The National Association of Realtors, the largest trade organization in the United States, has revised its policies to ban “hate speech and harassing speech” 24/7. The move is being considered by far the strictest social policy in the corporate world.
The updated policy prohibits the 1.4 million NAR members from using poorly-defined “hate speech” in private and public communication, be it offline or online.
Violating the policy carries a maximum fine of $15,000 and removal from the association. Any member of the public can file a complaint, after which the NAR will launch an investigation.
According to legal experts and real estate agents, the policy will restrict members from discussing political issues, especially those revolving around gender/sexuality and race. UCLA law professor Eugene Volokh said that, while it was created with good intentions, the policy is troubling.
“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,” Volokh said in an interview.
Others pointed out that other organizations could adopt the policy.
“If this is good for real estate agents, why not attorneys, why not doctors?” said Ohio University business law professor Robert Föehl. “They're going to be pressured to do what the NAR has done. And that pressure is going to be very real.”
Membership organizations such as the NAR are not bound by the First Amendment; they do not have to respect the freedom of speech. However, that does not mean the policy cannot be challenged.
A few weeks ago, Zach Greenberg, an attorney at the Foundation for Individual Rights in Education (FIRE), challenged a similar policy change for lawyers in Pennsylvania. It is professional misconduct for lawyers to engage in or express prejudice, bias, discrimination, or harassment. The policy is limited to “the practice of law.” However, a policy change extended the rule to seminars, conferences, and bar association activities.
Greenberg argued that the policy change would result in endless ethics complaints since the nature of his work requires him to use examples of speech where other people have used language that some protected groups might find offensive. The court ruled in his favor and struck down the policy change.
The same argument could be used to challenge the NAR's new policy. Say a realtor is also a preacher or even a Sunday school teacher. They will have to teach traditional religious views on sexuality and gender that are not politically correct in the modern world. Should such a realtor be punished for teaching their Christian believes?
“The big issue with these rules is that they create unbridled discretion for organizations to enforce the rules however they like,” Greenberg said, speaking to Real Clear Investigations. “That's a really dangerous game they're playing because the question of what is offensive is really in the eye of the beholder.”
The NAR does not license real estate agents, so getting booted from the association does not mean losing a job. However, in many parts of the country, NAR membership is a requirement to access the Multiple Listing Service, an online database for real estate.