NAR Might Revise Its Hate Speech Rules This Week
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A bill that would have banned the National Association of Realtors (NAR) speech code in Texas has died in committee after state lawmakers failed to advance it before a key deadline this past Wednesday. Even still, the association is reportedly considering amending its code of ethics following accusations by some conservatives and Christians that NAR has infringed on their First Amendment rights.
Senate Bill 2713, which was sponsored by Sen. Mayes Middleton (R-Galveston), sought to prohibit professional groups or trade associations from denying membership on the basis of an individual’s protected characteristics or lawful speech. The bill was passed by the Senate and received a hearing by the House Trade, Workforce & Economic Development Committee, but it was ultimately left pending by committee members.
While the legislation would have applied to any and all trade groups with a presence in the Lone Star State, realtors were paying close attention following a number of instances in which NAR members have purportedly faced disciplinary action or harm to their careers over their political or religious speech. Some of the testimony heard during a Senate committee hearing on SB 2713 back in April actually came out of the real estate industry, as did House committee testimony a couple weeks ago.
Under a section titled “Duties to the Public,” NAR’s code of ethics reads, “REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity.”
Central to the controversy over this speech code has been the question of whether expressing disapproval of or hostility towards homosexuality and/or the LGBTQ+ community in a non-professional setting (think personal social media posts) constitutes harassment or hate speech.
SB 2713, however, would more broadly prohibit trade groups from disciplining or denying membership over any speech unless that speech directly incited criminal activity, constituted a specific threat of violence against someone because of their protected characteristics, or otherwise constituted some kind of unlawful speech. It would also allow individuals to sue trade groups for damages.
NAR adopted its speech code in 2020. The group said it did so following an “unprecedented number of complaints about REALTORS® posting discriminatory speech and conduct online, especially on social media.”
“This proposed Standard of Practice directly flows from the requirement to not deny equal professional services or be parties to a plan to discriminate. Specifically, bias against protected classes revealed through the public posting of hate speech could result in REALTORS® not taking clients from certain protected classes or not treating them equally, which would lead to violations of the Fair Housing Act due to overt discrimination or disparate impact,” NAR said in an FAQ.
While NAR is ultimately a private association, proponents of SB 2713 argue it and other trade groups hold a tremendous amount of power and clout within their respective industries, so much so that membership can be a critical part of being successful in a given occupation.
“Free speech is the bedrock of liberty! Private, nonprofit orgs can set rules, but when they’re an economic necessity to compete, free speech must be protected,” tweeted Austin-based realtor Brian Talley, who testified before the Senate Committee on State Affairs last month.
Sen. Middleton said much of the same in a previous statement to Inman:
“The First Amendment doesn’t end when you clock in. And yet, too many Texans today find themselves forced to choose between staying silent or risking expulsion from their industry and even losing their ability to make a living … professional associations cannot blacklist, or gatekeep the tools of a profession based on race, religion, sex, disability, freedom of speech or freedom of assembly.”
Despite SB 2713’s failure to become law, NAR is reportedly considering a significant revamping of its speech code during its national policy discussions in Washington, D.C. this week (May 31 – June 5). According to HousingWire, the trade group may provide more clarity around the definition of “harassment” and limit disciplinary action to instances within a professional or business setting. NAR reportedly cited potential legal liability as the impetus for its possible revisions.
Writing in defense of NAR’s speech code, Ryan Hainlin, founder and former CEO of the LGBTQ+ Real Estate Alliance, argued the organization should maintain high standards in professional conduct given the real estate industry’s historic role in upholding the discriminatory practice of redlining and currently existing inequalities.
“Today, those legacies are still with us,” Hainlin wrote. “Black Americans continue to lag nearly 30 points behind white Americans in homeownership. LGBTQ+ people face a 16-point gap compared to the general population. And nearly one-third of queer Americans report direct housing discrimination or bias.”
