The National Association of Realtors® (NAR) banned all “hate speech” by its members – not just in members’ professional capacity, but in every aspect of their lives. The policy changes were approved by the NAR Board of Directors during a meeting on November 13.
The policy on hate speech encompasses an array of broad issues: “harassing speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.” Collectively, these speech-related issues fall under what the NAR terms “public trust,” which also includes misappropriation of client or customer funds, or property and fraud that causes significant economic harm.
The announcement on its Facebook page was immediately met with criticism in the comments section. Most of the criticisms concerned the association’s authority over members’ personal lives and impositions of censorship, as well as the ability for the policy to be abused.
“This is extremely upsetting. The NAR has no business whatsoever trying to place members’ private right to free speech,” wrote Austin Dixon. “The NAR does not have the perfect ability to define ‘hate speech’ in such a way that this policy will not be abused.”
Several of those who commented welcomed the opportunity to be scrutinized if their speech violated the policy unbeknownst to them.
“Thank you NAR for your dedication to combating [sic] prejudice and discrimination!” wrote Laurel Arenivar. “I’m ready to be held accountable to ensure that I treat all clients with dignity and equality.”
Prior to the changes, the Code of Ethics applied only to real estate-related activities. Now, the policy extends into a member’s private life and judges all types of communication and conduct.
“A REALTOR® shall be subject to disciplinary action under the Code of Ethics with respect to all of their activities,” reads the policy. REALTOR® is the trademarked term for NAR members.
In response to concerns that the policy might limit a member’s right to free speech, the NAR defended that it had the legal right to do so. It explains that members should abide by the “spirit of the Golden Rule” and that the “highest principles and ethics of REALTORS® must [be] followed in all their activities.”
“With some exceptions, the First Amendment does not prohibit a private organization from restricting the speech of its members, employers, or users,” wrote the association. “NAR is a private association that is supported by dues from members, is not exercising any governmental function, and has no subpoena power or other powers generally available to state agencies. As such, the First Amendment does not preclude NAR from imposing this ethical duty as a condition of membership.”
The Atlanta REALTORS® Association, a local branch of the NAR, initially proposed the changes in a letter to NAR President Vince Malta, citing their necessity following the death of George Floyd.
“The hate[ful] rhetoric, discriminatory language, practices, and actions by members on social media and other avenues, while at the same time promoting the REALTOR brand should not be allowed to continue,” wrote Atlanta REALTORS® Association President Jennifer Pino.
The rationale provided on the NAR publication stated that denial of services based on discrimination already violates their standards, and that any public speech considered “hate speech” could result in loss of clientele or direct violations of the Fair Housing Act.
It added that its policy wasn’t directed at speech that could be considered “subjectively deemed ‘offensive’ or ‘discriminatory,'” and that the terms addressed could be “commonly understood” with a dictionary or “other easily available references.”
Under the policy, an internal panel would review allegations raised against a member’s speech. If found to have violated the speech policy repeatedly, a member may face up to a $15,000 fine, mandatory “implicit bias training” or other forms of relevant education, six months’ suspension, and even membership revocation for up to three years.
In a statement issued to The Virginia Star, Virginia REALTORS® Senior Vice President of Community and Industry Relations Leslie J. Frazier stated that the scope of the policy is necessary.
“One of the key components of holding the REALTOR® designation is the pledge to follow the strict Code of Ethics,” stated Frazier. “It is imperative to adhere to guidelines that were created to ensure equity and fairness stay at the center of our industry and to uphold oneself to a higher standard, in general, in order to be called a REALTOR®. This profession and designation require dedicating oneself to protecting the best interests of consumers, and within that, there is no tolerance for discriminatory speech or conduct.”
Virginia REALTORS® spokespersons shared that they hadn’t received any complaints since the implementation of the new policy.
If Virginia REALTORS® were to receive a complaint related to the policy, they told The Star that they would rely on “a defined process of checks and balances” to adjudicate the claims. Complaints must include an explanation of the specific part of the Code of Ethics that a member violated, which would then be reviewed by a grievance committee. If the committee substantiates the claim, then a panel would determine its decision via a quasi-judicial hearing.
A member’s alleged speech infractions may not be the only thing reviewed. The panel and the NAR’s local associations were also granted the jurisdiction to take into account all of the member’s past speech to render their judgments.
“Hearing Panels are cautioned of the due process concerns of considering a Respondent’s history of Code violations, as considering too long of a history involving the different types of violations can unreasonably affect the severity of the discipline,” read the guidelines. “Typically, Associations might look back a minimum of three years, however, if there is consistency in the types of violations or if the violations are of the public trust, considering a longer history of violations could be appropriate in crafting meaningful discipline aimed at stopping behavior.”
A University of California, Los Angeles law professor specializing in the First Amendment, Eugene Volokh, warned that the NAR was setting a dangerous precedent for other companies.
“It is taking something that’s been happening on a kind-of informal and occasional basis – indeed, people do sometimes end up losing jobs because of their political expression – and shifting it to something that’s institutionalized, that’s bureaucratized, and that’s being enforced through quasi-legal tribunals,” explained Volokh. “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.”
NAR holds a lot of power in the corporate world. The association controls the widely-used Multiple Listing Service (MLS), an online database of property listings accessible only to their members. NAR’s 1.4 million REALTORS® rely on that service to find and relay properties to their clients.
MLS was the subject of an antitrust lawsuit filed last November by the Department of Justice (DOJ), which alleged that the NAR had “established and enforced illegal restraints on the way that [its members] compete.” The DOJ recognized that a settlement would increase market competition, benefitting homeowners, homebuyers, and innovation in brokerage markets.
Users on the popular real estate social networking platform, Active Rain, expressed mixed reaction to the news. Some applauded the changes, stating that the organization was right to step in since individuals weren’t improving speech in their personal lives.
“It makes sense – think of all the nasty back-and-forth going on in comment sections of any online article (even non-political ones become political),” wrote Margaret Goss. “I think it’s rampant and everyone – not just Realtors – need to tone it down.”
Others questioned whether the policy would invite a litany of frivolous claims from those who simply disagree with certain beliefs or speech.
“I agree with everything included in the addendum except: harassing speech [and] hate speech[.] I disagree with these being included NOT because I think it is OK to use that type of speech, but because I think it opens a Pandora’s box of frivolous complaints,” wrote George Souto. “These days, especially with those who have a liberal point of view, [they’ll] accuse anyone who disagrees with them as using harassing, hateful speech. With them there is NO room for disagreement, if you disagree than [sic] you are a bigot, racist, etc.”
Due to an influx of concerns and confusion regarding the policy updates, the NAR created a series of training seminars for members. These trainings have occurred on a monthly basis since November, with the last in the series scheduled for April.
– – –