California real estate broker seeks full-panel review of Nebraska free speech ruling

By Carrie Salls | Jun 24, 2016

OMAHA, Neb. – The attorney for a California real estate broker said a full U.S. Court of Appeals for the Eighth Circuit panel will be asked to reconsider a Nebraska court’s ruling that the broker’s free speech rights were not violated when she was barred from posting properties located in Nebraska on real estate websites.

Leslie Rae Young is a licensed real estate broker in California, but not in Nebraska. As a result, Nebraska law allows officials in that state to order her to stop posting Nebraska properties on online listing sites.

However, Young’s attorney, Anastasia P. Boden of Pacific Legal Foundation, says Young advertises homes that are for sale by owner, but that she does not show the homes, handle client funds, complete closing paperwork “or do anything else that can reasonably be considered the ‘conduct’ of real estate brokerage.”

“This case has implications for all people who are engaged in advertising or other kinds of speech as a business,” Boden told the Northern California Record. “States can’t evade the constitution’s limitations on government regulation of speech by simply labeling that speech ‘conduct.’”

Boden said the court found that Young’s advertising constituted conduct, not speech, but it failed to address the fact that even if Young were licensed in Nebraska, she would be prohibited by law from advertising homes that are being sold by the owner.

“That’s irrational,” Boden said. “The state can’t say Leslie is prohibited from advertising without a license, but then also say she’s forbidden from advertising even if she gets a license.”

Boden said the statute is interpreted “very broadly,” by the Nebraska Real Estate Commission, and a wide array of speech is considered to be real estate brokerage.

“For example, calling up your friend and telling her that your neighbor’s house is for sale is considered ‘real estate brokerage’ if your neighbor pays you for that,” Boden said. “So the definition of ‘real estate brokerage’ is very broad – we argue it’s unconstitutionally overbroad – and the court’s opinion doesn’t address that argument.”

No matter where the advertisements are placed, Boden said Young is “still simply engaged in advertising, and therefore entitled to full First Amendment protection.” 

According to the circuit court’s June 9 ruling, Young created in 2008 for the purpose of providing property advertising services to homeowners around the country who want to sell their properties online without the assistance or cost of a real estate broker.

Also in 2008, Young entered into a contract with (FSBO) to provide advertising services to that site’s clients. Under that contract, Young agreed to post pictures and other information about FSBO’s clients’ properties into the database operated by The information would then be fed into FSBO and other websites that advertise homes and other real estate for sale by owner.

In return for these services, Young charges FSBO a flat fee of $95 per-property, not a commission, which is paid whether or not an advertised house sells and regardless of the sale price.

The court said Young’s contract with FSBO identified her company as “MLS Provider,” and “a licensed real estate brokerage firm that specializes in listing properties on the Multiple Listing Service” in its local markets.

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