The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Late last year, the National Association of Realtors adopted a policy forbidding members from engaging in supposedly "harassing speech" or "hate speech" even in their private lives, entirely outside the context of real estate transactions. 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 (more on that below).
In any event, we're seeing now the potential scope of the policy: The Missoula Organization of Realtors (which is the Missoula County affiliate of the National Association) has concluded that a member of the public's complaint against Montana realtor Brandon Huber "if taken as true on its face, constitutes potentially unethical conduct [under the prohibitions on 'harassing speech' and 'hate speech'] and will be forwarded to the Professional Standards Committee"; Huber now faces a disciplinary hearing on Dec. 2, 2021. According to Huber's lawsuit against the Missoula Organization of Realtors,
Penalties for violating [the speech code] include a $5,000 fine and suspension or termination of membership privileges, including denial of access to the Multiple Listing Service (MLS), a searchable online database that sorts available real estate properties by parameters such as square footage, acreage, and architectural style.
The complaint was apparently based on the following incident (to quote the lawsuit):
[31.] Brandon Huber also serves as lead pastor for Clinton Community Church in Clinton, Montana….
[34.] For many years, the Church had partnered with the Missoula Food Bank for the "Kids Eat Free" summer lunch program, which involved the distribution of free lunches throughout the summer to families with children.
[35.] In June 2021, the Church discovered that the Missoula Food Bank included an LGBTQ "Pride" insert in its lunches that was contrary to the Church's teachings.
[36.] After discussing the matter with the Missoula Food Bank, the Church declined to participate further in the food bank's program.
[37.] Instead, the Church began providing a separate lunch program for the community.
[38.] The Church announced its reasoning for this change on July 2, 2021, in a letter distributed to congregants as well as on the Facebook page of a local Clinton community group.
[39.] This announcement included the following paragraph:
This year, as well as the past two years, we have partnered with the Missoula Food Bank for the "Kids Eat Free" summer lunch program. This has been a great honor for us to be able to support the kids and families in our community with these meals throughout the summer months. This past week we found printed material in the lunches that we were handing out, that went against our biblical doctrine. After conversations with the food bank, we have found out that our beliefs and that of the Missoula Food Bank do not align. Due to this, Clinton Community Church has decided to end our partnership with the Missoula food bank effective today July 2, 2021.
The complaint opined that, based on this, Huber "cannot separate his religious bias from his entire person and will continue to be inherently biased against the LGBTQIAS+ community in any and all circumstances." (The complaint also alleges that Huber referred to "gays being an abomination" and "defilement of scripture," but Huber's lawsuit claims that he had never made any such comments.)
Now naturally members of the public can criticize Huber, if they want, for his religious views (or secular views), and can decline to do business with him. But I think it's dangerous and improper for an important professional organization such as an Association of Realtors to threaten to expel members for expressing such views—just as it would be to threaten to expel them for (say) speech that praises or makes excuses of rioters, or expresses hostility to capitalism and capitalists, or (as the hate speech ban itself might do) sharply criticizes conservative Christianity.
Huber is suing the Association for a declaratory judgment that (1) punishing him for his speech violates the Montana Constitution, which provides that, "Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas" (emphasis added), and that (2) the Association of Realtors' speech code is too vague under contract law. I'm not sure whether his claim will prevail under Montana law, but I'm glad he's fighting this.
I should note that the National Association of Realtors and its state affiliates get various benefits under laws and regulations in various states, including Montana. A Montana regulation, for instance, provides
Each active licensee is required to complete a minimum of 12 hours of continuing property management education every licensing year … in property management continuing education courses that are:
(a) approved by the Association of Real Estate License Law Officials' (ARELLO) Distance Education Certification, or a state real estate licensing regulatory agency or real estate commission; or
(b) endorsed by a national, state, or local Association of REALTORS®, or any national, state, or local real estate, landlords, or property management association.
Oklahoma law appears to give the Oklahoma Association of Realtors and the National Association of Realtors an even more special role in this process (since it doesn't mention any other real-estate-related association). Laws in other states, such as Utah and West Virginia, give state Associations of Realtors the power to nominate members of various government boards.
It seems to me that state legislatures could and should provide that any such government-assigned powers will extend only to associations that don't discriminate in membership based on the members' race, religion, sex, constitutionally protected speech, and the like. Such nondiscrimination conditions attached to government-provided benefits are constitutional even as to purely ideological groups that seek, for instance, the sorts of benefits that universities routinely provide to all student groups, see Christian Legal Society v. Martinez (2010). They should be even more clearly constitutional and proper as to commercial professional groups, especially ones that get special benefits beyond those that other groups get.