Repeal the Speech Code, NAR

When the right thing to do is the smart thing to do

Tuesday night, completing the biggest political comeback in American history, Donald Trump won election as the 47th President of the United States. He won so decisively that it is difficult to deny that he has received the mandate of the American people. Over 300 electoral college votes, winning the popular vote, and control of both the House and the Senate. A race that many thought would not be decided for days if not weeks was called by midnight.

Whether you voted for or against him, by the light of day, it is clear that the world has changed. The world we woke up to on November 6th is not the world we lived in at bedtime on November 4th.

As a result of this massive political realignment, there is something that NAR and the industry must do immediately. I write this because NAR’s annual convention is happening in Boston right now. I know NAR does not usually move quickly, but this is something the Leadership Team should consider doing before the end of the convention.

NAR must immediately repeal its utterly insane speech code, sometimes referred to as 10-5 for Standard of Practice 10-5. NAR should never have promulgated a speech code, and should have repealed it voluntarily years ago as a terribly misguided policy. But better late than never in light of the new reality.

Let me explain.

The NAR Speech Code and Brandon Huber

Back in 2020, when the NAR Professional Standards Committee announced its recommendations (ultimately adopted by the Board), I wrote a fairly lengthy critique of Standards of Practice 10-5. I thought it was a terrible idea then and I haven’t changed my mind in the four years since.

I don’t want to rehash all of my criticism there, but let me give you the bullet points:

• SoP 10-5 applied to a REALTOR’s activities that had nothing to do with the real estate transaction or real estate activities, including personal activities.

• The Speech Code changed the definition of “Public Trust” so it would go far beyond what it used to mean.

• A violation of “Public Trust” requires the local Association to report the REALTOR to the licensing authorities.

And in one of the most shocking and unjust episodes in the long and spotted history of NAR, they used the Speech Code to go after a Christian pastor whose church chose to stop participating in a local food bank after finding an LGBTQ “Pride” insert in one of the free lunches distributed to children.

I wrote about Brandon Huber in my 2021 Seven Most Interesting People. I then recorded a podcast with him and his attorney:

Someone (we still don’t know who) filed a grievance complaint against Huber with the Missoula Organization of REALTORS because he was a REALTOR.

The Missoula Organization of REALTORS subsequently ruled that Huber violated the Code of Ethics, and stated “Although this is the respondent’s first violation of the Code, these violations are considered very serious and based upon a disregard for the Code of Ethics.” They fined him $5,000 and ordered completing a diversity training program. But they didn’t think his decision to withdraw from the lunch program, nor his letter explaining the church’s decision was a violation. So what was?

From the Daily Montanan:

The panel said Brandon Huber’s social media post noting an event at his church would “expose the LGBTQ Agenda that Controls our Lives and Kills our Liberty” violated a provision against discrimination in the realtors’ Code of Ethics.

That was considered to be “harassing speech, hate speech, epithets or slurs” by MOR: a single social media post promoting an event that features not a single slur, not anything approaching “harassment” and that had nothing to do with real estate. It was a church event on Huber’s private time which was not promoted as a real estate event, or using his status as a REALTOR in any way.

But that was enough to punish him under SoP 10-5.

Huber refused to pay or attend diversity training, sued (which was dismissed), and last I heard had withdrawn from the REALTOR Association.

NAR Alienated Its Own Members, Created Division

Back when that crisis was going on, I interviewed Phillip Cantrell, the CEO and Founder of Benchmark Realty in Nashville, and a true leader of the industry.

I’ve known Phillip for a long time, and respect the hell out of him. I know for a fact that he personally went from grumbling about NAR, like just about every broker does, to outright advocating for its destruction because of the Speech Code.

Since the Speech Code was implemented I have been to strategic planning sessions with MLSs and Associations that became acrimonious, depressing, and filled with anger because of it. Members and leaders who devoted countless hours of their own time in service to the Association and to the community went at each other’s throats because of divisive issues of race, gender, and sexuality.

Just like all other speech codes implemented across college campuses, NAR’s Speech Code only cuts in one direction. That sent a clear message to conservative REALTORS: we don’t like you and we don’t want you.

At the precise time when the industry needed to be more united than ever, to deal with the numerous challenges from antitrust to technology to the economy, NAR chose to divide its own membership over political ideology.

For four years, NAR has not had to pay a price for the ill-conceived virtue signaling that was the Speech Code. If anything, NAR used the Speech Code to preen about its moral superiority, even as its President was booted for sexual harassment, even as its leadership covered up the harassment and toxic work environment at NAR, and as a Missouri jury agreed that NAR was an illegal cartel.

I have not written about the Speech Code and have not addressed it really since 2021 because… there was no point. We were living in a world where the federal government was invested in industrial-scale censorship through both legacy corporate media and through social media. The Twitter Files proved that, and the recent revelations by Mark Zuckerberg of Facebook confirmed that the Powers That Be were not only fine with censorship, but pressured companies into silencing, banning, or otherwise punishing people for their opinions.

That has all changed.

The World Changed Overnight

“The past is a foreign country; they do things differently there” is a famous line from L.P. Hartley's 1953 novel The Go-Between. That statement has never been more true than today, which is a different country from the world of November 4th.

Trump has been swept into office with a clear mandate. But Trump 2.0 is very different from Trump 1.0. For one thing, the new team around Trump is nothing like the team around Trump 1.0. JD Vance, Elon Musk, RFK Jr., Tulsi Gabbard, and Vivek Ramaswamy are not Mike Pence, Rudy Giuliani, Chris Christie, Jeff Sessions and other Old Republicans.

Team Trump 2.0 agree on some things, and disagree on some things — they have said so themselves, with Trump telling RFK Jr., a longtime environmental lawyer, to “Stay away from the black gold” during his victory speech Tuesday night. With such strong personalities, I am certain they don’t agree on everything.

But there is one thing that they all agree on: freedom of speech.

Censorship, cancel culture, and suppression of viewpoints are what ultimately brought people like Elon Musk and Tulsi Gabbard over to Team Trump. Censorship was the issue that brought Joe Rogan around. Censorship is the thing that motivated millions of on-the-fence Trump voters — not the die-hards wearing MAGA hats, but the disaffected centrists and independents who had lived through censorship and gaslighting of the past few years.

Add to that the utter disdain that Team Trump has for wokeness in general, and corporate wokeness in particular, and you have a new reality for NAR to face.

Team Trump will go into Washington DC with a real mandate, and real power to accomplish what they want.

NAR Does Not Want This Smoke

As I wrote in a previous post, Trump might eviscerate the current Department of Justice and the leadership of the FBI. He has some personal scores to settle with them. But his personal scores are with the criminal side of that department, not with the antitrust division. Plus, as I noted in that previous post, JD Vance appears to be supportive of the approach that Lina Khan (FTC) and Jonathan Kanter (DOJ) have been taking under the Biden administration.

Antitrust enforcement is likely to remain a priority for the new post-evisceration Trump DOJ, because populists are no fans of Big Tech, Big Pharma, Big Anything. And given how Trump ran on a platform of making housing affordable again for the average American, anything to do with housing will remain a high priority.

As the new Trump DOJ and the Trump FTC consider NAR and the real estate industry, it will start with three facts: (1) institutional enmity between the FTC/DOJ and NAR which goes back a hundred years, (2) real desire by policymakers to lower transaction costs, aka, commissions, and (3) that a federal jury declared NAR to be an illegal cartel. But it is a new day. NAR had no friends in the Biden DOJ; could it have some in the Trump DOJ?

The one thing that helps NAR is the fact that real estate is comprised of millions of independent entrepreneurs and small businesses, many of whom are pillars in their local communities. People like Leigh Brown, who threw herself into relief efforts in North Carolina after Hurricane Helene, are the kinds of small business owners that populists like Trump and Vance want to protect.

There are thousands, maybe tens of thousands, of REALTORS like Leigh Brown out there. They work hard, they volunteer, they take care of their clients, and they care about their towns and neighbors. They are good people doing good in their communities. And it doesn’t hurt that many of them are conservative Christians, like Leigh Brown is.

If NAR is seen as an organization of Leigh Browns, there is a good chance that the Trump administration will not seek to destroy NAR and salt the earth afterwards. There is a chance that a DOJ in a populist administration might even be friendly to a national trade organization of small independent entrepreneurs.

Unless… of course… NAR does things like declare Leigh Brown ineligible to even run for a position at NAR because of five old social media posts and Likes. Censorship, cancel culture, and wokism all rolled into one episode, going after one of the most popular and most respected REALTOR members in the country.

In that case, expect no mercy, no quarter, no flexibility from the new sheriffs in town.

When the Right Thing to Do is the Smart Thing to Do

Which is why the first action that NAR should be taking is to repeal the Speech Code. This is an administration of free speech absolutists; do not start off on the wrong foot.

Repealing the Speech Code is also the right thing to do for all of the reasons listed above. It happens to be the smart thing to do as well in the new reality.

It would be better, of course, if NAR’s leadership were to come to their senses and realize just how stupid and unjust a speech code is for a trade organization. It’s one thing to govern the conduct of its members in a transaction; it is something else entirely to tell its members what they can and cannot say in their private lives, private conversations, private social media activities. In fact, it is un-American for a trade organization, that holds its “members” hostage by limiting access to a necessary utility (the MLS) to interfere in their private speech that has nothing whatsoever to do with real estate.

It would be better if NAR leadership were to realize how they have alienated half (or more) of their own REALTOR membership in order to virtue signal, and admitted to having made a mistake.

It would be better if Kevin Sears or Nykia Wright were to apologize to Leigh Brown, to Brandon Huber, and to all of the conservative and Christian members that NAR has alienated and pissed off for the past four years — like Phillip Cantrell — and announced the repeal of the Speech Code. That would be better for the organization and for the industry.

But I would settle for a quiet repeal for the sake of self-preservation. The last thing that NAR needs in 2025 is a lawsuit by the Trump DOJ for antitrust violations and I am convinced that an organization with a goddamn Speech Code is going to draw the wrong kind of attention from the new Trump administration.

People can react quickly to changed circumstances. In the 36ish hours since the election results were announced, we have heard that Jack Smith at the DOJ will drop all charges against Trump. Hamas has called for an immediate end to the war in Gaza. It doesn’t take a genius to feel what’s coming in the air tonight and every night thereafter for years to come.

NAR should react quickly as well. Before the end of NAR NXT on November 10th, leaders should hold whatever emergency meetings they need to, and twist whatever arms they need to, in order to repeal SoP 10-5 and get rid of the Speech Code.

The right thing to do is sometimes the smart thing to do. When that happens, the only thing to do… is to do it.

-rsh