EDITORIAL: Judge right to block real estate ‘love letter’ law

Published 2:00 pm Wednesday, March 9, 2022

So-called real estate “love letters” aren’t exactly a major free speech issue.

But it’s not surprising that Oregon’s unique new law partially banning these messages quickly ran into trouble on First Amendment grounds.

U.S. District Judge Marco A. Hernández last week issued a preliminary injunction blocking the law, which the Oregon Legislature passed in 2021 and Gov. Kate Brown signed. It took effect Jan. 1, 2022.

Hernández made his ruling in a lawsuit filed in November 2021 by the Pacific Legal Foundation on behalf of the Total Real Estate Group of Bend.

Oregon State Rep. Mark Meek, a Democrat from Clackamas County and a real estate agent, promoted the law. It deals with letters that hopeful buyers sometimes send to a seller, using real estate agents as intermediaries, as a way to try to entice the seller to choose the letter writer’s offer.

The law doesn’t prohibit prospective buyers from writing such letters, or from sending them directly to a homeowner. The law prohibits real estate agents who represent a seller from passing on such letters to the seller.

Meek and other supporters said they were concerned that such letters could include personal details about the prospective buyer, such as race, gender or sexual orientation, that might influence the seller’s decision about which offer to accept.

Proponents of the law contend this situation would violate the federal Fair Housing Act, which prohibits discrimination in housing based on factors such as race and sexual orientation.

This is a legitimate concern, to be sure.

But the notion that such letters would truly lead to discrimination is difficult, if not impossible, to prove. In any case, the mere potential for a letter to contribute to discrimination is not sufficient to meet the appropriately high threshold that the First Amendment sets to ensure Americans have the right to freely express themselves, regardless of the topic or the forum.

Daniel Ortner, an attorney for the Pacific Legal Foundation, made that point in a statement about the preliminary injunction.

“Love letters communicate information that helps sellers select the best offer,” Ortner said. “The state cannot ban important speech because someone might misuse it.”

Hernández acknowledged in his decision that the purpose of the new law is worthwhile. The judge cited Oregon’s “long and abhorrent history of racial discrimination in property ownership and housing” that in the past explicitly blocked people of color from owning property.

But the judge also rightly concluded that the law is too broad, prohibiting this type of letter in general rather than outlawing specific subjects. Oregon lawmakers, Hernández wrote, “could have addressed the problem of housing discrimination without infringing on protected speech to such a degree.”

That’s an interesting point. However, it’s hard to imagine that any such restriction on this type of letter, even one with a narrower focus than the current law, would pass constitutional muster.

The preliminary injunction will remain in effect until Hernández makes a final decision on the lawsuit.

Oregon officials, including Attorney General Ellen Rosenblum and Real Estate Commissioner Steve Strode, both named as defendants in the lawsuit, should concede that the new law, however well-intentioned, is too general in its restrictions on free speech to stand.

There’s no reason to spend public money defending against a lawsuit that stands on a legal foundation as formidable as the First Amendment.

— Jayson Jacoby, Baker City Herald editor