Realtors clash over NAR speech code

In a recent blog post, he reported that Texas lawmakers are weighing a state ban of the Speech Code — legislation what would also stop other trade associations from implementing similar conduct rules.

Texas S.B. 2713, introduced by Mayes Middleton (R), explicitly bans any trade association from “denying access, membership, or participation based on various factors, including race, color, religion, sex, disability, familial status, national origin, or an individual’s exercise of freedom of speech or assembly.”

If passed, the bill would take effect on Sept. 1.

“When NAR first passed the Speech Code, I wrote a long post recommending an alternative,” Hahn wrote Wednesday. “Part of it is because I am a free speech absolutist. The best way to combat ‘bad’ speech is good speech, not censorship. I believe I am providing an example of what that looks like right here, right now.

“But the other part, at least in 2020, was that I could see where things were going to go and I wanted to preserve what the industry had built over a hundred years.”

Conversely, Ryan Hainlin, founder and former CEO of the LGBTQ+ Real Estate Alliance, wrote a rebuttal to Hahn’s push against the speech code.

“The First Amendment was never meant to be a blunt weapon,” he stated. “It protects speech from government censorship — not from consequence, not from accountability, and certainly not from moral scrutiny. Like any freedom, speech ends where another’s safety begins.”

Historical context and implementation

NAR’s speech code was introduced in 2020 with provisions aiming to stop Realtors from engaging in discriminatory hate speech, even outside their professional activities.

“Ryan talks about free speech mattering, but justice matters more,” Hahn said. “Nay, on the contrary, without free speech, there is no justice. There can be no justice without freedom of speech and conscience. There is only oppression, silencing, censorship, finger wagging, and moral posturing … because the other side is prevented from talking.

“Texas is about to kill NAR’s Speech Code dead. Ryan is distressed, as he should be, since his control freak agenda can’t work anymore. On the other hand, I am ready to throw a party for the victory of freedom over control, for victory of free speech and freedom of conscience.”

Hainlin highlighted the industry’s history.

“For decades, the National Association of Realtors endorsed racially restrictive covenants,” he said. “NAR fought to preserve redlining. It wasn’t until 1972 — eight years after the Civil Rights Act — that NAR updated its own Code of Ethics to acknowledge that discrimination was wrong.

“Today, those legacies are still with us. 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.”

Legal context

Legal opinion generally asserts that professional codes of conduct, like NAR’s speech code, do not violate the First Amendment.

The First Amendment restricts government censorship, not the actions of private organizations, according to the U.S. Supreme Court.

In Brandenburg v. Ohio (1969), the Court held that speech can only be restricted if it incites imminent lawless action. However, this standard applies to government actions — not private associations enforcing ethical standards.​

Further, in Chaplinsky v. New Hampshire (1942), the Court recognized that certain categories of speech, such as “fighting words,” are not protected under the First Amendment — supporting the notion that organizations can impose restrictions on certain conduct.

Balancing individual rights and community standards

Hahn argues that NAR’s speech code crosses a line by equating controversial speech with actual harm.

“Words are not violence. Violence is violence,” he insists. “Airplanes crashing into buildings and thousands of people burning to death is violence. Turns out, reality exists.

“There is a similar reality to being human. There are absolutes. The Bill of Rights does not grant rights to us; it merely recognizes the reality of them as inherent in all people. Free speech and freedom of association, right of self-defense, the right to be free from search and seizure — these were not given to us by the government, merely recognized by the Founders.”

Hainlin said that Realtors, like members of any profession, agree to higher standards when they join.

“Codes of Ethics aren’t just a good idea — they are expected,” he said. “They are not only encouraged by federal regulators, but strongly recommended by every credible independent oversight, governance, and compliance institution in the nonprofit world. For 501(c)(3), 501(c)(4), and 501(c)(6) organizations — like NAR and thousands of others — a written Code of Ethics isn’t an exception. It’s the standard.”