Friday, January 8, 2021

Trade organization for home sellers imposes speech ban on members' private lives


[Editor's note: This story originally was published by Real Clear Investigations.]

By John Murawski
Real Clear Investigations

In what some consider one of the most far-reaching social policy moves in the corporate world, the National Association of Realtors, called the nation's largest trade organization, has revised its professional ethics code to ban “hate speech and harassing speech” by its 1.4 million members.

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.

Mary Wagner, a Buffalo real estate agent who is white and lesbian, says the move, announced in November, fits her vision for creating a fairer society. She predicts thousands of complaints this year, given the realtor association's enormous size and the overheated climate of social media.

“I was thrilled to hear it,” Wagner said in a phone interview. “I think it’s long overdue.”

NAR’s decision, allowing any member of the public to file a complaint, has alarmed other real estate agents, and also some legal and ethics experts, who say the hate speech ban’s vagueness is an invitation to censor controversial political opinions, especially on race and gender. While that’s not the association’s stated intention, the skeptics say their fears are justified by the hyperactive “cancel culture” online that has jettisoned hapless workers for posting “all lives matter” and objecting to gay marriage.

“The dam has broken and other organizations will look at this,” predicted Robert Föehl, a professor of business ethics and business law at Ohio University.

“If this is good for real estate agents, why not attorneys, why not doctors?” Föehl said. “They’re going to be pressured to do what NAR has done. And that pressure is going to be very real, because what organization wants to argue they should allow hate speech by their members?”

A week after the association approved the ban, its president, Charlie Oppler, profusely apologized for NAR’s historic role in housing discrimination and redlining, the former practice of denying loans to buyers in certain neighborhoods based on their race, during an online fair-housing summit. NAR is still a predominantly white organization, where African Americans account for just 6% of members.

NAR’s hate speech policy is noteworthy because it sweeps up 1.4 million people under an ethics standard that explicitly places limits on private speech, to be adjudicated through formal procedures. The organization’s new policy provides an avenue for the NAR to investigate, fine – and potentially expel – real estate agents who insult, threaten or harass people or social groups based on race, sex, gender or other legally protected characteristics.

“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,” said Eugene Volokh, a UCLA law professor who specializes in the First Amendment.

Volokh said such policies pose significant risks for abuse, and should be assessed not for their good intentions but for their potential to misfire.

“What we’re talking about is a new blacklist,” Volokh said. “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.”

In the current climate of cancel culture and vigilante justice on Twitter, where a single misdeed can become amplified into the defining act of one’s life, some real estate agents fear the new speech code will be used to censor agents who express disapproval of affirmative action, gay marriage, transgender pronouns, Black Lives Matter, undocumented immigrants or other politicized issues. Such concerns were validated last month by a federal judge who struck down an anti-discrimination speech code imposed on Pennsylvania lawyers, saying that the ban’s vagueness amounted to open season on politically unpopular opinions.

NAR’s speech code has sowed such confusion and anxiety among the rank-and-file that NAR plans to issue “case interpretations” this year to reassure its members and offer guidance on what is and isn’t allowed.

Among those caught up in the uncertainty are real estate agents who are Christian preachers or Sunday school teachers, or anyone who expresses traditional religious views on gender and sexuality that are out of vogue in some circles today.

“We're getting a lot of people asking about whether or not they can say that they are against gay marriage,” NAR staffer Diane Mosley said during an online training session on Nov. 30. “Specifically, if they can back it up with Scriptures, or say it in a sermon.”

The association’s speech code is still being hashed out, and in a very public way, thanks to Zoom. While the initial debate and votes by its Professional Standards Committee and board of directors were conducted in secret, NAR’s subsequent monthly online training sessions offer a glimpse at how such rules come into being, how difficult they can be to interpret and to enforce – and what other corporations and organizations can expect if they follow NAR’s example.

“Are we worried about losing members? We may, but I’m certainly not losing sleep over that,” said Matt Difanis, the Champaign, Ill., broker who chairs NAR’s Professional Standards Committee, in a Dec. 16 training session.

“We want being a Realtor to mean something,” Difanis stated, “and if somebody says, ‘I feel so strongly about continuing to have access to hate speech on demand that I don’t want to be a Realtor anymore’ – okay.”

NAR did not make Difanis, who is white and serves as its point man on the new speech code, available for an interview; all his comments in this article were taken from two hour-long training sessions and one eight-minute explanatory video available online.

In these recordings, Difanis makes an impassioned plea to the nation’s Realtors, citing the moral debt he says the real estate industry has incurred as a leading participant in the perpetuation of racism in the 20th century.

“Colleagues, remember: We quite literally drew the color lines. Our fingerprints as Realtors are all over the redlining maps, which decades – 52 years – after Fair Housing became the law of the land, those Fair Housing maps still scar our landscape by continuing to define color lines in our residential housing patterns,” Difanis said.

A Wider National Remorse on Race

His collective mea culpa echoes the remorse and anguish other organizations, most notably universities, have expressed for their historical role in profiting from slavery and segregation. It also evokes the personal penitence expressed in recent months by corporate chief executives for their own white privilege and cluelessness about how systemic racism has benefited them personally.

“I view it as a moral imperative,” Difanis said. “I won’t live long enough to see us undo the economic in the years that predate Fair Housing.”

NAR membership offers access to training, education and networking, as well as the privilege of referring to oneself as a “Realtor,” NAR’s pedigreed title for its members that the organization has trademarked.

NAR does not issue real estate licenses – that function is the domain of state licensing boards – so expulsion is not an automatic banishment from the profession. But 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.

The complaints and cases, which are to be adjudicated like mini-trials with evidence and lawyers, will be assigned to some 1,100 local NAR associations across the country, but many of the locals delegate the ethics reviews to state associations. The legalistic procedures set NAR’s internal process apart from employers who impulsively jettison employees as liabilities to appease the Twitter mob.

However, the local and state chapters don’t have to report total complaints, dismissals and resolutions to the national office, so it won’t be known how the new policy is playing out and if local chapters are issuing wildly inconsistent decisions or dismissing legitimate complaints. NAR can’t say how many complaints have been filed since the hate speech ban was adopted Nov. 13.

All hate speech complaints and decisions against Realtors would be confidential so there would be no public knowledge of a case against someone, unless the Realtor or another person disclosed it. But as part of the new speech code, NAR now requires its local and state associations to notify the state licensing authority that a Realtor violated the “public trust” if an ethics complaint led to a finding that the Realtor was guilty of hate speech in the course of a real estate transaction. Additionally, it is possible that state laws and brokerage policies in some parts of the country may also require a Realtor to disclose the accusation or the adjudication to the brokerage for whom they work.

Föehl noted that private employers have a legal incentive to make sure employees’ social media activity isn’t contributing to a discriminatory or hostile work environment, but it’s virtually unheard of for a membership organization to adopt such a restrictive policy with respect to its members.

“It feels unprecedented,” Föehl said. “The stretch and reach into the personal lives of the association members is a very intrusive move.”

Private employers and membership organizations are not bound by the First Amendment. And private employers are protected by the “at will” employment doctrine that allows them to fire workers for arbitrary reasons (as long as they are not discriminating based on race, sex, religion or other protected classes). About two dozen states have laws limiting the ability of a private employer from firing a worker for political speech or other personal conduct the boss might not personally like.

'Sword of Damocles' Over Pennsylvania Lawyers

Nevertheless, there are signs that the expansion of such policies may be bumping up against other rights. Last month, a federal court struck down a professional conduct rule for Pennsylvania lawyers; the rule stated that it is professional misconduct for a lawyer to express or engage in bias, prejudice, harassment or discrimination. The rule was limited to “the practice of law” but it expanded that concept, adding continuing education, seminars, conferences and bar association activities where education credits are offered.

The rule was challenged by Zach Greenberg, a staff attorney for the conservative Foundation for Individual Rights in Education (FIRE), who said it would expose him to endless ethics complaints because his work often involves describing and citing examples of speech many people find hateful and offensive, including the N-word or expressions such as “God hates fags.”

The judge agreed, saying the Pennsylvania ban was too vague and would “hang over Pennsylvania attorneys like the sword of Damocles.”

“The big issue with these rules is that they create unbridled discretion for organizations to enforce the rules however they like,” Greenberg said by phone. “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 prohibition states: “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.” NAR plans to assess context as much as content when evaluating speech that is subject of a complaint. NAR’s intention is to target what Difanis calls “weaponized hate speech, the sort of stuff that gets turned on like a blowtorch and aimed against other people.”

Difanis said the speech code is not intended to penalize expressions of religious belief or public policy, or comments that someone happens to find politically disagreeable, personally upsetting or generically offensive – for example: inadvertently misgendering someone.

While the ban applies to all hate speech – written and spoken – it will require “clear and convincing” evidence to prove in a hearing, he said. And it equally protects people who are white, male and Christian from a Realtor’s hate speech, he noted.

Those protections give peace of mind to Cory Kammerdiener, a nondenominational Christian minister in Spring, Tex., who owns and employs about a dozen Realtors and contractors.

Kammerdiener, who is biracial, believes that the Scriptures teach that homosexuality is an unnatural sexual act, similar to premarital sex, adultery and pornography. But he says that a real estate license obligates agents to treat all people equally regardless of sexual preference or gender identity.

“There’s people that are believers that may say, ‘Hey, I can’t talk about these things?’” Kammerdiener said. “No, that’s not what it’s saying.”

His understanding is that an opinion becomes hate speech only “if you’re weaponizing it – which is a term you’re going to see they use over and over – which results in hurting or alienating another person, like, ‘Hey, you’re going go to hell.’”

A white Realtor, Tracy Watson of Fuquay-Varina, N.C., suggested that the new speech code should trouble no one except those who are prone to get in trouble.

“Before I got into real estate I worked in the corporate field and I was held to the same standards,” Watson said by email. “I think those that need to worry about the change may need to take a look as to why.”

NAR’s speech code was prompted by a spike in reports this year of Realtors posting racist and homophobic comments on social media, causing a huge embarrassment to the organization and frustration that the group was powerless to discipline its members.

The examples Difanis cited offer some clues as to what could be considered hate speech. That includes one Realtor’s post: “I think black people bring out the worst in us.” And another post: “We always knew black people were violent – they are not Christian.”

Realtors also used the N-word and other epithets, which Difanis repeated in the video. In one case, a Realtor waved an assault rifle on camera saying he was eager to shoot looters and protesters.

Difanis, whose Illinois brokerage firm employs about 60 Realtors, said he has fired two agents this year, one for making “racially insensitive comments on social media” and the other for making “an outright racist slur in a comment thread on a public figure page.” Both agents had no trouble finding work with other brokers.

“There's nothing that prevents them from being picked right back up, reaffiliating and staying in the marketplace with no actual sanctions,” Difanis said.

Difanis described the process of evaluating ethics complaints as “making judgment calls within procedural guardrails,” to be undertaken by hundreds of local panels, usually comprising three or five Realtors.

“We can’t give you the ‘Here’s the words you can’t say or use, and if it’s one of these words they’re in violation, and if it’s not it’s not,’” Difanis said. “It doesn’t work that way.”

And this uncertainty is that causes angst in the profession and beyond.

"We live in an era where there's a lot of witch hunts going on," said Rebecca D'Angelo, a white Realtor in Richmond who doesn't oppose NAR's new policy. "There's a lot to keep up with these days on who you're offending."


Twitter: @johnmurawski

[Editor's note: This story originally was published by Real Clear Investigations.]


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