In Zillow, Inc. v. Miller, 126 F.4th 445 (6th Cir. 2025), the Sixth Circuit considered whether fee distinctions and newspaper exception provisions in the Kentucky Open Records Act (“KORA”) are constitutional. KORA provides access to public records and authorizes charges for reasonable fees. Challenged here was the fee distinction in KORA which permits public agencies to charge higher fees for public records requests made for “commercial purposes.” KRS 61.874(3)-(4). The so-called “newspaper exception” provides that “commercial purposes” specifically excludes 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. KRS 61.870(4)(b).
Zillow Inc. (“Zillow”) argued that the fee distinction and newspaper exception were unconstitutional, in violation of the First and Fourteenth Amendments. The Sixth Circuit disagreed and rejected Zillow’s claims in a 2-1 decision.1
Zillow’s Action
Zillow routinely requests pricing and tax information from governmental agencies to ensure its website is current, and Zillow users access this property information for free.2 Zillow’s action stemmed from its 2019 requests under KORA for property valuation records for use in updating its website. The PVAs determined that Zillow’s requests had a commercial purpose and responded with quotes ranging from ten to forty thousand of dollars per county.3 These records would be disclosed at significantly lower rates to requestors without commercial purposes.4
Zillow filed action in the U.S. District Court for the Eastern District of Kentucky, which upheld the fee distinction but severed the newspaper distinction from the statute, meaning that newspapers would also be subject to the enhanced fees as commercial purpose requestors.5 Though not part of the initial litigation, the Kentucky Press Association and American City Business Journals then intervened to appeal the District Court’s decision that the newspaper exception was unconstitutional.6 Zillow also appealed.
The Opinion
The Sixth Circuit held that the fee distinction between commercial and non-commercial purposes does not violate the First Amendment and reversed the district court’s order declaring the newspaper exception unconstitutional, remanding the case with instructions to grant judgement in favor of the PVAs.
i. First Amendment
Though recognizing that the First Amendment places some limits on the government’s discretion to decide who may receive the information after it chooses to provide public access, the Court determined that Zillow’s challenge triggered First Amendment scrutiny because the statute drew lines as to the terms on which requestors may receive government information.7 Although KORA does not ultimately restrict access to property-value information or the requestor’s use of such information, its fee structure still burdens commercial purpose requestors, and “[t]he distinction between burdening and banning speech is but a matter of degree.”8
Zillow argued that the distinctions drawn in the statute impermissibly discriminate on speaker- and content-based grounds. However, the Court ultimately determined that the fee distinction between commercial and non-commercial purposes and its exceptions “do not impermissibly discriminate based on the content of Zillow’s speech” in violation of the First Amendment9 Rather, the distinction was based only whether that content will be used to obtain a profit and had nothing to do with the actual content or intended content created by the requestor.10 Indeed, the Court reasoned, that PVAs had no need to evaluate a topic or a message of any speech to determine a requestor’s status under KORA, such that the distinction is content-neutral. And, even if the law is speaker based, the Court found Zillow did not explain why this embeds any content preference.11 Furthermore, as a commercial-purpose requestor, Zillow is not a member of any discrete, disfavored group.12
ii. Fourteenth Amendment
Zillow also argued the fee distinction violated the Fourteenth Amendment’s Equal Protection Clause in impermissibly treating similarly situated KORA requestors differently. However, because the Court determined that the commercial-purpose statutes did not discriminate based on content, it applied rational-basis review to Zillow’s equal protection claim.13 The Court determined that a rational basis undoubtedly supported the law’s fee distinction – i.e., allowing public agencies to recoup associated costs.14 The Court explained that the newspaper exception did not render the distinction arbitrary, as the state has a legitimate interest in ensuring the press can obtain records at a reasonable fee.15 Accordingly, the Court the fee distinction was similarly not violative of the Fourteenth Amendment.
The Dissent
In a dissenting opinion, Justice Boggs argued that the fee distinction between commercial and non-commercial requestors is, on its face, content-based and thus merits review under the framework of strict scrutiny.16 The dissent asserted that the majority missed the “crucial first step” in determining whether the statute is content-based on its face, without considering whether it expressly prefers or disfavors content. In determining the fee distinction in KORA was content-based, the dissent noted that “the very basis for the regulation is the difference in content between [non-commercial speech] and commercial speech” such that the message that the speaker will convey controls the government action.17 The dissent also took aim at the law’s “press exemption,” explaining that “Deciding—on content-based grounds—what ‘merits classification’ as The Press resembles government licensing of The Press and risks ‘government interference into protected activity.’”18 The dissent thus advocated that the case be remanded for consideration under the strict scrutiny analysis.
Now What?
Open records requests are helpful for accessing information and this decision does not impact this continued access. The Sixth Circuit’s holding maintains the status quo in allowing state agencies to charge higher fees to requestors with commercial purposes, and lower fees, typically the cost of creating a copy of requested records for non-commercial purposes, for non-commercial purposes, including newspapers and other media. Though not the focus of the appeal, it’s important to remember that requests made for purposes of litigation are deemed non-commercial. Though, as the Circuit Court noted, all requestors – even those with commercial purpose – can avoid fees by retrieving records in person.19 However, the holding does not foreclose a requestor’s ability to file a complaint using the procedures in KRS 61.880(4) if they feel the intent of KORA is being subverted, whether through excessive fees or excessive extensions of time.
Zillow’s deadline for filing a writ of certiorari to review is within 90 days after entry of the judgment.20
[1] Zillow, Inc. v. Miller, 126 F.4th 445 (6th Cir. 2025).
[2] Id. at 451.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 457-58.
[8] Id. at 458 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)).
[9] Id. at 451-52.
[10] Id. at 460.
[11] Id. at 462.
[12] Id. at 463.
[13] Id.
[14] Id.
[15] Id. at 464.
[16] Id.
[17] Id. at 466
[18] Id. at 469-470 (citations omitted).
[19] Id. at 453.
[20] U.S. Sup. Ct. Rule 13(1).
