What are the rights of a member of a private organization like the National Association of Realtors (NAR) to speak candidly and publicly on the merits of a specific property? Depending on the outcome of today’s super-secret double-probation grievance hearing I endured today, I may have occasion to find out. Until now, the First Amendment was of academic interest to me but that may change.
On the one hand, a private organization can probably limit the free speech of its members to some extent – can you denounce the President of your country club without penalty, for instance? I think not. And, as a member of the NAR, I am bound to follow their ethical rules if I want to remain a member.
But membership in the NAR is not voluntary – I must belong if I want to sell real estate in Greenwich and I suspect that places membership, and the rights I give up, in a less powerful position vis a vis limiting my speech.
And then there are anti-trust considerations. Can the NAR, under the guise of enforcing an ethics rule, prevent a member from publicly opining on the relative values of specific properties? That may protect one group: sellers, but disadvantages the other half of the equation, buyers. I would think that shutting off that speech would constitute a restraint of trade, cutting buyers off from an objective (even, for the sake of argument, subjective) source of information on which to base, even partly, their decision to buy.
As noted, I am not a first Amendment scholar, and, pending a decision on sanctions that may or may or may not be levied against me, I don’t want to become one. But I certainly don’t intend to stop blogging or selling real estate, so if worse comes to worse, my legal education may continue.
This could be of interest to other people, because I am not the only real estate agent blogging out there nor am I the only member of a non-voluntary organization who blogs on matters that may be proscribed by an organization’s rules. I am headed to Europe tomorrow and blogging will be light or non-existent, depending on Internet access but I’ll be back, and we can resume the discussion then. In my absence, any First Amendment lawyers out there or you, Walter, over there at Overlawyered.com, who wish to chime in, please fire away.