CHICAGO, IL – In a shocking social policy move, the National Association of Realtors (NAR) has amended its professional ethics code to ban certain kinds of speech from its 1.4 million members. The move caused one expert to declare, “the dam has broken.”
The NAR, the nation’s largest trade organization, enacted a policy change which makes it a violation for Realtors to use harassing or hate speech against any “protected class.” Article 10 of the policy defines the “protected class” as based on “race, color, religion, sex, handicap, familial status, national origin, sexual orientation, and gender identity.”
The sweeping policy change applies to all members of the association and covers personal and private communications, whether written or spoken, online or offline. The policy sets a policy violation penalty of a maximum fine of $15,000 and expulsion from the association.
A memo from the association to members stated:
“Overall, although the proposal seeks to extend enforcement of the Code beyond its current limits of real estate transactions and real estate-related activities, this added reach will not increase a Realtor or Realtor-Principal’s liability under the law.
“Moving forward, NAR’s Professional Standards Committee will continue working to develop case interpretations to assist members and professional standards enforcement volunteers in understanding the Code’s applicability.”
NAR President Vince Malta praised the policy changes, telling members:
“I applaud NAR’s Board of Directors and our Professional Standards Committee for their efforts to raise the bar on the professionalism and private speech of America’s 1.4 million Realtors. Combatting and overcoming bigotry and injustice starts with each of us.
“Realtors today took tangible steps to ensure we are held to the highest possible standard while providing a mechanism of enforcement for those who violate our new policies.”
Part 4, Appendix XII — Appropriate Interpretation of Standard of Practice 10-5 and Statement of Professional Standards Policy 29: 10-5 prohibits REALTORS® from using harassing speech, hate speech, epithets or slurs based on the protected classes of Article 10. Policy 29 provi … pic.twitter.com/AboZ7E18oh
— REbySPHERE (@REbySphere) December 30, 2020
Robert Foehl, a professor of business ethics and business law at Ohio University, is concerned about the policy, telling Real Clear Investigations:
“The dam has broken, and other organizations will look at this. If this is good for real estate agents, why not attorneys, why not doctors?
“They’re going to be pressured to do what NAR has done. And that pressure is going to be very real because what organization wants to argue they should allow hate speech by their members?
“It feels unprecedented. The stretch and reach into the personal lives of the association members is a very intrusive move.”
NAR says complaints will be adjudicated through 1,100 local NAR associations. These associations will investigate complaints filed by any member of the public, and there will be no public reporting requirement.
Although First Amendment rights do not apply to private employers and organizations, there are other rights that the policy may violate. A federal court struck down a rule change in Pennsylvania that said lawyers could face professional misconduct charges for expressing bias, prejudice, harassment, or discrimination.
@SupremeCtofPA adopts PBA-supported Rule of Professional Conduct prohibiting harassment and discrimination in the practice of law. Read the news release: https://t.co/rbS0AWZtph pic.twitter.com/Om4X79YtQu
— Pa Bar Association (@pabarassn) June 9, 2020
The rule was added as an amendment to the Pennsylvania Rule of Professional Conduct and approved by the State Supreme Court. The new rule was set to take effect on December 8, 2020. The rule redefined professional misconduct as:
“(Professional misconduct) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.
“This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.”
Do you want to join our private family of first responders and supporters? Get unprecedented access to some of the most powerful stories that the media refuses to show you. Proceeds get reinvested into having active, retired and wounded officers, their families and supporters tell more of these stories. Click to check it out.
The rule would have limited the speech restrictions to the practice of law, but extended to continuing education, seminars, and other activities where education credit is awarded. Plaintiff Zachary Greenberg, a program officer for the Foundation for Individual Rights in Education, argued that the rule would be “unconstitutionally vague, overbroad, and consist of viewpoint-based and content-based discrimination.”
In the ruling tossing out the rule change, Judge Chad Kenney wrote:
“The government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance.
“Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.”
The judge said that the new rule would “hang over Pennsylvania attorneys like the sword of Damocles.”
University of California, Los Angeles (UCLA) Law Professor Eugene Volokh said the NAR policy change could lead to new a new “blacklist”:
“What we’re talking about is a new blacklist. One of the things that’s troubling about the National Association of Realtors’ position is that it is trying to deploy the organized economic power of this group in order to suppress dissenting political views among members.”
The NAR does not issue real estate licenses. However, NAR membership is required to access the Multiple Listing Service in many parts of the country. The listing service sorts available properties by several categories and is considered vital to real estate businesses.
NAR membership also provides access to training, networking, and the right for a real estate professional to call themselves a “Realtor,” NAR’s well-recognized title for members.
Member Eva-Jean Dalton reacted on the NAR Facebook page, posting:
“Sad day for me in my association. Who’s going to police this? We all have the right to free speech. This is opening up a can of worms, in my opinion. I feel like a child being told what to do. I’m wondering where this is all coming from? In my over 31 years in real estate, I’ve never seen or heard one of my fellow realtors doing anything to warrant this intrusive change in our code of ethics.”
— Real Estate Informer (@RealEstatePaper) November 4, 2020
Member Kim Peterson posted that she wanted to know when good manners were mandated:
“I’m a little shocked that this is a ‘new’ rule. In fact, isn’t this just common decency? When did we have to start litigating good manners?”
Michael Hoskinson posted that the NAR should read the United States Constitution:
“NAR should have spent more time reading the US Constitution and less time listening to left-wing pressure groups. It’s very simple: Hate Speech (whatever its moment-to-moment definition) cannot co-exist with the 1st amendment.
“Either you have free speech in your private life, or you do not. No arbitrary decision by NAR can take this right away from you. I look forward to NAR being sued into submission on this issue.”
Want to make sure you never miss a story from Law Enforcement Today? With so much “stuff” happening in the world on social media, it’s easy for things to get lost.