Letting brokers speak: real estate and free speech
by Jacob Sullum
from findarticles.com
USUALLY WHEN A court refuses to recognize a privilege for professional
journalists, it's seen as a defeat for the First Amendment.
In one recent case, it was an unambiguous victory. In November
a federal judge overturned a California law requiring any business
that earns money by listing homes for sale to obtain a real
estate broker's license--unless the business happens to be a
newspaper.
The distinction, presumably motivated by a desire to avoid
the appearance of infringing on freedom of the press, never
really made sense, and with the advent of the Internet its
absurdity became glaringly obvious. In response to a lawsuit
filed by the Institute for Justice on behalf of ForSaleByOwner.com,
U.S. District Judge Morrison C. England noted that "many
newspapers now maintain websites operating in much the same
manner as the site generated by FSBO"--charging property
owners for listings and offering information and advice for
buyers and sellers. Noting that "the distinction drawn
between the two publishing mediums appears wholly arbitratry,"
England concluded that "California's real estate licensing
scheme impermissibly differentiates between certain types
of publications canting the same basic content."
In finding that the content of ForSaleByOwner.com was fully
protected by the First Amendment, England cited a 1999 decision
(also the result of an Institute for Justice suit) in which
the U.S. District Court in D.C. rejected a federal licensing
requirement for people who publish advice about commodity
trading. Both cases involved the regulation of speech under
the pretext of regulating professional services.
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