A reader who asks for anonymity sent along some information on what’s going down right now in the Republic of Texas. I wasn’t aware of it because, well, I have a life outside of politics… and frankly, you can find far better places on the web if you want to get into politics.
However, this story has gone mainstream, and it represents the first major test for REALTOR Associations and the new NAR Speech Codes.
And I do think it’s worth exploring the dilemma that REALTOR Associations now face in trying to deal with this situation. This post is strictly limited to that exploration.
In a giant exception to my normal comment policy, I will police the comment section on this one and remove those that are not on topic as to what the REALTOR Association should do, should not do, challenges and difficulties. You want to go scream about Trump is evil or Communist takeover or the election fraud allegations or whatever, please find your local politics blog. This isn’t the place.
Let’s get into it.
Briefly, the Jenna Ryan Situation
I assume by now that everyone who is reading this has seen the reporting about Jenna Ryan, a broker from Frisco, TX. Just Google her name and you see CBS, Newsweek, Dallas News, Houston Chronicle, etc. etc. Let’s pick a story at random just in case you were not aware. Let’s go with Daily Mail because they don’t have a subscription firewall:
A Trump supporter who took part in the siege of the US Capitol has been identified as a Texas real estate broker who had traveled to the protest in a private jet and later posed next to smashed windows of the federal building.
Jenna Ryan, from Frisco, shared photos on social media attending the rally on Wednesday, which she claimed was attended by ‘working class people’ and described as ‘one of the best days of my life’.
She posted photos and video of herself, and did not hide at all. The papers are full of her tweets, quotes, etc. She has openly admitted to taking part in the storming of the Capitol. There is no doubt about that.
She has used inflammatory language. Again, this is not in doubt. Her video, which she shot herself and uploaded herself, shows her saying things like, “This is prelude to war.” But, important for our analysis, she has not used anything approaching hate speech or harassing speech based on a protected class.
She is guilty of something, which is not in doubt, because she proudly admitted to it. We do not know yet what she is guilty of, no matter what your personal opinion may be, since as of this writing, she has neither been charged nor tried. It might be trespassing, or it might be felony murder. None of us know. But this Reuters article lays out possible charges. Make up your own mind.
With that said, we turn to the dilemma for Associations.
Rock and a Hard Place
The most important factor to note, I think, is that the REALTOR Association — local, state and national — is now caught between a rock and a hard place. No matter what they do, roughly half of their members are going to be outraged and livid.
If they do nothing, or give her a slap on the wrist, the Left will be screaming bloody murder – silence and inaction will be seen as condoning her actions. They see her as a traitorous criminal who was involved in a conspiracy to overthrow the government, that resulted in the death of five people, including a police officer.
If they go hard against her, the Right will be screaming bloody murder. They see her as a patriot exercising her rights. The “criminal offense” is the sort of normal civil disobedience thing — trespass, breaking windows, etc. — that they think leftist activists don’t even get charged with.
If they try to do something in the middle, that will either be seen as a slap on the wrist or as political persecution, depending on what they do and which side you sit on. So one half or the other will be outraged. Chances are pretty good that both sides will be outraged if they try to split the difference somehow.
They could do what REALTOR Associations typically do in these situations, which is to wait for the licensing authorities to take action, and basically say, “This is not our lane.” Except that 10-5 has passed. I do not believe saying “This has nothing to do with real estate” is a path available to Associations any longer, since a big part of 10-5 was specifically that the Code of Ethics applies to a REALTOR’s non-real estate activities, including personal social media.
If the FBI comes and arrests here, and the U.S. Attorney charges her with serious crimes, and she is tried and convicted by a jury of her peers… then sure, the Associations can act then. But even then, they’re not out of the woods entirely. First, that whole process is going to take an awful long time, which makes it far more likely that they’ll be seen to be doing nothing. Second, if they expel her or punish her for committing whatever crime she is convicted of, they set a precedent. They have to hold to that same standard in all future cases.
Note that NAR does not prohibit becoming a REALTOR if you have a criminal history, but there are a lot of additional hoops to jump through. There is, as far as I know, no provision that allows for permanent expulsion of a REALTOR member even for criminal conviction. From what I can tell, the Association relies on the state licensing authority to revoke the license, and of course, one cannot be a REALTOR without a real estate license. But see more details here.
Long and short of it is that there is not a single good option for the REALTOR Association. If there is one, I can’t think of it. I welcome you to make any suggestions, because I really do think TAR and NAR could use your suggestion.
A Major Test of 10-5
With that tense, divided, outrage-filled environment in mind… the Jenna Ryan case is the test for the new NAR Speech Code regulations.
Unless some new information emerges, or new evidence is found, none of what Jenna Ryan said on video, in her tweets, or anywhere else constitutes “hate speech” against a protected class.
In a recent webinar on the Speech Code, NAR clarified that the new Speech Code is specifically not meant to punish a REALTOR for political, religious or policy beliefs:
Matt Difanis, chair of NAR’s Professional Standards Committee, said it’s not enough for speech to reference a protected class, such as gender identity or sexual orientation, according to Andrea V. Brambila writing in Inman News. It depends on context – though Difanis added that he can’t give specific advice in advance. “The circumstances and the context matter, but I simply want to reiterate that this solution is narrowly aimed at discriminatory hate speech, epithets and slurs and is not intended to go after anyone on the basis of political, religious or policy beliefs.”
In this article on Real Clear Investigations, which has been making the rounds, we have Cory Kammerdiener, a Christian minister from Texas, reassuring people that the Speech Code is not meant to be a tool of political persecution:
Those protections give peace of mind to Cory Kammerdiener, a nondenominational Christian minister in Spring, Tex., who owns Newhomeprogram.com and employs about a dozen Realtors and contractors.
Kammerdiener, who is biracial, believes that the Scriptures teach that homosexuality is an unnatural sexual act, similar to premarital sex, adultery and pornography. But he says that a real estate license obligates agents to treat all people equally regardless of sexual preference or gender identity.
“There’s people that are believers that may say, ‘Hey, I can’t talk about these things?’” Kammerdiener said. “No, that’s not what it’s saying.”
His understanding is that an opinion becomes hate speech only “if you’re weaponizing it – which is a term you’re going to see they use over and over – which results in hurting or alienating another person, like, ‘Hey, you’re going go to hell.’”
Based on those statements, it is difficult to see how any of the new Code of Ethics provisions apply to Jenna Ryan. She said a bunch of things that most people would agree is inflammatory and provocative, and quite possibly unwise, but she didn’t refer to a single protected class on the evidence I’ve looked at: race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. She talked about communists, but political affiliation is most definitely not protected nor actionable under the Speech Code.
This is damn near the exact scenario I warned against in my previous post about the Speech Code: a REALTOR has behaved in a way that damages the REALTOR brand in the eyes of at least half of the population. She has done so without referencing a single protected class.
Had NAR implemented a Conduct Unbecoming clause instead of what they did, NAR could have taken the position that what Jenna Ryan did was just egregious conduct unbecoming of a REALTOR. Even her supporters, who think as she does, would be able to accept that yes, perhaps putting a video on the internet talking about “prelude to a war” is egregious conduct. Breaking windows at the Capitol and trespassing are simple to classify as conduct unbecoming.
There are, after all, plenty of Republicans and conservatives who condemn the violence, who condemn the storming of the Capitol, in no uncertain terms… even as they agree with the protestors on the substance of the grievances they claim. So it seems reasonable to think that even those who really agree with Ms. Ryan would have been fine with punishment on the basis of Conduct Unbecoming.
That’s because the punishment, the penalty, would have had nothing to do with Jenna Ryan’s personal political beliefs or political affiliations. They would have been focused on her actions, her conduct.
Now… that path is not available to NAR, to TAR.
The End of the Road?
What concerns me at this point is that I’m not sure how the Jenna Ryan case is not the beginning of the end of the road for the REALTOR movement. The two sides are beyond disagreement here. There is active contempt for one another, judging by comments on social media. A lot of people think she’s a traitor and a criminal; a lot of people think she’s a hero and a patriot. There’s no middle ground of agreement there.
Imagine for a moment that NAR and TAR do decide to take action, and punish Jenna Ryan for some kind of an ethics violation. It’s not real clear what that would be, but say they do.
I know that Ms. Ryan belongs to CCAR — Collin County Association of REALTORS. I have a small bit of experience with CCAR and its members from my past work with TREPAC and NTREIS. I do not think it is an exaggeration to say that CCAR is among the most stalwart conservative local associations I have ever seen. Whatever stereotype you might have of a Texan, chances are, it’s not from Dallas or Houston or Austin. It’s probably from Collin County. They are Texan to the core.
Does CCAR take things lying down? Do they just accept whatever decision that TAR and NAR have made, kick Jenna Ryan and others like her out of their ranks, and move on?
Maybe. I don’t see it. That would be so very un-Texan of them, and CCAR is, like I said, as Texas as Texas gets. This is the state whose informal motto is “Come and Take It” and who still Remember the Alamo.
On the flip side, suppose TAR and NAR do nothing and Jenna Ryan continues as a REALTOR in good standing.
I’m not sure that I see the Austin Board of REALTORS taking that lying down. I’m not sure I see thousands of members from MetroTex Association of REALTORS (Dallas and Ft. Worth) being okay with that.
So I’m imagining what the 2021 Texas REALTORS Conference is going to be like. CCAR will be there, of course, but so will Austin, Houston, Dallas, El Paso. Half of the attendees might want to give Jenna Ryan a medal, and name her as REALTOR of the Year. The other half want to see her in jail and no longer able to practice real estate.
How are you going to discuss property taxes and MLS rules when that is on everyone’s minds? How are Texas REALTORS going to talk about moving the industry forward, or shaping Texas housing market, when half of the people want nothing whatsoever to do with the other half?
With the social and political environment we are in as a nation, there’s quite a lot of talk about civil war and secession. I hope cooler heads will prevail, but I note just how difficult it would be for any state to leave the union in 2021. That is simply not true for a voluntary trade organization like NAR, or TAR, or CCAR. It actually is not impossible, or even that difficult, for locals to disassociate from the state Association, or for a state to disassociate from NAR. It’s not difficult for individual brokers or agents to decide to part ways with a local Association.
The MLS is the key issue… but push comes to shove, there are alternatives. It is more difficult, of course, but not impossible to do business without the MLS. REX has been proving that now for a couple of years.
So in the end, division is here. The nation is divided. Society is divided. Of course REALTORS are going to be divided.
And the Association is out of any good options for bridging that divide.
I wish Charlie Oppler, President of NAR, and Marvin Jolly, Chairman of Texas REALTORS, the very best of luck as they try to navigate this thorny mess. I wouldn’t want to be in their shoes today. Maybe they can find that mysterious bridge, or build one from scratch.