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“Everything is bigger in Texas” is a folksy saying that conjures smiles when thinking about Buc-ee’s, wide-brim western hats, or ostentatious longhorn belt buckles. But what may draw a look of ire is the newly introduced state senate bill that already has a reputation of legally forcing professional or trade associations and organizations in Texas to look the other way when hate speech spews out of the mouth (or fingers) of an association member.
Specifically, S.B. No. 2713 would make speech codes like the National Association of REALTORS® (NAR) Standard of Practice 10-5 (a fairly new update approved in 2020 by a 117-year-old organization) that says “REALTORS® must not use harassing speech, hate speech, epithets, or slurs…”, defunct.
Or would it?
If this bill passes, state and local REALTOR® associations in Texas would not be able to legally deny “access, membership, or participation based on various factors, including… an individual’s exercise of freedom of speech or assembly.”
First, this bill does not preclude disciplinary actions
To go further into detail, NAR has stated:
As with any alleged Code violation, ethics complaints alleging a violation of Article 10 as interpreted by Standard of Practice 10-5 will be processed consistent with the local or state association’s professional standards enforcement process, which affords all parties a full and fair opportunity to present their case, defend themselves, provide evidence and witnesses, and be represented by counsel.
Additionally, membership in an association of REALTORS® is voluntary, and any discipline imposed does not automatically impact an individual’s ability to hold a real estate license.
In short, if S.B. No. 2713 (or similar state laws) pass, an organization may not be able to ban members, but based on the case findings, it may arguably still impose disciplinary actions (such as fines, educational requirements, or community service).
Furthermore, beyond penalties, there have been well-established exceptions to the U.S. Constitution’s First Amendment that arguably may take legal precedence over conflicting state statutes.
Second, there are possible exceptions
Does “freedom of speech” include unpopular opinions (where we can agree to disagree respectfully) and “harassing speech, hate speech, epithets, or slurs”?
Well, our First Amendment right of free speech has had several exceptions, nine of which are relevant for organizations that may have speech codes to review that conflict with state bills such as Texas’s S.B. No. 2713.
What are those exceptions?
1. Defamation, written (libel – keyboard warriors beware!) or slander (spoken), is when the statement is false and made with negligence (yes, even “oopsies”) or actual malice (particularly in the case of celebrities).
2. Incitement to imminent lawless action – the Brandenburg Test restricts speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (like provoking a riot).
3. True threats, where statements are meant to communicate a serious intent to commit unlawful violence against a person or group. Virginia v. Black (2003) specifically referenced burning a cross on someone’s lawn with the intent to intimidate.
4. Obscenity that meets the three-part Miller test:
– Appeals to prurient interests (lustful thoughts),
– Depicts sexual conduct in a patently offensive way,
– Lacks serious literary, artistic, political, or scientific value.
5. Fighting words that are likely to provoke an immediate violent reaction (such as “face-to-face personal insults,” also known on the internet as FAFO).
6. Fraud & false advertising, which is knowingly deceptive speech intended for financial gain (looking at you, TikTok and Craigslist alleged scammers).
7. Perjury, which is lying under oath in a court proceeding.
8. Blackmail & extortion, which is when someone threatens to reveal damaging information unless payment or favors are given.
9. National security restrictions/Espionage happens when classified information is leaked that harms national security, which may include doxing your political rival.
TL;DR: To summarize, the bill’s clause (“an individual’s exercise of freedom of speech or assembly”) has not legally been the same as threatening, defaming, defrauding, or other nefarious forms of speech. Most of us would more readily classify the latter as “hate speech” – very different than someone sharing an unpopular opinion. Let’s demand that the U.S. government, whether federal, state, or local, continue to uphold these legal precedents that put guardrails around free speech.
Dr. Lee Davenport is an MBA/graduate school adjunct professor, executive/real estate coach, and author.
This column does not necessarily reflect the opinion of HousingWire’s editorial department and its owners.
To contact the editor responsible for this piece: zeb@hwmedia.com.
