The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0010p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
ZILLOW, INC.,
│
Plaintiff-Appellee/Cross-Appellant, │
│
v. │
> Nos. 23-5300/5301
│
THOMAS B. MILLER, Commissioner of the Kentucky │
Department of Revenue; BRAD MCDOWELL, Property │
Valuation Administrator for Shelby County, │
Kentucky; KELLIE LANG, Property Valuation │
Administrator for Franklin County, Kentucky; JASON │
SCRIBER, Property Valuation Administrator for Henry │
County, Kentucky; BLAKE ROBERTSON, Property │
Valuation Administrator for Owen County, Kentucky; │
JILL M. MAHONEY, Property Valuation Administrator │
for Trimble County, Kentucky; JADA BRADY, Property │
Valuation Administrator for Clark County, Kentucky, │
Defendants-Appellees (23-5300), │
│
│
KENTUCKY PRESS ASSOCIATION, INC.; AMERICAN CITY │
BUSINESS JOURNALS, INC., dba Louisville Business │
First, │
Intervenor Plaintiffs-Appellants/Cross-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.
No. 3:19-cv-00049—Gregory F. Van Tatenhove, District Judge.
Argued: March 19, 2024
Decided and Filed: January 16, 2025
Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 2
_________________
COUNSEL
ARGUED: Michael P. Abate, KAPLAN, JOHNSON ABATE & BIRD LLP, Louisville,
Kentucky, for the Newspapers. Richard W. Bertelson, III, OFFICE OF LEGAL SERVICES
FOR REVENUE, Frankfort, Kentucky, for the County Valuation Administrators. Darren W.
Ford, FARUKI PLL, Cincinnati, Ohio, for Zillow, Inc. ON BRIEF: Michael P. Abate, Burt A.
(Chuck) Stinson, KAPLAN, JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, for the
Newspapers. Richard W. Bertelson, III, OFFICE OF LEGAL SERVICES FOR REVENUE,
Frankfort, Kentucky, for the County Valuation Administrators. Darren W. Ford, John C.
Greiner, FARUKI PLL, Cincinnati, Ohio, for Zillow, Inc. Daniel J. Grabowski, OFFICE OF
THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae.
MOORE, J., delivered the opinion of the court in which GIBBONS, J., concurred.
BOGGS, J. (pp. 22–29), delivered a separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Kentucky’s Open Records Act (“KORA”)
provides access to public records. It distinguishes between requestors with commercial and non-
commercial purposes and permits agencies to impose enhanced fees on requestors with
commercial purposes. The statute provides, however, that commercial purposes do not include
publication in a newspaper or periodical, use by a radio or television station in its news or
informational programs, or use in litigation or claims settlement.
Zillow, Inc. (“Zillow”) is a for-profit corporation that publishes, among other things,
information about properties (including their tax history and price) on its website, which is free
for users to access. Zillow routinely requests information from governmental agencies regarding
pricing and tax information, to keep its website current. When Zillow requested information
from several Kentucky property valuation administrators (“PVAs”), including the six named in
this action, the PVAs determined that Zillow’s requests had a commercial purpose and responded
with quotes for thousands of dollars. Zillow sued the Kentucky Department of Revenue and the
PVAs, arguing that the Kentucky statute violated the First and Fourteenth Amendments facially
and as applied.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 3
Turning first to Zillow’s facial challenge, the district court held that the commercial/non-
commercial purpose distinction did not violate the First or Fourteenth Amendments, but that the
“newspaper exception” did. It consequently severed the newspaper exception from the rest of
the Kentucky statute. The upshot of the district court’s decision was that both Zillow and
newspapers (who were not at that time party to the action) became subject to enhanced fees. The
Kentucky Press Association and American City Business Journals (collectively, “the Press”)
intervened. The Press and Zillow appealed.
On appeal, we turn first to Zillow’s as-applied challenge. We hold that the commercial-
fee statute does not violate the First Amendment as applied to Zillow and reverse the district
court’s order declaring the “newspaper exception” unconstitutional because the commercial/non-
commercial purpose distinction, including its three exceptions, do not impermissibly
discriminate based on the content of Zillow’s speech. Accordingly, we reverse the district
court’s grant of partial summary judgment to Zillow, vacate the permanent injunction entered by
the district court, and remand with instructions to grant summary judgment to the PVAs.
I. BACKGROUND
A. Kentucky’s Open Records Act
KORA provides that “applicant[s] shall have the right to make abstracts of the public
records and memoranda thereof, and to obtain copies of all [nonexempt] public records.” Ky.
Rev. Stat. § 61.874(1). Public agencies are authorized to charge applicants a “reasonable fee.”
Id. § 61.874(3)–(4). The reasonable fee is determined by whether the requestor has a
“noncommercial” or “commercial” purpose. Id. A “commercial purpose” is defined as “the
direct or indirect use of any part of a public record or records, in any form, for sale, resale,
solicitation, rent, or lease of a service, or any use by which the user expects a profit either
through commission, salary, or fee.” Id. § 61.870(4)(a) (emphasis added). However, the term
commercial purpose excludes:
(1) Publication or related use of a public record by a newspaper or periodical
[(“the newspaper exception”)];
(2) Use of a public record by a radio or television station in its news or other
informational programs; or
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 4
(3) Use of a public record in the preparation for prosecution or defense of
litigation, or claims settlement by the parties to such action, or the attorneys
representing the parties.
Id. § 61.870(4)(b). Noncommercial purpose is not defined by statute and, accordingly, we
presume it refers to all other purposes not defined as “commercial.”
When an applicant seeks records for a “noncommercial” purpose, a Kentucky public
agency “may prescribe a reasonable fee for making copies” of such records, but the fee “shall not
exceed the actual cost of reproduction.” Ky. Rev. Stat. § 61.874(3). By contrast, when an
applicant seeks records for a “commercial” purpose, the public agency may additionally
prescribe reasonable fees reflecting the cost of “staff required to produce a copy of the public
record or records” and the costs associated with the “creation, purchase, or other acquisition of
the public records.” Id. § 61.874(4)(a), (c).
KORA applies, with certain exemptions and additions, to county-level PVAs and their
records of property taxes, valuations, and sales. Ky. Rev. Stat. § 133.047. Under the PVA-
related statute, if an individual seeks information about their own property, “or any other person,
including the press, seek[s] information directly related to property tax assessment . . . or similar
matters,” they can be charged the cost of reproduction. Id. § 133.047(4)(c); see id. § 61.874(3).
However, if a requestor has a “commercial or business purpose,” they may be charged a
reasonable fee, as defined by KORA, including fees for “personnel time.” Id. § 133.047(4)(b).
“Personnel time” is defined as “the cost to the agency to create any mechanical processing, data
collection, or data creation; the staff required to process, produce, collect, or create data or
information; or the cost to the agency for the creation, purchase, or other acquisition of
information.” Id. § 133.047(4)(b)(2). The state-level Department of Revenue develops a
“reasonable fee schedule to be used in compensating for the cost of personnel time expended in
providing information and assistance to persons seeking information to be used for commercial
or business purposes.” Id. § 133.047(4)(b). The fee schedule lists charges such as copy charges
($0.10); fax charges ($2.00 for a fax to a local number or $5.00 to a long-distance number); deed
plotting ($10.00 per tract); and requests for comparable sales ($5.00 per property and $2.00 for
each additional building), among others. R. 1-1 (PVA Commercial Fee Guidelines at 1–3) (Page
ID #34–36). When requestors seek records for a “commercial” purpose, they must also submit a
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 5
“Request for Reproduction of PVA Public Records and Contract for Commercial Users,” R. 1-2
(Request for Reproduction) (Page ID #37), and a “Contract and Fee Schedule for Commercial
Users of PVA Office Records For Use When Non-Geographic Information System (GIS)
Records are Requested,” R. 1-3 (Contract & Fee Schedule) (Page ID #39). As clarified at oral
argument, all requestors—with commercial or non-commercial purposes—can avoid fees if they
retrieve the records in person.
B. Zillow’s Information Requests
Zillow operates as a for-profit corporation and is publicly traded. R. 61-1 (Decl.
Jonathan Mabe ¶ 3) (Page ID #3029). “Zillow owns and operates a portfolio of real estate and
home-related brands” that focuses on “all stages of the home lifecycle” and aims to “empower[]
consumers with unparalleled data, inspiration[,] and knowledge around homes.” Id. ¶ 4.
Zillow’s website (“Zillow.com”) is its most prominent brand and provides free access to “a
living database of more than 110 million U.S. homes,” including information regarding a
property’s price history. Id. ¶ 5. According to Zillow, around 131 million users access
Zillow.com (and its corresponding app) each month. Id. ¶ 7 (Page ID #3030). Rather than
charging these users for accessing Zillow.com, Zillow receives “revenue from selling lead
generation and advertising space on its webpages to other businesses.” Id. ¶ 8. Zillow “regularly
makes public records requests to state officials,” to ensure the information on its website is
current. Id. ¶ 10.
In 2019, Susan Noto, a Source Acquisition Specialist at Zillow, emailed PVAs for Clark
County, Franklin County, Henry County, Owen County, Shelby County, and Trimble County,
requesting tax-assessment data pursuant to KORA. Each county PVA determined that, for the
purposes of Noto’s request, Zillow was a commercial requestor, and each PVA responded with a
quote of what it would charge Zillow for the record information. The assessed fees for Zillow’s
requests ranged from $9,924.40 (Franklin County), R. 54-6 (Franklin Cnty. Emails at 1) (Page
ID #1248), to $40,746.65 (Shelby County), R. 52-4 (Shelby Cnty. Invoice at 5) (Page ID #958).1
1
Henry County would not provide a quote until Zillow filled out additional forms, R. 54-8 (Henry Cnty.
Emails at 1) (Page ID #1252), but its PVA confirmed that it viewed Zillow as a commercial user and would have
charged Zillow as such, R. 56 (Dep. Jason Scriber at 27–28) (Page ID #1468).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 6
The PVAs viewed Zillow as seeking records for a commercial purpose for reasons including
Zillow’s status as a real-estate business, the fact that Zillow was requesting information about
parcels that it did not own, and the PVAs’ understanding that Zillow would use the data to
attempt to generate a profit. R. 49 (Dep. Rebecca Johnson at 13–14) (Page ID #390–91); R. 51
(Dep. Jill Mahoney at 28–30) (Page ID #598–99); R. 52 (Dep. William Brad McDowell at 22–
26) (Page ID #797–98); R. 53 (Dep. Jason Neely at 29–30) (Page ID #980–81); R. 55 (Dep.
Blake Robertson at 28–29) (Page ID #1285); R. 56 (Dep. Jason Scriber at 23, 29–30 (Page ID
#1467, 1468–69).
C. Procedural History
Based on the PVAs’ determination that Zillow was seeking records for a commercial
purpose and thus subject to enhanced fees, Zillow filed suit against the PVAs and the Kentucky
Department of Revenue, claiming that KORA violated the First and Fourteenth Amendments,
both facially and as applied. R. 1 (Compl. ¶¶ 1–2) (Page ID #3). Both sides filed motions for
summary judgment.
The district court began with Zillow’s facial challenge, holding that regulating access to
government information can implicate the First Amendment. Zillow v. Bork, 593 F. Supp. 3d
619, 628–29 (E.D. Ky. 2022).2 The district judge then divided the inquiry in two parts,
considering, first, whether the commercial/non-commercial purpose distinction was content-
neutral, and second, whether the exception to the enhanced fee for newspapers was
constitutional. The district court determined that “[t]he commercial/non-commercial purpose
distinction [was] content-neutral,” and reasoned that “when access to government records is at
issue, the First Amendment is only implicated when there is a content-based distinction.” Id. at
629. Based on this reasoning, the district court concluded that there was no need to conduct
“[f]urther analysis of the First Amendment challenge to the commercial/non-commercial purpose
distinction.” Id. at 629, 633.
2
Daniel Bork has since been replaced by Thomas Miller, who appears on appeal.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 7
The district judge then separately evaluated the newspaper exception to the commercial-
purpose fee. Id. at 631. Applying strict scrutiny, the district court held that the “newspaper
exception” violated the First and Fourteenth Amendments because it “allows some speakers to
access the tax roll files at a lower cost” and was not narrowly tailored to a compelling
government interest. Id. at 631–34. The district court also held that the commercial/non-
commercial distinction did not implicate the Equal Protection Clause because it did not treat
similarly situated persons differently, id. at 633, but that the newspaper exception was subject to
the same standard of review as the free-speech claim to which it was tied, and the newspaper
exception likewise failed strict scrutiny, id. at 634.
Having concluded that the newspaper exception, § 61.870(4)(b)(1), was unconstitutional,
the district court simply severed it rather than striking down the entire commercial-fee statute.
Id. at 635–36. The end result of the district court’s analysis was to uphold the commercial versus
noncommercial differential and to eliminate the exception for newspapers. In short, due to
Zillow’s lawsuit, both Zillow and newspapers would be subject to the full commercial-purpose
requestor fees.
After the district court issued its Opinion and Order, Zillow filed a motion to alter the
judgment and the Press filed an unopposed motion to intervene for the limited purpose of
appealing. The Press argued that the district court’s ruling “benefit[ted] only the government . . .
at the press’s expense” because it rendered newspapers subject to enhanced fees, just like Zillow.
R. 72 (Mot. to Intervene at 5) (Page ID #3162). The magistrate judge granted the Press’s motion
to intervene. R. 73 (Order Granting Mot. to Intervene) (Page ID #3190). Upon the district
court’s denial of Zillow’s motion to alter the judgment, R. 88 (Mem. Op. & Order) (Page ID
#3251–57), the Press filed their notice of appeal. Zillow also filed a notice of appeal.
The Press argue that the district court erred by reaching Zillow’s facial challenge at all,
because the law regulates only access to records, not speech. Press Br. at 21. The Press further
contend that the newspaper exception is a constitutionally permissible speech subsidy, and that
the district court improperly severed it from the statute. Id. at 30, 55. Zillow argues that the
commercial-purpose statute violates the First Amendment because it requires consideration of
the “identity of the requestor and the manner in which they intend to use the information” when
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 8
determining who is eligible for reduced fees. Zillow Br. at 15. Zillow contends that the district
court erred by treating the newspaper exception separately and severing it from the statute. Id.
In response, the PVAs argue that the statutory scheme does not regulate speech and, in any
event, is content neutral. PVA Br. at 13. But, in the alternative, the PVAs seek affirmance of the
district court’s order severing the newspaper exception alone. Id. at 27.
II. DISCUSSION
A. Standard of Review
“We review de novo a district court’s grant of summary judgment.” Griffin v.
Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). At this stage, we “must view the evidence in the
light most favorable to the non-movant and resolve all factual disputes in his favor.” Id.
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Facial Versus As-Applied Challenge
Zillow has framed its First Amendment claims around two arguments, which it
characterizes as a facial challenge and an as-applied challenge. In its facial challenge, Zillow
argues that the statute providing for “commercial purpose” fees is facially unconstitutional
because the commercial/noncommercial distinction, and its three exceptions, embed an
unjustifiable content- and speaker-based distinction into state law. See Zillow Br. at 15. In its
as-applied challenge, Zillow argues that in concluding that Zillow was a commercial requestor,
the PVAs relied on the content of Zillow’s speech and Zillow’s character as a commercial entity.
Id. at 16. The district court evaluated what Zillow framed as a facial challenge and did not reach
Zillow’s as-applied challenge. Zillow, 593 F. Supp. 3d at 627, 632–34.
The Press argue that the district court erred by considering Zillow’s facial challenge.
They contend that binding precedent forecloses facial First Amendment challenges to statutes
regulating access to government information. In addressing this argument, we must briefly
distinguish among the forms of constitutional challenges. An as-applied constitutional challenge
“consists of a challenge to the statute’s application only to the party before the court.”
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Amelkin v. McClure, 205 F.3d 293, 296 (6th Cir. 2000) (“Amelkin III”).3 By contrast, a facial
challenge consists of a challenge that shows either “(1) that there truly are ‘no’ or at least few
‘circumstances’ in ‘which the Act would be valid,” or (2) that a court cannot sever the
unconstitutional textual provisions of the law or enjoin its unconstitutional applications.”
Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (en banc) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)) (citations omitted). In the context of free-speech
challenges, however, courts “lighten this load” and permit parties to challenge statutes based on
the statute’s effect on other parties not before the court. Id. at 335–36. “Due to the risk that
‘enforcement of an overbroad law’ may ‘deter[] people from engaging in constitutionally
protected speech’ and may ‘inhibit[] the free exchange of ideas,’ the courts will strike a law on
its face ‘if it prohibits a substantial amount of protected speech’ both ‘in an absolute sense’ and
‘relative to the statute’s plainly legitimate sweep.’” Id. at 336 (quoting United States v.
Williams, 553 U.S. 285, 292 (2008)). These are known as overbreadth challenges.
In Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32
(1999) (“United Reporting”), the Supreme Court held that plaintiffs cannot raise facial
overbreadth challenges to laws that merely regulate access to government information when the
requestor does not claim their own First Amendment rights were violated by the statute. That
case concerned a state law restricting access to the addresses of arrestees and crime victims. Id.
at 40. A private publishing service that provided such names and addresses to its customers,
including attorneys and insurance companies, challenged the law as facially in violation of the
First Amendment. Id. at 34–37. Because the publishers “had neither ‘attempt[ed] to qualify’ for
access to the government’s information nor presented an as-applied claim, . . . the Court assumed
that the plaintiff had not suffered a personal First Amendment injury and could prevail only by
invoking the rights of others through a facial challenge.” Sorrell v. IMS Health Inc., 564 U.S.
3
The Amelkin cases addressed the constitutionality of two Kentucky statutes, one of which limited access to
police-accident reports and the other of which permitted the state custodian to charge commercial requestors of
public documents a fee for producing the copies. After the Supreme Court issued its opinion in Los Angeles Police
Department v. United Reporting Publishing Corp., 528 U.S. 32 (1999), the Court vacated and remanded our
decision in Amelkin v. McClure, 168 F.3d 893 (6th Cir. 1999) (“Amelkin II”). In Amelkin v. McClure, 205 F.3d 293,
297 (6th Cir. 2000) (“Amelkin III”), we remanded the case back to the district court to evaluate an “as-applied”
challenge to the “commercial requestor” statute. On remand, the district court granted summary judgment to the
defendants, which the plaintiffs appealed in Amelkin v. McClure, 330 F.3d 822, 828 (6th Cir. 2003) (“Amelkin IV”).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 10
552, 569 (2011) (quoting United Reporting, 528 U.S. at 40). The United Reporting plaintiffs
could not succeed by invoking only the rights of others, because the government’s mere refusal
to supply information did not threaten to chill the speech of others not before the Court.
We applied United Reporting in Amelkin III in similar circumstances. In Amelkin III,
several attorneys and chiropractors, as well as a proposed publisher of a commercial newspaper,
challenged Kentucky statutes restricting access to police accident reports. 205 F.3d at 295. The
theory relied upon by the plaintiffs, and by our court in an earlier iteration of the case, was that
the records law was unconstitutional because it limited how newspapers not before the court
could use records they received from the state. Amelkin v. McClure, 168 F.3d 893, 897 (6th Cir.
1999) (“Amelkin II”). This facial overbreadth theory was barred by United Reporting. Because
the law did not otherwise “carry the threat of prosecution for violating the statute and it does not
restrict expressive speech, but simply regulate[d] access” to government information, we
concluded that plaintiffs’ facial overbreadth challenge failed and remanded to the district court
for consideration of their as-applied challenge. Amelkin III, 205 F.3d at 296.
We agree with the Press that United Reporting and Amelkin III would foreclose a facial
overbreadth challenge in this case. The statute here—like the statute at issue in those cases—
concerns a regulation of access to government information; it does not restrict how requestors
can use information in their possession, nor does it carry any threat of prosecution or
enforcement that might chill speech more broadly. Accordingly, Zillow could not rely merely on
the unconstitutionality of the law as applied to others to facially invalidate the fee statutes.
Zillow could not argue, for example, that a limitation on radio and television stations’ use of the
requested records rendered the statute facially unconstitutional. See Amelkin v. McClure, 330
F.3d 822, 826 (6th Cir. 2003) (“Amelkin IV”). That the fee statutes affecting access might be
unlawful as applied to other hypothetical requestors would not be a basis for facially invalidating
the statute.
However, Zillow raises both facial and as-applied challenges to the statute here. Zillow
seeks to assert “its own rights” and the rights of similar “requestors classified as ‘commercial
purpose’ requestors.” See Zillow Br. at 24. Unlike the plaintiffs in United Reporting, Zillow has
requested certain records and has been advised that it was a “commercial purpose” requestor
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subject to enhanced fees. Zillow’s central challenge is that when the PVAs determined that it
had a “commercial purpose,” they considered Zillow’s identity as a speaker and the content of its
intended speech. See Zillow Br. at 25. Accordingly, Zillow’s claim is that it suffered a First
Amendment injury by virtue of the statute’s application.
In light of United Reporting and Amelkin III, the district court should not have begun
with Zillow’s facial challenge, before considering whether Zillow’s First Amendment rights
were actually injured. For if Zillow cannot demonstrate that it suffered a First Amendment
injury because of the fee statute, it cannot ride on the effect that the statutes might have on
others. Of course, these challenges are not wholly distinct from each other, and analyzing
whether the statute impermissibly discriminates against Zillow in an as-applied challenge calls
for evaluation of the statutory text. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
331–36 (2010). This is hardly unusual; assessment of a statute within an as-applied challenge
may “necessarily yield the conclusion that a statute is wholly invalid” because the statute has, for
example, an impermissible purpose or is not narrowly tailored as applied to the individual
plaintiff or those relevantly like it. Richard H. Fallon, Jr., Commentary, As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1338 (2000). Indeed, when the
Amelkin case returned to us for review of the plaintiffs’ as-applied challenge, we considered
whether the statute, as applied to the plaintiffs, conditioned access to government information on
“the nature of the recipient’s speech” or “disfavor[ed] discrete groups on content-related
grounds.” Amelkin IV, 330 F.3d at 828. In the interest of judicial efficiency, we consider the
statutory component of Zillow’s as-applied challenge.
C. First Amendment Implications
Having now framed the challenge in this case, we address a threshold question raised by
the PVAs as to the merits: whether regulations on access to government information have First
Amendment implications at all. It is well established that “[n]either the First Amendment nor the
Fourteenth Amendment mandates a right of access to government information.” Houchins v.
KQED, Inc., 438 U.S. 1, 15 (1978) (plurality op.). In general, the government can decline to
disclose information in its possession without violating the First Amendment. See United
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Reporting, 528 U.S. at 40. “[T]here is no constitutional right to obtain all the information
provided by FOIA laws.” McBurney v. Young, 569 U.S. 221, 232 (2013).
We have recognized, however, that once the government decides to provide public access
to information, the First Amendment places some limits on the government’s discretion to decide
who may receive information and on what terms. Although the majority opinion in United
Reporting held that the requestors could not maintain a facial challenge to the statute, in
concurrences and a dissent eight justices “recognized that restrictions on the disclosure of
government-held information can facilitate or burden the expression of potential recipients and
so transgress the First Amendment.” Sorrell, 564 U.S. at 569. Justice Scalia’s concurrence, for
instance, noted that in an as-applied challenge, a requestor of information might prevail if a
restriction upon access “allow[ed] access to the press . . . but at the same time denie[d] access
to” other persons. United Reporting, 528 U.S. at 42 (Scalia, J., concurring). Justice Ginsburg
remarked that “selective disclosure” could “impermissibly burden speech” if premised on
suspect grounds, such as viewpoint. Id. at 42–43 (Ginsburg, J., concurring). Further, Justice
Stevens noted that a “more difficult” question is “presented when the State makes information
generally available, but denies access to a small disfavored class.” Id. at 45 (Stevens, J.,
dissenting).
In Amelkin IV, we similarly recognized that an as-applied challenge to government
regulations on access to information invited First Amendment scrutiny. 330 F.3d at 827–28.
This position has been adopted by at least three other circuits when they have analyzed as-
applied challenges to restrictions on access to governmental information. See Boardman v.
Inslee, 978 F.3d 1092, 1107 (9th Cir. 2020) (“[T]he government is not insulated from First
Amendment scrutiny when it discriminates invidiously in the provision of government-controlled
information.”); Fusaro v. Cogan, 930 F.3d 241, 255 (4th Cir. 2019) (“[A] First Amendment
claim that challenges suspect conditions on access to government information must be available,
at least where the plaintiff alleges circumstances indicating improper interference with protected
speech.”); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1512–13 (10th Cir. 1994) (“[T]he
First Amendment can be implicated by the line drawing in Colorado’s access-to-records
statute.”).
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Zillow’s challenge to the KORA fee statutes, therefore, triggers First Amendment
scrutiny, because it draws lines as to the terms on which requestors may receive government
information. It is true that KORA does not ultimately restrict any party’s access to property-
value information, nor does it restrict what the requestor might say with that information. Cf.
Sorrell, 564 U.S. at 564–66. Rather, the Act permits governmental entities to charge higher fees
when a requestor plans to use information for a “commercial” purpose compared with a
requestor with a “noncommercial” purpose. We do not think that this spares KORA’s fee
structure from First Amendment scrutiny because “[t]he distinction between laws burdening and
laws banning speech is but a matter of degree.” United States v. Playboy Ent. Grp., Inc., 529
U.S. 803, 812 (2000). Here, Zillow is asked to pay thousands of dollars to access property-
valuation records that would be disclosed at significantly lower rates to requestors without
commercial purposes. Accordingly, we proceed to consider whether the lines drawn by
Kentucky with respect to fees can weather constitutional scrutiny as applied to Zillow.
D. First Amendment Analysis
As we have explained, governmental restrictions on access to information may violate the
First Amendment. In Amelkin IV, we construed the separate opinions set out in United Reporting
as guidance for reviewing an as-applied challenge to a statute regulating access to information.
We identified the following principles, which we apply here. First, the government may not
“condition the disclosure of [information] on the nature of the recipient’s speech,” such that a
recipient is foreclosed from receiving information based on what the individual plans to say with
it. Amelkin IV, 330 F.3d at 828; see Sorrell, 564 U.S. at 564–66. Second, the government may
not “single[] out a small group for unfavorable treatment based either on the content or the
viewpoint of the group’s speech.” Amelkin IV, 330 F.3d at 828; see Sorrell, 564 U.S. at 564–66.
If such distinctions are drawn, the burden shifts to the government to justify its actions. We are
concerned, of course, that the government will use access to information to benefit its preferred
speech and to suppress disfavored speech.
As to the first principle, we note that the fee statutes, as applied to Zillow, “do[] not
restrict or even regulate expression.” Amelkin IV, 330 F.3d at 827. To the extent Zillow can
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 14
obtain the information it seeks, “the statute in question places no restriction on how [it] may use
that information.” Id.
Indeed, Zillow’s arguments seem to focus primarily on the second principle. Zillow
contends that the distinctions drawn in the statute impermissibly discriminate on speaker- and
content-based grounds. Citing the three exceptions to the definition of commercial purpose,
Zillow contends that the category discriminates among speakers, see Zillow Br. at 21, 27–29, and
requires consideration of the content of the requestor’s intended speech.4
“Government regulation of speech is content based if a law applies to particular speech
because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576
U.S. 155, 164 (2015). Determining whether a statute is content based is a delicate matter. “[A]
regulation of speech cannot escape classification as facially content based simply by swapping
an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the same
result.” City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 74 (2021).
Likewise, “[b]ecause ‘speech restrictions based on the identity of the speaker are all too often
simply a means to control content,’ we have insisted that ‘laws favoring some speakers over
others demand strict scrutiny when the legislature’s speech preference reflects a content
preference.’” Reed, 576 U.S. at 170 (first quoting Citizens United, 558 U.S. at 340; then quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994)).
To begin, we do not think that the fundamental distinction drawn by the statute—between
requestors with commercial and those with non-commercial purposes—distinguishes based on
the content of the requestor’s intended use for the records received. A commercial purpose is
defined as the use of information for “sale, resale, solicitation, rent, or lease of a service, or any
use by which the user expects a profit either through commission, salary, or fee.” Ky. Rev. Stat.
§ 61.870(4)(a). By its terms, KORA’s differential treatment does not reflect favor or disfavor
4
As noted above, the district court construed Zillow as raising two separate arguments, one regarding the
commercial/non-commercial purpose distinction and another regarding the newspaper exception. Zillow, 593 F.
Supp. 3d at 629. The district court also held that Zillow had waived any challenge to the other exceptions to the
commercial-purpose statute. Id. at 630. We do not read Zillow’s briefs in the same way. We understand Zillow to
be challenging the commercial-purpose statute, and to treat the exceptions for newspapers, among others, as aspects
of that challenge. See R. 61 (Zillow’s Mot. for Summ. J. at 11–12) (Page ID #3018–19); Zillow Br. at 21–22, 25.
Accordingly, we see no reason to ignore the other exceptions when reviewing the statute on appeal.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 15
toward the content of a requestor’s message. Indeed, PVAs do not need to evaluate the topic or
message of any speech to determine a requestor’s status under KORA. Two requestors could
intend to engage in the exact same speech, one for profit and one not, and this would suffice to
distinguish the cases for purposes of the statute. In this way, KORA’s commercial/non-
commercial purpose distinction is much like the on-/off-premises distinction found to be content-
neutral in City of Austin. There, too, the signs could advertise the same business, the only
meaningful difference being their location. Although determining whether a requestor’s
intended use has a profit-purpose may require some examination of the nature of the requestor’s
proposed “function or purpose,” it does “not single out any topic or subject matter for differential
treatment.” See City of Austin, 596 U.S. at 71, 74.
To be sure, the category of “commercial purpose” includes the category of speech known
as “commercial speech,” but we do not think it is so limited. The “core notion of commercial
speech [is] ‘speech which does no more than propose a commercial transaction.’” Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (quoting Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976)). Accordingly, when determining
whether speech is properly characterized as “commercial,” we consider whether the speech
involves an advertisement, whether it references a product, and whether the motivation for
speaking is economic. See id. at 66–67; Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 112–113 (6th
Cir. 1995). The definition of commercial purpose in the statute here goes beyond this category
by encompassing “any use by which the user expects a profit either through commission, salary,
or fee.” Ky. Rev. Stat. § 61.870(4)(a).
The dissent argues that the distinction between a commercial and noncommercial purpose
is content based because it “allow[s] the government to inquire about, and ultimately assess fees
for, what use Zillow makes of the data—whether for profit or not, that means what kind of
speech Zillow uses the data for.” Dissent at 23. We fail to see how this distinction is content
based. The distinction drawn has nothing to do with the actual content created by the requestor,
only whether that content will be used to obtain a profit. The statute does not even require any
investigation into what the requestor will be talking about.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 16
The distinction drawn here is, accordingly, nothing like the one drawn in Sorrell, which
was calibrated to silence pharmaceutical marketing speech. Sorrell, 564 U.S. at 564. Nor is the
statute relevantly like the one at issue in Discovery Network, Inc. v. City of Cincinnati, 946 F.2d
464 (6th Cir. 1991), aff’d sub nom. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993), the other case on which the dissent principally relies. Discovery Network concerned an
ordinance that prohibited the distribution of publications that advertised products or directed
attention to businesses or events for the purpose of promoting sales. Discovery Network, 946
F.2d at 466 n.2. Essentially, the ordinance discriminated against core commercial speech. Here,
as we have explained, the statute does not discriminate between commercial and noncommercial
speech but looks only to whether the requestor seeks some profit on account of their speech.
Unlike Discovery Network, commercial fees are not levied based on whether someone is crafting
an advertisement. The dissent tacitly admits as much in its subsequent acknowledgment that the
commercial-purpose category includes speech that the “First Amendment staunchly protects.”
Dissent at 27; see id. at 24. Yet, the dissent fails to appreciate that the application of the
commercial fee statute to both commercial and noncommercial speech undermines the dissent’s
purported content-based line.
Zillow also argues that, even if the commercial/non-commercial purpose distinction is not
content based, the exceptions render it so. Pointing to the statutory elements of the exceptions
that speak to the type of intended speech—“[p]ublication or related use” for newspapers or
periodicals, “news or other informational programs” for radio and television stations, and “[u]se
. . . in the preparation for prosecution or defense of litigation, or claims settlement” by attorneys
or litigants, Ky. Rev. Stat. § 61.870(4)(b)—Zillow argues that the statute requires officials to
delve into the substance of the requestor’s intended speech and price records based on what they
planned to say. See Zillow Reply Br. at 9 (“[T]he law requires an examination of . . . how the
requestor has used and intends to use the public records.”).
The Press, by contrast, ask us to view the exceptions (or at least the newspaper
exception), “as a subsidy, not a burden.” Press Br. at 30. According to the Press, the law
“simply carves out one potential for-profit use of public records—publication in a newspaper or
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 17
periodical—from the general definition of ‘commercial purpose,’ then subsidizes that use by
charging lower reproduction fees.” Id. (citation omitted).5
Ultimately, whether we view the exceptions as subsidies for certain speakers or as
features of the commercial-purpose definition, Zillow has not demonstrated that the law
discriminates impermissibly in violation of the First Amendment. We note at the outset that
Zillow has not alleged viewpoint discrimination, so we turn to its arguments that the exceptions
embed some content- or speaker-based discrimination.
We have recently recognized that applying an exception can render a statute content-
based to the extent it requires consideration of the topic or subject matter of the speech to
determine whether the speech qualifies for a given exception. Norton Outdoor Advert., Inc. v.
Village of St. Bernard, 99 F.4th 840, 850 (6th Cir. 2024). Accordingly, in Norton Outdoor
Advertising, we held that the ordinance exempting public-service signs from certain regulations
was content based because it required consideration of “whether the content of a given sign
serves a ‘public service,’” a determination “laden with the types of content-based and value-
judgment determinations that call for strict scrutiny under the First Amendment.” Id.
The exceptions to the commercial-purpose definition here are unlike the public-service
exception in Norton Outdoor Advertising. Whereas that ordinance drew distinctions based on
5
The upshot of viewing the exceptions as a subsidy is that the government generally does not violate the
First Amendment by subsidizing select speech except when the government selects speech based on its viewpoint.
Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545–46 (1983); see Ysursa v. Pocatello Educ. Ass’n,
555 U.S. 353, 359–61 (2009); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995). The
government may subsidize speech based on its content or speaker without offending the First Amendment. Regan,
461 U.S. at 545–46 (holding that less favorable tax treatment of organizations engaged in lobbying speech did not
violate the First Amendment).
Zillow objects to characterizing the exceptions as subsidies. Zillow argues, first, that other entities beyond
newspapers get exceptions too. Zillow Br. at 25. But this is relevant in the subsidy context only if the government
discriminated based on viewpoint, which Zillow does not allege. Zillow further objects that “the legislature did not
provide a mere subsidy, but removed a substantial financial obstacle divorced from the actual cost to the agency of
reproducing the records.” Id. at 25–26. Yet this is merely to describe a subsidy in other words. Finally, Zillow cites
Justice Ginsburg’s concurrence in United Reporting, in which she described government provision of information as
a “kind of subsidy to people who wish to speak” and commented that “once a State decides to make such a benefit
available to the public, there are no doubt limits on its freedom to decide how that benefit will be distributed.” Id. at
26 (quoting United Reporting, 528 U.S. at 43 (Ginsburg, J., concurring)). While this argument has more bite,
Justice Ginsburg was not conclusive as to the exact standard to be applied, and she cited Regan for the proposition
that “if the award of the subsidy is not based on an illegitimate criterion such as viewpoint,” the state may
discriminate. United Reporting, 528 U.S. at 43 (Ginsburg, J., concurring).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 18
the subject matter of the signs themselves, the statute here does not. In determining whether an
exception applies to Zillow, the local official need only determine whether Zillow is a
“newspaper or periodical,” “a radio or television station,” or a party or attorney to a legal action.
Ky. Rev. Stat. § 61.870(4)(b). As relevant here, insofar as Zillow is not any of these, officials
need not consider the content of Zillow’s speech at all. And as we have explained, in this as-
applied challenge, Zillow cannot prevail on a theory that, for example, when determining
whether a news organization not before the court seeks to access records, the official might need
to consider the content to determine if their intended speech comprises a “[p]ublication or related
use.” Ky. Rev. Stat. § 61.870(4)(b); see Amelkin IV, 330 F.3d at 826.
Zillow further argues that the exception of certain requestors from commercial fees is
impermissible speaker-based discrimination. Classifying a law as speaker based is “only the
beginning—not the end—of the inquiry.” Reed, 576 U.S. at 170; see Barr v. Am. Ass’n of Pol.
Consultants, 591 U.S. 610, 620–21 (2020) (plurality op.). Our touchpoint is whether a drawn
distinction evinces a preference among “topic[s] discussed or the idea[s] or message[s]
expressed.” Reed, 576 U.S. at 163. Yet, Zillow does not explain why this purported speaker-
based discrimination embeds any content preference. See Zillow Br. at 21, 27–29. As we noted
in Amelkin IV, a statute limiting access to government information would be “constitutionally
suspect if it had singled out a small group for unfavorable treatment based either on the content
or the viewpoint of the group’s speech.” 330 F.3d at 828 (emphasis added). Perhaps we are to
believe that by providing lower-price information to news-like organizations and not to other
commercial-purpose requestors, Kentucky evinces a preference for news as opposed to other
types of speech made for a profit. If this is Zillow’s argument, however, it is difficult to
distinguish from the argument rejected in Amelkin IV. In that case, the statute made accident
reports available only to the parties and news-gathering organizations. Even though that statute
inherently embedded a preference for news-gathering organizations over other speakers, we did
not find this distinction “disfavor[ed] discrete groups on content-related grounds.” Amelkin IV,
330 F.3d at 827–28; see also Leathers v. Medlock, 499 U.S. 439, 447–49 (1991) (rejecting the
proposition that discriminating between newspapers and cable providers for tax treatment was
content-based or “threaten[ed] to suppress the expression of particular ideas or viewpoints”).
The trouble for Zillow here, as for the requestors in Amelkin IV, is that Zillow is not a member of
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 19
any discrete, disfavored group, but merely a commercial-purpose requestor not eligible for an
exception.6, 7
D. Equal Protection
Zillow also claims that the Kentucky commercial-fee statutes violate the Fourteenth
Amendment’s Equal Protection Clause. Zillow Br. at 11–13. “The Equal Protection Clause of
the Fourteenth Amendment commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 439 (1985). To prevail on an equal-protection claim, a petitioner must show that a
similarly situated person has been treated disparately. Northville Downs v. Granholm, 622 F.3d
579, 586 (6th Cir. 2010). “Once disparate treatment is shown, the legal standard for analyzing
any equal protection claim depends upon the classification used by the government.” Id. “The
general rule is that legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473
U.S. at 440. However, when fundamental rights are at issue, legislation is reviewed according to
the applicable standard, i.e., if a statute imposes a content-based restriction on speech, it will
generally be reviewed under strict scrutiny. Chambers v. Stengel, 256 F.3d 397, 401 (6th Cir.
2001).
Zillow’s “equal protection claim largely rises or falls with their free speech claim.” First
Choice Chiropractic, LLC v. DeWine, 969 F.3d 675, 684 (6th Cir. 2020). Having determined
that the commercial-purpose statutes do not discriminate based on content, we apply rational-
basis review to Zillow’s claim. We have no doubt that a rational basis supports Kentucky’s
difference in fees for commercial and non-commercial requestors. As the PVAs explain in their
6
Zillow does not argue that the statute imposes a content-neutral regulation of its speech, and we treat any
such challenge as forfeited.
7
The dissent contends that Amelkin IV is distinguishable because the relevant statute in that case
“prohibited access to the general public—with a few exceptions” whereas here, “KORA grants access to the general
public and then burdens access for certain parties based on the content of their intended speech.” Dissent at 26.
This argument fails because the commercial-purpose distinction is not based on the content of the intended speech.
Further, as a commercial-purpose requestor, Zillow is not part of a discrete group engaged in specific speech, like
“attorneys and chiropractors.” Amelkin IV, 330 F.3d at 828.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 20
brief, “[t]he distinction allows a public agency to recoup costs associated with collecting,
creating, storing and producing information from individuals using that information for
commercial gain as opposed to individuals seeking the information for other reasons.” PVA Br.
at 26. That certain commercial requestors such as newspapers and radio stations are exempted
does not render the distinction arbitrary, for the state has a legitimate interest in ensuring the
press and parties to litigation can obtain records at a reasonable fee.8
E. Zillow’s Additional As-Applied Challenge
Zillow finally argues that we should, alternatively, grant relief or remand to the district
court on what Zillow has framed as its as-applied challenge. This challenge, which was not
addressed by the district court, turns on the way that the local PVAs administered the
commercial-purpose statute and its various exceptions with respect to Zillow. See Zillow Br. at
36–37. According to Zillow, the commercial-purpose statute was unconstitutionally applied
when the local PVAs took account of the content of Zillow’s website and the nature of its
business in determining that it was subject to enhanced fees (and ineligible for the newspaper
exception). Id. at 36–39.
We disagree. The deposition testimony simply goes to the question whether Zillow had a
commercial purpose or not and whether Zillow was a newspaper or not. For example, when
asked “[w]hat about Zillow . . . made them not a newspaper,” former PVA official Neely replied,
“[t]hey print no news” and “[t]hey give no insight behind anything.” Zillow Br. at 37 (quoting
R. 53 (Neely Dep. at 34) (Page ID #973)). PVA official Robertson responded that Zillow’s
website did not include the types of things like “weather, sports . . . [and] news” that he expected
in a newspaper. Id. (quoting R. 55 (Robertson Dep. at 33) (Page ID #1278)). Zillow argues that
because these officials’ judgments were based on the “scope of a newspaper’s content” and
turned on some examination of the content of Zillow’s website, they were impermissibly
content-based judgments. Id. at 38. Yet, we know from City of Austin that even “restrictions on
speech may require some evaluation of the speech and nonetheless remain content neutral.”
596 U.S. at 72. As we have explained, we do not think that the mere need to examine the nature
8
We do not reach the question of severability.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 21
of Zillow’s business and the type of content on its website (compared with a newspaper) renders
the statute content based. Accordingly, we decline to remand for consideration of these issues.
III. CONCLUSION
Consistent with our conclusion that KORA’s commercial-purpose fee statute is
constitutional as applied to Zillow, we REVERSE the district court’s grant of partial summary
judgment to Zillow, VACATE the permanent injunction entered by the district court, and
REMAND to the district court with instructions to grant summary judgment to the PVAs.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 22
_________________
DISSENT
_________________
BOGGS, Circuit Judge, dissenting. The majority is correct that KORA implicates the
First Amendment. KORA’s two-tiered fee structure distinguishes between those requesting tax-
roll records for “any use by which the user expects a profit” and everyone else. Ky. Rev. Stat.
§ 61.870(4)(a). The majority and dissent agree that KORA thus does burden more than simply
“commercial speech.” See Maj. Op. at 16. However, the distinction between commercial and
non-commercial requesters is, on its face, content-based. And because it is content-based, the
proper analytical framework is strict scrutiny.
In Discovery Network, Inc. v. City of Cincinnati, we struck down a Cincinnati law that
prohibited the placement of newsracks with “commercial” material in certain public spaces, but
allowed newsracks with “non-commercial” content, defined to include conventional newspapers
such as the New York Times. 946 F.2d 464, 472 (6th Cir. 1991). That law did not pass
constitutional muster for numerous reasons—one being that it was an impermissible content-
based restriction on speech that could not survive strict scrutiny. See id. at 472–73. The
Supreme Court affirmed and made it clear that the commercial/non-commercial distinction
within the Cincinnati statute was content-based. City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 429 (1993) (“Under the city’s newsrack policy, whether any particular newsrack
falls within the ban is determined by the content of the publication resting inside that newsrack.
Thus, by any commonsense understanding of the term, the ban in this case is ‘content based.’”).
Like KORA, the Cincinnati law at issue in Discovery Network was not concerned with
any specific ideas espoused by any of the publications. It swept up all sorts of publications with
varying subject matter. See Discovery Network, 946 F.2d at 465–66. The only common thread
between the plaintiff publications affected by the statute was that they were “commercial.” So
the law was content-based because commercial character determined whether certain speech was
regulated or not, and that was a distinction based on the message conveyed.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 23
Admittedly, KORA’s commercial/non-commercial distinction is not as blatantly
content-based as many statutes that may come before us are. KORA does not, for instance,
prohibit Zillow from editorializing about the tax-roll data. The law doesn’t really care about the
format of Zillow’s presentation of the data, or the subject matter of any publication that uses the
data. But the law does allow the government to inquire about, and ultimately assess fees for,
what use Zillow makes of the data—whether for profit or not, that means what kind of speech
Zillow uses the data for. This distinction falls squarely within the meaning of content-based.
“This commonsense meaning of the phrase ‘content based’ requires a court to consider
whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker
conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting Sorrell v. IMS Health,
Inc., 564 U.S. 552, 565–66 (2011)). Again, as the majority opinion correctly notes, KORA does
not explicitly restrict or even regulate any particular subject matter. But “[s]ome facial
distinctions based on a message are obvious, defining regulated speech by particular subject
matter, and others are more subtle, defining regulated speech by its function or purpose.” Ibid.
The distinction that KORA draws between commercial and non-commercial use may be subtler
than distinctions drawn with reference to subject matter, but it remains a “distinction[] drawn
based on the message a speaker conveys, and, therefore . . . subject to strict scrutiny.” Id. at
163–64.1
The majority opinion omits a crucial point in its analysis. It states that the statute “does
not reflect favor or disfavor toward the content of a requestor’s message.” Maj. Op. at 14–15.
But the “crucial first step,” Reed, 576 U.S. at 165, is determining whether the statute is content-
based on its face—without consideration of whether the statute expressly prefers or disfavors
certain ideas or whether the state has a compelling justification, see ibid. (“A law that is content
based on its face is subject to strict scrutiny regardless of the government’s benign motive,
content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated
1
The Supreme Court’s decision in City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61
(2022), seemed to limit the reach of the “function or purpose” language in Reed. But Austin merely stated that a
“classification that considers function or purpose is [not] always content based.” Id. at 74. It does not stand for the
proposition that a statute that facially distinguishes between particular functions or purposes of speech is never
content-based. Moreover, the issue in Austin was an off-premises/on-premises regulation on commercial signage
and not a commercial/non-commercial distinction.
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 24
speech.” (quoting Discovery Network, 507 U.S. at 429)), or the commercial nature of the
regulated speech, see Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 703 (6th Cir. 2020).
Here, as in Discovery Network, the “very basis for the regulation is the difference in
content between [non-commercial speech] and commercial speech.” 507 U.S. at 429. And the
message that the speaker will convey controls the government action. See Sorrell, 564 U.S. at
564 (2011) (“[T]he [statute] prohibits pharmaceutical manufacturers from using the information
for marketing. The statute thus disfavors marketing, that is, speech with a particular content.”).2
KORA disfavors “commercial” use of the tax-roll data as opposed to, say, a researcher who will
use the information to advance her tenure prospects or to raise the profile of her podcast. This is
a content-based distinction on speech, so it must face strict scrutiny. Int’l Outdoor, 974 F.3d at
703 (“[A] regulation of commercial speech that is not content-neutral is still subject to strict
scrutiny under Reed.”).
To be sure, the Supreme Court has touched on this issue since we decided International
Outdoor—to the extent that it suggested in dicta that Reed may not always apply to commercial
speech. In Austin, the Court stated that “[t]he Metromedia Court did not need to decide whether
the off-premises prohibition was content based, as it regulated only commercial speech and so
was subject to intermediate scrutiny in any event.” 596 U.S. at 73 (citing Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 507–12 (1981) (plurality opinion)). The Austin Court also
stated in a footnote that “[t]he Court of Appeals further considered the possibility that the code
provisions regulated only commercial speech, such that only intermediate scrutiny would apply
even if the provisions were content based.” Id. at 68 n.3. But Austin upheld a sign regulation
because the regulation was content-neutral and applied to both commercial and non-commercial
speech. The regulation was “agnostic as to content” and thus a “location-based, rather than
2
The statute in Discovery Network and KORA differ in two significant ways. First, the statute in Discovery
Network made distinctions about speech already in the speaker’s possession. KORA instead regulates the
dissemination of information in the government’s possession. But as the majority opinion correctly holds, Maj. Op.
at 13—KORA is more than a simple “right to access” scheme. It implicates the First Amendment because the
government has opened up record access to the public and then put barriers to that access for a group of requesters.
See Amelkin v. McClure, 330 F.3d 822, 827–29 (6th Cir. 2003). Second, the statute in Discovery Network operated
as a ban, while KORA only burdens speech through a fee structure. But the “‘distinction between laws burdening
and laws banning speech is but a matter of degree’ and . . . the ‘Government’s content-based burdens must satisfy
the same rigorous scrutiny as its content-based bans.’” Sorrell, 564 U.S. at 565–66 (quoting United States v.
Playboy Ent. Grp., Inc., 529 U.S. 803, 812 (2000)).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 25
content-based, determination.” Norton Outdoor Advert., Inc. v. Vill. of St. Bernard, 99 F.4th
840, 848 (6th Cir. 2024) (quoting Austin, 596 U.S. at 69). In any event, we are bound by Circuit
precedent and not Supreme Court dicta.
So, looking beyond International Outdoor’s clear holding, the standard governing
content-based restrictions on commercial speech is admittedly a bit muddled. Of course, Central
Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980),
governs content-neutral restrictions on commercial speech.3 But it does not then automatically
follow that its intermediate-scrutiny test applies to all commercial speech—even if the
distinctions at issue are content-based. That outcome would contravene clear Sixth Circuit and
Supreme Court precedent.
In R.A.V. v. City of St. Paul, the Court applied strict scrutiny to a content-based restriction
on fighting words. 505 U.S. 377, 394 (1992). Because commercial speech has traditionally
received more First Amendment protection than fighting words have, id. at 422–24 (Stevens,
White & Blackmun, JJ., concurring in the judgment), some lower courts have recognized that
strict scrutiny could apply to content-based restrictions of commercial speech. See, e.g., MD II
Ent., Inc. v. City of Dallas, 28 F.3d 492, 495 (5th Cir. 1994); Valley Broad. Co. v. United States,
107 F.3d 1328, 1331 n.3 (9th Cir. 1997); Holding v. Mun. of Anchorage, 63 P.3d 248, 253 n.27
(Alaska 2003). Since then, the Court has applied Central Hudson to some content-based
restrictions on commercial speech, see, e.g., United States v. Edge Broad. Co., 509 U.S. 418,
426–30 (1993) (lottery advertisements); Rubin v. Coors Brewing Co., 514 U.S. 476, 482 (1995)
(alcohol labels); Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 184 (1999)
(casino advertisements), but not all, see, e.g., Playboy Ent. Grp., 529 U.S. at 813 (sexual
television programming); Sorrell, 564 U.S. at 559 (pharmaceutical advertisements).
And even when it applied Central Hudson, the Court rejected the idea that “all
commercial speech regulations are subject to a similar form of constitutional review simply
because they target a similar category of expression.” 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 501 (1996) (plurality opinion); see also id. at 518 (Thomas, J., concurring in part
3
Even so, Central Hudson “has been applied with a severity that borders on strict scrutiny.” Robert Post,
The Constitutional Status of Commercial Speech, 48 U.C.L.A. L. Rev. 1, 42 (2000).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 26
and in the judgment) (rejecting Central Hudson). And it emphasized that the relevant distinction
between intermediate and strict scrutiny is not between commercial and non-commercial speech
but rather between “content-based speech restrictions” and “traditional or ordinary economic
regulation of commercial activity that imposes incidental burdens on speech.” See Barr v. Am.
Ass’n of Pol. Consultants, 591 U.S. 610, 620 (2020) (plurality opinion) (applying strict scrutiny
to a law exempting debt-collection calls from the federal prohibition on robocalls); see also id. at
639–40 (Breyer, Ginsburg & Kagan, JJ., concurring in part and dissenting in part)
(characterizing debt collection as commercial speech). So a content-based restriction that is
directed at speech, such that it imposes more than “incidental” burdens, is subject to strict
scrutiny, regardless of whether it restricts commercial speech. And here, the same data could be
used by Zillow to note on its site that Elon Musk has a house worth 8 figures (for which it would
pay a hefty fee), or to say that it is obscene to have such an expensive house (no fee)—surely a
content-based speech burden.
Moreover, we have already contemplated a statutory framework like KORA’s
commercial/non-commercial distinction and said that it would require heightened scrutiny. In
Amelkin v. McClure, we said that a different Kentucky “right to access” statute was “neither a
direct regulation of expression nor a purely content-neutral law of general application.” 330 F.3d
822, 827 (6th Cir. 2003). The statute in Amelkin prohibited the public from accessing accident
reports but allowed access to certain groups—the press and the accident parties. We said that it
likely did not offend the First Amendment.
But that statute prohibited access to the general public—with a few exceptions. KORA
grants access to the general public and then burdens access for certain parties based on the
content of their intended speech—exactly what the Amelkin court said would make a statute
“constitutionally suspect.” See id. at 828. We said:
The statute would also be constitutionally suspect if it had singled out a small
group for unfavorable treatment based either on the content or the viewpoint of
the group’s speech. See Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229
(1987) (holding a state sales tax scheme unconstitutional that taxed general-
interest magazines, but exempted newspapers and religious, professional, trade,
and sports magazines). If, for example, the statute provided for the disclosure of
accident reports to the general public, but prohibited their disclosure to attorneys
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 27
and chiropractors, this principle would be implicated. See Legi-Tech, Inc. v.
Keiper, 766 F.2d 728, 731 (2d Cir. 1985) (holding a state statute unconstitutional
that permitted the general public to access a state-maintained database of pending
legislation, but denied such access to “those entities which offer for sale the
services of an electronic information retrieval system which contains data relating
to the proceedings of the legislature”).
Ibid.
Accordingly, I would hold that the commercial/non-commercial distinction in KORA is a
content-based distinction on speech that requires strict scrutiny and remand for consideration
under that proper standard. See Int’l Outdoor, 974 F.3d at 708.
I agree with the majority that KORA’s scope is so broad that it not only regulates purely
commercial speech, but also sweeps into its coverage a great deal of non-commercial speech.
But though the majority and dissent agree that KORA burdens both commercial and
non-commercial speech, we part on whether that distinction can be called “content-based,” and
thus implicates full First Amendment protection. Even a brief consideration of the following
examples reveals that the First Amendment staunchly protects much of the profit-generating
speech that KORA now seeks to burden.
Imagine, for example, a political commentator who charges readers a fee to access online
critiques of local elected officials. Should that commentator seek information from Kentucky
records to use in political discourse, KORA would then allow the state government to burden
that speech, because “the user expects a profit either through commission, salary, or fee.”
Ky. Rev. Stat. § 61.870(4)(a). Yet “interactive communication concerning political change” is
core political speech; the government must overcome a “well-nigh insurmountable” burden
should it ever try to regulate in this space. Meyer v. Grant, 486 U.S. 414, 422, 425 (1988). Or
consider a documentary filmmaker, who seeks access to Kentucky public records while
factchecking her movie’s script. According to the statutory language in KORA, which the
majority clearly accepts, any attempt by the filmmaker to profit from her artistic expression has
transformed that expression into commercial speech, and caused it to lose some of its First
Amendment protection. Such an argument has already been squarely considered and rejected by
the Supreme Court. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). At its most
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 28
extreme, KORA’s language, which penalizes “any use by which the user expects a profit . . .
[via] salary” might even apply to a professor seeking tenure at a university. Should he access
Kentucky state records while writing a paper that ultimately wins him tenure, any resulting
increase in that professor’s salary implicates KORA’s increased burden on speech with a
“commercial purpose.” Yet academic freedom “is of transcendent value to all of us and . . . .
therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall
of orthodoxy over the classroom.” Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S.
589, 603 (1967).
In making these distinctions, KORA does authorize the government to investigate how
certain words and concepts are used and intended. In my view that cannot be called
“content-neutral” examination. KORA is thus subject to review under Reed, see Int’l Outdoor,
974 F.3d at 703–04, and under Reed, KORA’s plainly content-discriminatory structure mandates
that we apply strict scrutiny, 576 U.S. at 156.
I conclude by noting that, if the commercial-purpose/non-commercial-purpose scheme
does fail strict scrutiny, then the broadscale outcome is that the government cannot distinguish
between commercial-purpose and non-commercial-purpose requesters. But that could be
achieved in more ways than one. On one hand is a statutory scheme that does not charge any
requester. On the other is a scheme that charges commercial-purpose and non-commercial-
purpose requesters alike. There is no such bright line between news-gathering entities and for-
profit entities. See Discovery Network, 946 F.2d at 467 n.4. KORA’s attempt to draw such a
distinction is problematic because it requires that the government choose which entities are
focused “solely” on profit—as opposed to those who make millions or billions in the course of
virtuous purveying of “news” (“The Press”)—and then decide who is entitled to constitutional
protections.4 Deciding—on content-based grounds—what “merits classification” as The Press
4
Indeed, one argument that Zillow itself advances (and which the majority leaves for the district court to
consider) is that, regardless of whether KORA is constitutional, the company’s website is a “periodical” that
qualifies for the statute’s newspaper exception. Zillow Br. at 21, 26. The nature of this dilemma (determining
precisely who qualifies as “The Press”) is precisely why courts have long understood the First Amendment’s
Freedom of the Press Clause to apply not just to a select industry of organized publications, but rather to anyone
who uses the press (or its modern equivalents). See Eugene Volokh, Freedom for the Press as an Industry, or for
the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev., 459, 463–65 (2012).
Nos. 23-5300/5301 Zillow, Inc. v. Miller, et al. Page 29
resembles government licensing of The Press and risks “government interference into protected
activity.” Ibid.; see also Discovery Network, 507 U.S. at 423 n.19.
For each of these reasons, I respectfully dissent.