The Big Test for REALTOR Associations and New Speech Code: The Jenna Ryan Situation

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.

Conduct Unbecoming

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.

Now what?

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.

-rsh

 

 

 

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Rob Hahn

Rob Hahn

Managing Partner of 7DS Associates, and the grand poobah of this here blog. Once called "a revolutionary in a really nice suit", people often wonder what I do for a living because I have the temerity to not talk about my clients and my work for clients. Suffice to say that I do strategy work for some of the largest organizations and companies in real estate, as well as some of the smallest startups and agent teams, but usually only on projects that interest me with big implications for reforming this wonderful, crazy, lovable yet frustrating real estate industry of ours.

37 thoughts on “The Big Test for REALTOR Associations and New Speech Code: The Jenna Ryan Situation”

  1. Hi Rob. Just my opinion but in my experiences with our own local board of realtor associations, some of the most unethical agents are Realtors. They are known as most unethical but since fines equal dollars, these agents and brokers are able to conduct business as usual. I’m opening up my own private practice brokerage free from the Realtor destination. I feel like those who choose not to associate themselves with the Realtor designation are somehow looked upon as less ethical and moral than those who are a part of that organization. This is simply not the case.

    I want to be a part of something larger than myself but with everything in flux and my vast experiences with Realtors being anything but above board with little to no repercussions, it’s just not something I want to be a part of anymore. Now this will make it harder on me to do business since they own the MLS and their lock boxes only work for local Realtor agents even though I own my lock boxes bought from the board. Reforms need to happen in many issues here but until then, disconnecting from associations and censoring tech platforms and anything else inhibiting any form of my freedoms are just not something I want to invest in nor associate myself with. The saying of adapt or die in this case is death to business as I know it but Out of this is where exploration and innovation collide and I can’t wait to see where this adventure leads me to.

    • Good for you. What value is there is aligning with a group when half of its members are too ignorant to even understand how to pronounce it? Take that, combined with PAC fees and failure to enforce ethical standards and what do you have? Rent isn’t cheap at 400 N Michigan Avenue, I assure you. With everyone being a transactional agent today anyway and companies like Zillow affording you access to the same data or better due to the incestuous relationship boards seem to have with First American systems, you save local board fees national board fees and MLS fees. And those excessive lockbox fees. How many agents do you see using their own boxes anyway? So it seems pretty smart to me. I wish you good luck. I’d seriously doubt you’d see any falloff.

  2. “End of the REALTOR®️Association”? Really, Rob? Hardly. This is going to prove exactly how well considered 10-5 is.

    Anyone who ever reads anything on my wall knows that politically I am probably the antithesis of this broker. That’s just not the issue here. As you well pointed out, nothing she has stated falls under the heading of hate speech. We have clearly defined what shall and shall not be considered.

    We are an organization that screams from the rooftops that ALL REAL ESTATE IS LOCAL. Our political views are a varied as the populations we serve so that means we cover it ALL. Add to that our well earned reputation that refers to getting us to come together on anything is like herding cats, and it is obvious we won’t agree on this matter from a political standpoint.

    And that is absolutely ok because that is NOT what 10-5 is all about.

    That’s also why (along with the full legal definition-a topic rehashed ad nauseam) 10-5 is not a restriction of free speech. Her legal and licensing issues are an entirely different matter, and again, are not under the purview of 10-5.

    Now, come back to us when there actually IS a question about whether or not someone is demeaning, suppressing, or threatening a member of a protected class and we can have a conversation.

  3. If NAR tried to come down on her for being present and her personal posts/comments. It would lead to the eventual end of NAR. NAR need’s to stay focused and in the business of real estate and real estate related issues. They cannot go down the rabbit hole of social policing, member policing and cancel culture unless it is a clear violation of their membership rules. So we will see if NAR comes after her or not. If they do I predict you will see NAR be dissolved or almost completely irrelevant with in 3 years after. This will be the case with go after any Realtor on any-side of the political spectrum.

  4. I had this discussion the other day with my broker. I’ve been a huge supporter and advocate for being a part of a REALTOR association if someone is going to be involved in real estate.

    Personally, I think NAR needs to stay in their lane. This new rule has me concerned. If it’s just against fair housing violations, fine. But when you start monitoring how we live, and who we support politically, religiously and what we do. Then that is going too far.

    I know I’m safe as I’m a pretty open, accepting and welcoming person. But what if something is taken out of context? What if someone is over heard relaying something that happened?

    What is going too far?

    NAR needs to remember their mission and who their members are, be there to support us. Not be a dictator having members in fear that they might accidentally say or do the wrong thing, or in the case of the above, fearful of what exercising their constitutional right.

    If they committed a crime during a protest, that’s between them and their government/ police/victum. If their “employer” thinks it looks bad on the company – that’s between them. If they get convicted, then it’s up to the state real estate commission to decide the fait of their license. But they need to be fair across the board.

  5. You can not be a Realtor® if you are or have been a convicted felon, just to correct a statement made. She is welcome to her opinion no matter what her Trade Association thinks. She is outside the building and not inside. Clearly she holds those who did violate the law in high esteem, but that is not punishable according to the NAR code of ethics. In Frisco, I am sure she will have many people who agree with her, that is a Ted Cruz area. I have not read many of her posts, nor will I waste my time. As long as she does not use hate speech she is fine, she can use all the stupid speech she wants.

    • “You can not be a Realtor® if you are or have been a convicted felon, just to correct a statement made.”

      I would look at the link I posted about criminal history and REALTOR status….

    • She was inside as well, it was on video.

      But I think she’s fine based on the code as posted. As you said, if it were conduct unbecoming, that would be different – based on the fact that she was inside the building.

      People will decide if they want to use her (and judging from her area – she’ll be fine in that regard as well. I wouldn’t, but it seems as though she’s from the type of area where her actions might not hurt her.)

      And we do consider these aspects. I recently needed a realtor and decided against two friends/acquaintances based on comments passed about the area of the city in which I wanted to live. I never told them why, though they did ask. But if you have a problem with where I want to live, then you won’t profit off my purchase… friend or not.

  6. This is just another example of NAR short-sightendess. If they had investigated the challenges of policing speech under this type of vaguely written speech code policy it would have become clear that it was a very bad idea, and far outside their mission. What is more likely and even worse is that they did investigate and moved ahead anyway as a means to virtue signal. Anyone who has seen how these policies are abused – see Jack Phillips of Masterpiece CakeShop – or understands the inherent conflict they create in our politicized culture, should have seen this coming. In a way, I am glad this is happening because it will become clear that NAR has lost its way and the time has come for it to end.

  7. In attempting to appease the growing drumbeat of liberalism in our country, NAR has opened Pandora’s box by addressing an issue they have failed to adequately define; hate speech.

    Having been involved in several discussions with fellow real estate agents and brokers since 10-5 was announced, it seems none can agree on “the” definition of “hate speech.” More importantly, none can point to NAR’s definition of “hate speech,” because NAR hasn’t created one.

    So, how can NAR, or any NAR member, accuse someone of violating a policy when that policy doesn’t have a definitive standard? It’s like being accused of a crime where there is no defined criminal act.

    By what standard should a “violator” be accused and judged when there is no uniform standard to determine a violation has actually occurred?

    In my opinion, NAR should simply admit that 10-5 was poorly drafted and remove it … but, in their arrogance, I’m confident they won’t.

  8. According to the rules She did nothing in violation of them. I consider her actions horrible and hope she gets prosecuted and sent to jail. That being said it has little to do with the new Article 10-5. It’s like saying someone egged my car so they can’t go to public school. The egging doesn’t preclude the right to attend school. Other than timing this issue shouldn’t be relevant.

  9. Let me reiterate, as I’ve had to delete at least a half dozen comments.

    If you want to argue over what she did, or about the state of the country, or anything other than what NAR, TAR, and local REALTOR Associations ought to do, think about, etc., please take that elsewhere.

  10. Just wanted to add that in one of her own videos, she specifically describes herself in the context of being a Realtor while inside the Capitol. Laughing. As far as NAR codes of conduct & ethics go, sharing a video of yourself on social media where you declare yourself a Realtor while committing a crime… I’m not sure how NAR could ignore that one.

    [Rob: I’m approving this one, though it’s borderline, because of the emphasis on NAR and mentioning the NAR codes of conduct. But it’s close.]

  11. Look for NAR to adopt the Jenna Ryan clause. I don’t see anything in the current rules and bylaws that would give NAR a specific reason to terminate Ryan’s membership with the group but she can’t be a part of the group anymore. This was an unprecedented incident. So NAR will need to take unprecedented measures to address this unprecedented matter. It will definitely raise eyebrows but so be it. Every single employer in America has fired their employee who has taken part in that riot once they are made aware. This is really no different.

  12. Jenna Ryan posted a video of herself in a large mob pushing their way into the Capitol where she said “this is how I’m going to sell your house”. That is a frightening advertising offer! What seller wants any Realtor to bring a mob to their home? Who wants a Realtor that vows to break windows and attack media studios to have access their home? Realtors are almost unique in their ability to enter hundreds or thousands of people’s homes, usually while the home owner is out of the house. 30 years of experience tell me some Realtors are scumbags, but we need to do what we can to weed out the worst for the sake of the industry. I don’t care if the person is spouting left or right wing BS, when they glorify violent overthrow of democracy industry associations, social media companies, employers and those they do business with need to take swift and decisive action.

    [Borderline, but I’ll allow it because of the call to do something by industry associations…]

  13. I would like to present a different perspective, that of a client, as an investor concerning the issue.
    I purchased my first property in 1975 as a young naïve 18-year-old. With the help and guidance from a realtor with the highest integrity that I have know in any individual, I succeed. She helped me in purchasing additional properties by advocating on my behalf when a loan officer refused to loan me money based on me “not being good enough”. She represented the higher standards that customers expect from a realtor as opposed to a real estate agent.
    Customers seldom read the bylaws of the associations they work with, instead customers rely on the perceived credibility of that association. If the actions of the realtors that participated in the disgusting actions at our nation’s capital go unchecked by the association, then I for one will stop using realtors. I expect realtors to be the “next level” for agents and brokers.

  14. It is my understanding, and this is in my local association’s bylaws, that the local associations are all mandated by NAR to include in their Bylaws under “MEMBERSHIP, QUALIFICATION, APPLICATION AND ACCEPTANCE”, the following: “REALTOR members shall have no record of official sanctions rendered by the courts or other lawful authorities for violations of civil rights laws or real estate license laws within the past three years or criminal convictions within the past ten years where the crime was punishable by death or imprisonment in excess of one year under the law under which the applicant was convicted (ten years is measured from the date of the conviction or the release of the applicant from the confinement imposed for that conviction, whichever is the later date).”

  15. I watched Jenna Ryan’s live stream and she mentioned Black Lives Matter as being twisted, She said, why isn’t it White Lives Matter? And, we need to fix that. That is dangerously close to hate speech. Also, I also agree that NAR can’t police what people do in their free time, or their beliefs BUT Jenna dragged the Realtor name into it. When she entered the Capitol she said, This is how Jenna Ryan will sell your house!” What does that mean? Is vandalism one of her professional tools? Another comment, was, I am your realtor, Jenna Ryan, something to that effect next to the broken window. Definitely unprofessional conduct or conduct unbecoming to a Realtor. If she had not brought in her professional status then I agree it would be just between her and the FBI.

  16. As I am reading the revised NAR rules at this link:
    https://www.nar.realtor/about-nar/governing-documents/code-of-ethics/2021-code-of-ethics-standards-of-practice#DutiestothePublic

    I check section 10-5 and it reads:
    REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Adopted and Effective 11/2020)

    While I am in no way in agreement with Ms. Ryan, I don’t see any evidence that shows she used any hate speech, harassing speech, epithets or slurs based on the listed groups.

    Why do you think this is a test case for this part of the code of ethics?

      • I’ve now gone and read you follow up of why you believe this to be a test case for 10-5 and it appears that your entire thesis is based on “what the Left will think” about her actions and her involvement in the insurrection and attempted coup of our government.

        From your section on why you think this, you wrote:
        “What I said, however, is that NAR doing nothing to discipline Ms. Ryan might not go over too well with the Left, REALTORS and otherwise:”

        We are a business trade association and lobbying group. Our business is selling housing and helping transactions. The NAR rules do not explicitly apply and if some members wants there to be a political ‘purity test’ of the type you believe to be coming, it would obviously be outside of the current rules and history of our association. Many member of our association do support President Trump and he literally came to our meeting in 2017 and received a warm welcome.

        https://therealdeal.com/national/2019/05/17/i-feel-like-home-trump-touts-economy-gushes-over-agents-at-nar-conference/

        As you might see by my last name, my family heritage includes people that are Muslim. The deeply antagonistic and hateful rhetoric by Candidate and President Trump towards Muslims would clearly violate the 10-5 rules, but Jenna Ryan has not echoed those from what I’ve seen reported.

  17. At this point, given that she’s been charged and the evidence is abundant, it seems clear that NAR and the regional association will hang back until Ryan is convicted. However, it is interesting as several other commenters have pointed out, that she basically used one of her videos inside the building as an advertisement. She specifically said she is a Realtor, and -mind bogglingly- pointed to the multiple federal crimes she was in the process of committing as reasons for people to hire her. Given that advertising is something that there are strict regulations around and considered a professional act for Realtors, I’m wondering if they might side step 10-5. While the code is more specific about financial criminal activity, there are definitely provisions that apply to criminal activity in the course of acting in a professional capacity. It might allow for the punishment that many see as necessary while avoiding some of the ideological outrage since it hinges on violating the law rather than what is considered hate speech. Overall though, I agree that the 10-5 language has some serious flaws that feels too intrusive to many of us and yet clearly doesn’t succeed at addressing the types of cases NAR obviously intended. I hope going forward this case will cause some introspection about the clause.

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