Introduction

In the landmark case of Zillow, Inc. v. Miller, the United States Court of Appeals for the Sixth Circuit addressed significant constitutional questions regarding the Kentucky Open Records Act ("KORA"). Zillow, a for-profit real estate corporation, challenged Kentucky's fee structure for accessing public records on the grounds that it unjustly discriminated between commercial and non-commercial requestors, thereby violating the First and Fourteenth Amendments. This commentary delves into the background of the case, the court's reasoning, the precedents cited, and the broader implications of the judgment.

Summary of the Judgment

The Sixth Circuit reversed the district court's decision, which had previously declared the "newspaper exception" within KORA unconstitutional. The appellate court held that the distinction KORA makes between commercial and non-commercial requestors is content-neutral and does not infringe upon constitutional protections. Consequently, the court affirmed the constitutionality of KORA's fee structure, including the exemptions for newspapers, radio, television stations, and entities involved in litigation. The district court's injunction, which subject both Zillow and newspapers to enhanced fees, was vacated, and the case was remanded with instructions to grant summary judgment to the Kentucky Department of Revenue and the respective Property Valuation Administrators (PVAs).

Analysis

Precedents Cited

The court extensively referenced several key precedents to support its decision:

• United Reporting Publishing Corp. v. Los Angeles Police Department: This case established that facial overbreadth challenges to laws regulating access to government information are generally impermissible unless the plaintiff can demonstrate a clear First Amendment injury.
• AMELKIN v. McCLURE: Addressed similar issues regarding Kentucky statutes regulating access to public records and reinforced that as-applied challenges warrant First Amendment scrutiny.
• Sorrell v. IMS Health Inc.: Further clarified limitations on facial challenges to overbroad laws affecting speech.
• City of Austin v. Reagan National Advertising of Austin, LLC: Discussed the content-neutrality of regulations based on function or purpose rather than content itself.
• Reed v. Town of Gilbert: Provided guidelines on determining whether a law is content-based by analyzing if it regulates speech based on topic or message.
• Central Hudson Gas & Electric Corp. v. Public Service Commission: Though not directly cited, it underpins the standard for commercial speech regulation, emphasizing content neutrality.

Legal Reasoning

The court's legal reasoning centered on several pivotal points:

• Content-Neutral Distinction: The court determined that KORA's differentiation between commercial and non-commercial requestors is based on the purpose of information usage rather than the content itself. This aligns with content-neutral regulations that do not target specific speech topics or messages.
• Exceptions to Commercial Fees: The statutory exceptions for newspapers, broadcasting stations, and litigation-related requests were deemed permissible. These exceptions do not impose content-based discrimination but rather serve to facilitate essential public communications and legal processes.
• Facial vs. As-Applied Challenges: While Zillow attempted both facial and as-applied challenges, the court primarily focused on the as-applied challenge, given precedent limitations on successful facial overbreadth claims in similar contexts.
• Strict Scrutiny Not Required: Since the distinction was deemed content-neutral, it did not necessitate strict scrutiny. Instead, rational basis review was applied, and the court found that the statute was rationally related to a legitimate state interest in recouping the costs associated with providing public records to commercial entities.

Impact

This judgment has profound implications for public records access and information dissemination:

• Affirmation of Content-Neutral Fee Structures: By upholding KORA's fee differentiation, the court validates the use of content-neutral criteria for accessing public records, providing a framework for other states to structure their public records laws similarly.
• Limitations on Overbreadth Challenges: The ruling reinforces the doctrine that facial overbreadth challenges to public records access laws are generally untenable unless accompanied by a direct First Amendment injury.
• Protection for Traditional Media and Legal Processes: The upheld exceptions ensure that essential services like news media and legal proceedings can access information without undue financial burdens, supporting the public's right to information and the functioning of the judiciary.
• Guidance for Future Litigation: Legal practitioners will reference this case when structuring challenges against public records laws, particularly in arguing the content-neutrality and rational basis of fee structures.

Complex Concepts Simplified

Commercial vs. Non-Commercial Purpose

Commercial Purpose: Utilization of public records for profit-making activities, such as resale, solicitation, or leasing of services. Entities like Zillow can be classified as having a commercial purpose when they use public data to generate revenue.

Non-Commercial Purpose: Use of public records without the intent to profit, such as for personal research, journalism, or legal defense. Public agencies can charge only the actual costs of reproducing records for non-commercial requestors.

Facial vs. As-Applied Challenges

Facial Challenge: A legal argument that a statute is unconstitutional in all or most of its applications, claiming it cannot be separated from its unconstitutional aspects.

As-Applied Challenge: A challenge focused on how a statute affects the specific circumstances of the plaintiff, arguing that it was applied in an unconstitutional manner in a particular case.

Content-Neutral Regulation

A regulation is deemed content-neutral if it does not target speech based on its topic, message, or viewpoint. Instead, it focuses on the time, place, or manner of speech, or other non-speech related criteria.

Strict Scrutiny vs. Rational Basis Review

Strict Scrutiny: The highest level of judicial review. Applied to regulations that are content-based or infringe upon fundamental rights. The government must show that the law serves a compelling interest and is narrowly tailored to achieve that interest.

Rational Basis Review: The most lenient form of judicial review. Applied to content-neutral regulations. The government must demonstrate that the law is rationally related to a legitimate interest.

Conclusion

The Sixth Circuit's decision in Zillow, Inc. v. Miller reinforces the constitutionality of distinguishing between commercial and non-commercial requestors in access to public records under Kentucky's Open Records Act. By upholding KORA's fee structure as content-neutral and rationally related to legitimate state interests, the court provides a clear precedent for balancing public access to information with the financial realities of providing such access. This judgment not only delineates the boundaries within which states can regulate access fees but also safeguards essential exceptions that support journalism and legal processes. Moving forward, this case will serve as a pivotal reference point for similar litigations and the continued evolution of public records laws across the United States.