Blacklisting Realtors’ speech

Some Realtors and free speech advocates are concerned that a new real estate hate speech policy goes too far in attempting to regulate off-the-job communication. The National Association of Realtors (NAR) in November 2020 adopted a revised ethics rule that is now percolating through state associations. It bars the group’s 1.4 million members from using “harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.” But the ban doesn’t just apply to business dealings—it also covers private conduct, meaning Realtors can face punishment for anything they do or say.

As a private organization, the NAR is not subject to the First Amendment’s free speech guarantee. But the broad scope of the rule means it could have a significant effect on individual expression. Many are concerned that the rule will encourage self-censorship or be used to punish unpopular opinions.

Penalties for breaking the rule include a fine that tops out at $15,000 and possible expulsion from the organization. While state boards give real estate licenses, expulsion from the NAR could cut off Realtors from the Multiple Listing Service, a searchable online database of properties. That could effectively end a Realtor’s business.

Eugene Volokh, a UCLA law professor, compared the economic threat facing Realtors to that facing those called out during post-WWII McCarthyism. “[B]lacklisting of supposedly ‘un-American’ employees in the 1950s wasn’t a First Amendment violation,” he wrote. “But it strikes me as potentially quite dangerous.”

Many members have expressed concern about the policy. When the organization announced the new rule on its Facebook page, self-identified LGBT member Patrick Harris commented he was “troubled” that it might be “abused [by] agents who simply want to ‘settle the score’ with someone.” A disappointed buyer or vindictive Realtor could comb the internet for material that offends them in any way to submit a complaint. Another commenter, Rondi Guess, appreciated the intentions behind the policy but lamented the organization’s overreach: “The call to extend your reach into the personal lives of Realtors is an invasion of privacy, an act that could … end up being slanderous, defamatory and could possibly ruin someone’s livelihood and life.”

Other professional organizations have grappled with similar questions. Christian lawyers rallied after the American Bar Association proposed a broadly worded ban against potential harassment and discrimination based on a host of characteristics, including sexual orientation and gender identity—though the rule doesn’t extend to off-duty behavior. Last month, a federal judge in Pennsylvania struck down the state’s version of the rule, reasoning that its vague terms would “continuously threaten the speaker to self-censor.”

Robert Föehl, a professor of business ethics and law at Ohio University, told RealClear Investigations that other professional associations would be pressured to follow NAR’s lead to avoid facing accusations of hate speech: “The dam has broken and other organizations will look at this.”