The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Nat'l Ass'n of Realtors Bans "Harassing Speech" or "Hate Speech"—Anywhere, Any Time—by Members


The policy is here:

REALTORS® 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.

The Realtors are a private organization, so this isn't a First Amendment violation, just as blacklisting of supposedly "un-American" employees in the 1950s wasn't a First Amendment violation. But it strikes me as potentially quite dangerous, especially given that National Association of Realtors membership appears to be quite important professionally to real estate agents; apparently,

in many parts of the country, NAR membership is required to gain access to the Multiple Listing Service, a searchable online database that sorts available real estate properties by parameters such as square footage, acreage, architectural style and much more. "If I were to lose access to that it would potentially devastate my ability to perform my career duties," a Realtor commented on NAR's Facebook page.

One way of thinking about this would be to ask what we'd think of this policy:

REALTORS® must not use speech supportive of unlawful violence, arson, or destruction of property, whether targeting political leaders, police officers, businesses, political organizations, or others.

Would we think that it's good that private professional organizations are suppressing such speech, on the theory that such speech codes can help give people confidence that the professionals they're dealing with support law and order? Or would we think that, even if most calls for unlawful violence are improper, there shouldn't be professional blacklists of people based on their ideological views?

This is especially so because what one group has done, other groups in other fields will be likely to feel pressured to do as well—and of course we've seen how broad and ill-defined the label "hate speech" has become. John Murawski (RealClearInvestigations) has more:

The sweeping prohibition applies to association members 24/7, covering all communication, private and professional, written and spoken, online and off. Punishment could top out at a maximum fine of $15,000 and expulsion from the organization.