Realtors say free speech not for sale

NICK EICHER, HOST: Coming up next on The World and Everything in It: free speech for realtors.

Or not, in this case. In November, the National Association of Realtors adopted a revised ethics rule that bans so-called hate speech. And not just in the real estate office. The policy covers agents on and off the job, opening them to punishment for anything they say, any time, anywhere. The one time where location, location, location doesn’t matter.

MARY REICHARD, HOST: Well, as you might expect, that caused quite a stir among agents across the country, especially Christians. WORLD Digital reporter Steve West wrote about this recently and joins us now to talk about it.

Good morning, Steve!

STEVE WEST, REPORTER: Good morning, Mary.

REICHARD: Let’s start with the rule itself. What does it prohibit and what are the consequences for breaking it?

WEST: Well, it’s pretty straightforward in what it says. This is a new ethical rule for realtors. It says they “must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.” So, pretty comprehensive. 

REICHARD: Also sounds pretty vague.

WEST: Right. Neither hate speech nor harassing speech is defined. So, for example, a pastor who I corresponded with in preparing the article said that he might suffer consequences if he preached on the biblical view of marriage, or at least he wondered that. And it wouldn’t be far-fetched for someone out there to view his comments on same-sex marriage as hate speech.

REICHARD: No, it wouldn’t. Let’s say a complaint is filed and the realtor is found in violation. What happens?

WEST: Well, the organization has to investigate, even if the complaint’s ultimately found frivolous. And if they find a violation, the penalties can range from a fine of up to $15,000 to being kicked out of the group. And while realtors aren’t required to belong to the organization, being expelled could end their access to the Multiple Listing Service, or the MLS, a computerized database of properties. And that would likely be the end of many realtors’ businesses. 

REICHARD: You mentioned the pastor, but how have other realtors reacted?

WEST: Not surprisingly, no one I spoke to wanted to go on the record, but judging from their comments to me and others I viewed on Facebook, a lot of realtors are concerned about how the rule reaches into their personal lives as well as its possible misuse. For example, by a vindictive, disappointed buyer, or an envious fellow realtor, or, in the case of the pastor that I mentioned, someone looking to make a point. 

REICHARD: This is a First Amendment violation in principle but not in practice right, because the National Association of Realtors is a private organization? 

WEST: That’s right. The First Amendment only applies when the government restricts speech, but it’s important to note that when this kind of rule is passed it has a chilling effect on speech in general. People will self-censor out of fear of retaliation or even just disapproval. Speech, whether it’s protected by the First Amendment or not, needs to enjoy wide protection.

REICHARD: You quoted UCLA law professor Eugene Volokh in your story. What did he compare this to?

WEST: Yes. He compared it to what happened in the McCarthy era after WWII.  If you were thought to be a communist sympathizer, you could be blacklisted by employers; rendered unhireable, basically. 

REICHARD: Some of us might remember a similar situation involving lawyers. The American Bar Association proposed a broadly worded ban against potential harassment and discrimination. There’ve been some recent developments in the legal challenge to that, right?

WEST: That’s right. A federal court struck down a Pennsylvania ethics rule that was similarly worded to this one, saying its vague terms would “continuously threaten the speaker to self-censor.” So that’s helpful. Other organizations will try to get on the bandwagon, so those affected will need to be vigilant.

REICHARD: Steve West is a lawyer and writes the Liberties newsletter for WORLD Digital. You can sign up to get your weekly copy at WNG.org. Steve, thanks for joining us today!

WEST: My pleasure, Mary.

(AP Photo/Elaine Thompson, File) In this April 1, 2020 photo, a “For Sale” sign stands in front of a home that is in the process of being sold in Monroe, Wash., outside of Seattle. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.