The City begins by misinterpreting its evidentiary burden. According to the
City, “common sense” is enough to justify a speech regulation. Brief of Appellee at
34. But the City’s citations do not support that point. For instance, in Burson v.
Freeman, the Supreme Court discussed a substantial amount of evidence supporting
speech restrictions in the specific context of the polling place and held those
restrictions were necessary to protect the fundamental right to vote based on a “long
history, a substantial consensus, and simple common sense.” Burson v. Freeman,
504 U.S. 191, 210 (1992) (emphasis added). In Metromedia, Inc. v. City of San
Diego, 453 U.S. 490 (1981), the Court upheld “common-sense judgments of local
lawmakers,” based on a broad legislative and judicial consensus and to avoid judicial
“trespassing on one of the most intensely local and specialized of all municipal
problems”—billboard regulation. Id. at 509. More to the point, the Supreme Court
has repeatedly emphasized that the government’s burden under intermediate scrutiny
“is not satisfied by mere speculation or conjecture; rather, a governmental body
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seeking to sustain a restriction on commercial speech must demonstrate that the
harms it recites are real.” Edenfield v. Fane, 507 U.S. 761, 770-71 (1993); see also
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000).
The City’s paltry evidence does not lead to a reasonable inference that the
harms it recites are real. The alleged harms are two-fold: negative impact on housing
costs and violation of local law. The City relies on a short PowerPoint presentation
by a group of college students. Brief of Appellee at 3. The PowerPoint cites only
two sources related to rent-bidding sites, see SER 16-17, both of which are short
opinion pieces pulled from online news sites that criticize rent-bidding platforms and
are rife with speculation and hyperbolic rhetoric. See SER 19-27. Moreover, both
op-eds quote Rentberry’s CEO, Alex Lubinsky, explaining that bidding may cause
prices to rise or drop depending on market circumstances, and landlords may accept
lower bids in some markets. See SER 21, 26. Neither op-ed rebuts Lubinsky.
Beyond that, the college PowerPoint describes a series of old studies about
bidding outside the context of online platforms in the home sales context in foreign
countries. See SER 16-17. The PowerPoint makes no effort to explain how Seattle’s
conditions are similar to those in the studies and therefore the studies cannot predict
how an online bidding platform will operate in the rental market in Seattle,
Washington.

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None of this can satisfy the City’s evidentiary burden. Indeed, not even the
City considered the evidence cited in the PowerPoint as sufficient; hence the
professed need for a city-commissioned study and the city council’s admission that
it remained “uncertain” about the impact of rental bidding platforms. ER 17-18.
The City now offers its post-hoc commissioned report as evidence justifying
the Ordinance. Just as the op-eds cited by the college students state that the impact
of rental bidding will depend on local market conditions, the report concedes that
the “brief duration of rental bidding platforms operating in Seattle prevented local
data collection. As a result, the effect of rental bidding platforms on the Seattle rental
housing market and on equitable access to housing cannot be analyzed.” SA 013
(emphasis added). Even outside the Seattle market, the report determined that
important claims about the relative impact of these platforms “are unable to be
validated.” SA 014; see also id. 018 (“[D]ata on rental bidding platforms from other
cities is also minimal.”).
The City insists it can rely on anecdote, but the one “case study” in its report
regarding the state of Victoria, Australia, does not even offer anecdotal evidence.
The report notes that rental bidding platforms entered the Melbourne housing market
in 2017.5 SA 020. But the report only says that they were controversial, and then
follows with the non-sequitur that a 2016 study of renters’ experiences in Victoria
5

Melbourne is the largest city within the state of Victoria.
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indicated that as many as eighty percent of prospective tenants declined to pay more
than the original listed price. SA 020. One may get the impression from the City’s
brief that the 2016 Victoria study analyzed the use of rental bidding platforms. Not
so—such platforms had not even entered the Victoria housing market at that point.
The Victoria study says nothing about the platforms at issue in this case or even
whether bidding caused any noticeable impact on housing costs in Victoria. See SA
020.6 In other words, the Victoria “case study” says nothing about the impact of
rental bidding platforms in Victoria, Australia, much less in Seattle, Washington.
The City claims that it needs to react preemptively before rental bidding
proliferates. Brief of Appellee at 30. But the premise that rental bidding will
proliferate is wholly speculative. Indeed, the City’s report conflicts with that
conjecture, finding that very few landlords even had an interest in using the platform.
See SA 022. The City has no evidence regarding a key premise of the Ordinance—
that rental bidding would run rampant before the City could take regulatory action.
Aside from studying the impact on housing costs, the commissioned study
was also supposed to determine whether rental bidding platforms “comply with the
City of Seattle’s fair housing and rental regulation laws.” ER 17. The report,
however, can only speculate on that front as well.
The full study is available at https://s3.ap-southeast-2.amazonaws.com/
hdp.au.prod.app.vic-engage.files/5814/8781/7797/Victorian_Renting_Research_
Report_-_RTA_Review_1.pdf. The section on bidding is at pages 75-76.
6

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Initially, the study misinterprets the Ordinance by asserting that it was
concerned about “[c]ompliance with federal fair housing protections, state rental
housing regulations, and Seattle Municipal Code (SMC).” SA 015. This is false. The
Ordinance lists only “compliance with the City Code” and nowhere mentions state
and federal law. See ER 17. In line with this limited purpose, the City commissioned
the study to investigate only “whether rental housing bidding platforms comply with
The City of Seattle’s fair housing and rental regulation laws.” ER 19. The City
repeated this limited focus in the renewed Ordinance. See SA 004.
Nonetheless, the report speculates about whether rental bidding platforms
might violate federal and state law. See SA 016-18. Even if this section of the report
related to the government interests identified in the Ordinance, it still fails to present
adequate evidence. The report, for instance, alleges that short-term rental sites such
as Airbnb and HomeAway may allow users to discriminate. See SA 016. This
evidence proves nothing related to the use of rental bidding platforms, which provide
a wholly different service, and, in any case, offers no theory as to how platforms that
“allow” discrimination by other actors are violating any law, whether it be federal,
state, or local. See id.; cf. Rodriguez v. Maricopa Cty. Comm. College Dist., 605 F.3d
703, 710-11 (9th Cir. 2010) (government need not shut down mailing list and web
servers to prevent users from engaging in potentially harassing speech).

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Even if the City had evidence and a genuine theory of liability under which
Rentberry might be violating a local law prohibiting discrimination, the Ordinance
still could not stand. After all, if the City’s interest here is about preventing
discrimination on rental sites, then the Ordinance would be absurdly underinclusive.
The moratorium targets fledgling sites with a small market share—and it has no
evidence of discrimination on such sites—while ignoring Zillow, Craigslist, Airbnb,
HomeAway, and others, where it claims to have purported evidence of
discrimination. See Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 801-02
(2011) (Underinclusiveness raises serious doubts about whether the government is
in fact pursuing the interest it invokes, rather than disfavoring a particular speaker
or viewpoint.); National Inst. of Family and Life Advocates v. Becerra, 138 S. Ct.
2361, 2375 (2018) (striking down “wildly underinclusive” law under intermediate
scrutiny).
The only actual local housing law that the report discusses directly is the
“first-in-time” rule—a law requiring landlords to offer a rental to the first qualified
applicant. ER 24. That law is not currently in force, but the report tries nonetheless
to make the case that rental bidding platforms would violate the first-in-time rule,
were it enforceable, with a single conclusory sentence: “[R]ental bidding platforms
would violate First-in-Time if it were to be restored.” SA 021. Yet the City has
maintained throughout the litigation challenging the first-in-time ordinance that
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landlords can still impose whatever criteria they want, Yim v. City of Seattle, Case
No. 95713-1, City of Seattle’s Opening Brief at 1 (Wash. August 24, 2018), 7 which
would ostensibly include a criterion such as “highest bidder.”
In short, both the City report and the pre-enactment findings say remarkably
little about the actual impact of rental bidding platforms in Seattle or whether such
sites clash with local law. Perhaps recognizing this problem, the City asks this Court
to remand because its year-long study “may not be the sole evidence the City would
bring to bear.” Brief of Appellee at 26. The City has twice had the opportunity to
ascertain evidence necessary to restrict Wysingle’s and Rentberry’s speech rights.
Now it asks for a third bite at the apple. The request for a remand should be denied.
c.

The moratorium is a poor fit for achieving the City’s ends

This Court must ascertain whether the moratorium is a close fit to the City’s
purpose. However, the City is unclear as to what purpose the Ordinance is intended
to further. First, the City claims that the Ordinance is a “response to the undeniable
and unprecedented affordable housing crisis sweeping the region.” Brief of Appellee
at 3. Yet it also claims that measures intended to “address housing affordability
generally” have “no bearing on the interest the Ordinance is designed to further.” Id.
This bait and switch reflects the City’s failure to employ less-restrictive alternatives

http://www.courts.wa.gov/content/Briefs/A08/958131%20App's%20
Opening%20Brief.pdf
7

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to addressing affordable housing issues. See Rubin v. Coors Brewing Co., 514 U.S.
476, 491 (1995); Thompson v. Western States Med. Ctr., 535 U.S. 357, 373 (2002);
Opening Brief at 36-37 (offering other means of helping Seattleites afford housing).
The City’s new “interest” is to determine the impact of a new technology. But
this proposal collapses means and end to evade the City’s failure to consider
alternatives for addressing the Ordinance’s expressly stated purpose: to address the
region’s affordable housing crisis. The moratorium is intended solely to further that
end. See ER 17 (justifying the Ordinance because “Seattle’s housing market has
become very competitive over the past decade, causing scarcity issues for tenants”).
The lack of consideration for less-restrictive alternatives and the lack of concern for
evidence conflict with the principle “that regulating speech must be a last—not
first—resort. Yet it seems to have been the first strategy the Government thought to
try.” Thompson, 535 U.S. at 373.
The City also argues that the Ordinance is not underinclusive because, without
rental bidding platforms, “it is very difficult to imagine rent bidding occurring on a
scale that would have any measurable impact on the rental housing market.” Brief
of Appellee at 39-40. Yet the City has no evidence that rental bidding platforms
themselves have had or will have “any measurable impact” greater than the impact
of bidding that may occur in the absence of such platforms. Moreover, the City itself
cited to the multiple studies in foreign countries as supposed evidence that bidding
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causes problems for the housing market—yet these studies only addressed bidding
in the absence of bidding platforms. See SA 020; SER 16-17. If one assumes Seattle
is anything like these far-flung locations (as the City does), then similar nonplatform bidding has been going on for years without the City’s intervention (or,
apparently, knowledge). The City’s decision to strangle a new technology that has
yet to have any measurable impact while allowing a similar process to go on for
decades is irrational and underinclusive. See Bernstein v. U.S. Dep’t of State, 974 F.
Supp. 1288, 1307 (N.D. Cal. 1997) (“[D]ramatically different treatment of the same
materials depending on the medium by which they are conveyed is not only
irrational, it may be impermissible under traditional First Amendment analysis.”).
CONCLUSION
Wysingle and Rentberry respectfully ask that this Court reverse the federal
district court and enjoin the rent-bidding moratorium.
DATE: October 4, 2019.

Respectfully submitted,

s/ ETHAN W. BLEVINS
Ethan W. Blevins
Brian T. Hodges
Pacific Legal Foundation
255 South King Street, Suite 800
Seattle, Washington 98104
Telephone: (425) 576-0484
E-mail: EBlevins@pacificlegal.org
E-mail: BHodges@pacificlegal.org

James M. Manley
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Fax: (916) 419-7747
E-mail: JManley@pacificlegal.org

Attorneys for Plaintiffs – Appellants
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CERTIFICATE OF SERVICE
I hereby certify that on October 4, 2019, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
s/ ETHAN W. BLEVINS
Ethan W. Blevins

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CERTIFICATE OF COMPLIANCE FOR BRIEFS
9th Cir. Case Number: 19-35308
I am the attorney or self-represented party.
This brief contains 5,814 words, excluding the items exempted by Fed. R. App.
P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P. 32(a)(5)
and (6).
I certify that this brief (select only one):
[x] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P.
29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R.
32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b)
because (select only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint
brief.
[ ] complies with the length limit designated by court order dated _______.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 322(a).
DATE: October 4, 2019.

s/ ETHAN W. BLEVINS
Ethan W. Blevins
Attorney for Plaintiffs – Appellants

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