Wednesday, May 23, 2007

Not so fast, New Hampshire Real Estate Commission

I recently wrote about a motion for summary judgment filed by the defendants in the ("ZBF") federal lawsuit pending in New Hampshire. The motion referred to a April 19, 2007 New Hampshire Real Estate Commission meeting at which the Commission apparently indicated that ZBF was not subject to the New Hampshire Real Estate Practice Act. I (and perhaps the Commission and others) figured that was a victory for plaintiff, case closed. Not so fast.

An attorney with the Institute for Justice ("IJ"), which is representing ZBF in this matter (and represented in its successful 2004 action against the California Real Estate Commissioner on a very similar free speech issue), recently shared a April 24 IJ press release with me that states that because the Commission's action is apparently not binding, and only applicable to ZBF, plaintiff and IJ intend to push forward with the case against the Commission officials. Here's an excerpt from the press release:

“The Real Estate Commission could have exempted and other for-sale-by-owner websites from the law at any time, but instead it has fought tooth-and-nail to stifle online entrepreneurs,” said Valerie Bayham, an IJ staff attorney representing “The Commission only budged once it was facing a federal lawsuit. Real estate websites and the consumers who use them need stronger protection than a temporary and limited exemption.”

IJ and will go forward with their legal challenge in order to secure a ruling from the courts—or a stronger decision from the Commission—that New Hampshire’s licensing scheme violates the First Amendment right to free speech and cannot apply to real estate websites.

“We are trying to protect our First Amendment rights along with the rights of anyone else who wants to advertise their home without seeking the government’s permission,” said Frank Mackay-Smith, co-founder of

It sounds like ZBF is not ready to stand down, and has very competent counsel representing it in this important case. Stay tuned.

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