New Hampshire Free Speech

Introduction

Technological advances have the potential to save consumers billions of dollars in real estate transaction costs—making the dream of homeownership accessible to more and more Americans.[i]  But rather than helping New Hampshire homebuyers capture these cost savings, the Granite State protects real estate agent profits by shutting down the competition and reducing innovation.

The Internet is revolutionizing how Americans buy and sell their homes.  No longer are consumers dependent on local real estate agents as the sole purveyors of information.  Today’s consumers can log onto any number of websites, including a growing number of for-sale-by-owner (FSBO) websites, to instantly gain access to a world of information.

Leading the charge are companies like ZeroBrokerFees.com, a Massachusetts-based Internet advertising service founded in 2004 by Ed Williams and Frank Mackay-Smith.  Recognizing that the Internet makes selling a home easier than ever before, Williams and Mackay-Smith believe that individuals have the right to determine how best to advertise and sell their homes.  By taking advantage of information efficiencies offered by the Internet, FSBOs and discount brokers (licensed real estate agents who offer pay-per-service or reduced commissions) can eliminate or reduce real estate commissions.

In New Hampshire, companies such as ZeroBrokerFees.com that advertise and list homes or properties for a fee must become licensed real estate brokers in order to do business in the state.[ii]  There is absolutely no reason—other than kowtowing to politically connected real estate agents—to forcibly prohibit websites from doing what newspapers do every day.[iii]  Economists and legal scholars have recognized for years that restrictive licensing laws do more harm to consumers than good.[iv]  And when weighed against the First Amendment, the free flow of information has a clear legal mandate[v] in addition to being simply good public policy.

Starting on June 13, 2006, online advertisers represented by the Institute for Justice are fighting back, filing Skynet Corporation d/b/a ZeroBrokerFees.com v. Slattery in U.S. District Court for the District of New Hampshire.  In a First Amendment challenge to New Hampshire’s onerous real estate licensing laws, ZeroBrokerFees.com seeks to enforce free speech guarantees that individuals may speak their minds and communicate information without the approval of government censors.  Allowing licensing officials to make distinctions among publications—such as between newspapers and FSBO websites—cannot be permitted if speech is truly free.

The Institute for Justice is a national non-profit, public interest law firm that defends the free flow of commercial information and the rights of entrepreneurs.  IJ won a First Amendment victory in federal court challenging a California law similar to New Hampshire’s on behalf of another FSBO website.

The Beginning of the Real Estate Turf Wars

In the olden days of real estate, agents made their living as information brokers.[vi]  Today, from researching neighborhoods and home prices, to getting appraisals, financing and title insurance, much of the information that used to be available only from real estate agents is now publicly available and easily accessible online.  This free flow of information empowers consumers and offers opportunities to make homeownership both easier and more affordable.  The Progressive Policy Institute, for example, estimates that using information technology to its full potential could cut the transaction costs of home buying in half, saving home buyers nearly $40 billion a year.[vii]

Over the past decade, homebuyers have embraced the efficiencies of the Internet.  In 1995, only two percent of homebuyers used the Internet during their home search; a mere 10 years later, that number has ballooned to a whopping 77 percent.[viii]  Today’s real estate professionals are brokers of services rather than information.[ix]  As is the case with most services, people pay only for those they want performed—thus placing downward pressure on real estate commissions.

Not surprisingly, real estate agents are determined to keep as much money in their pockets as possible.  Twelve states have laws banning commission rebates; other states are attacking discount brokers by requiring them to only offer full-service options (rather than allowing consumers to purchase only those services they want or need assistance with).[x]  It is particularly difficult to root out real estate agents who boycott properties listed with discount brokers.[xi]  It doesn’t help that “many of the state commissioners [charged with protecting the public] are de facto appointees of the real estate board.”[xii]  Protectionist regulations and practices like these simply mean that consumers pay more for services—sometimes services consumers either don’t want or don’t need.

The revolution is coming.  The Department of Justice and the Federal Trade Commission have been actively investigating anticompetitive and collusive behavior in the real estate industry.[xiii]  Despite the establishment’s entrenchment and blackballing, the Internet is finally beginning to have its promised effect on real estate commissions: the average dropping in recent years from 6.0 to 5.1 percent.[xiv]

Victories in minor skirmishes aren’t enough.  As the real estate market begins to cool down, homeowners are looking to get every last dollar from their house.  And with the median price of a home in the Granite State exceeding $250,000,[xv] savvy buyers are searching the Internet for FSBO properties before using an agent, hoping to split the savings on commissions.  But for consumers to take full advantage of the efficiencies offered by the Internet, the State of New Hampshire needs to stop standing in the way.

Closing Ranks: Real Estate Licensing in New Hampshire

New Hampshire defines a real estate “broker” broadly, including a person who receives compensation for either listing real estate for sale or assisting or directing in the procurement of prospects calculated to result in the sale of real estate.[xvi]  Either definition would include FSBO websites—like ZeroBrokerFees.com—that simply help sellers advertise properties for sale.  To make doubly sure that there is no mistake in intention, the statute also notes that charging an advance fee to promote property simply by listing it in a publication or database is also brokering.[xvii]

Listing property without a broker’s license is a serious offense, punishable with a fine up to $2,000 per listing.[xviii]  For a small business like ZeroBrokerFees.com, fines of that magnitude jeopardize its ability to remain in business.

Completing New Hampshire’s strenuous licensing hurdles isn’t a viable option for Internet entrepreneurs either.  Prospective licensees in New Hampshire must complete a 60-hour course of study and demonstrate either one year of full-time employment with an active principal broker or 2,000 hours as a part-time licensed salesperson.[xix]  They must also pass an examination administered or approved by the commission.[xx]  For a website that simply wants to help consumers advertise homes for sale, the time and financial cost of complying with these ridiculous requirements are an irrational and unnecessary obstacle.

Of course, New Hampshire doesn’t require everyone who sells a house to hold a real estate broker’s license.  Individual homeowners are free to sell their homes themselves.  They can even run advertisements in their local newspaper, since newspapers and other publications of “general circulation” are exempt from the advance fee prohibition.[xxi]

But heaven-forbid an entrepreneur would actually want to publish an advertisement in a medium specifically geared towards those in the market for a new home.  The New Hampshire Association of Realtors—an industry trade group numbering over 7,000 members[xxii]—just might take aim and fire, filing a complaint with the New Hampshire Real Estate Commission.  In fact, it already has filed a complaint against at least one FSBO website already.[xxiii]

Complaints are evaluated by the New Hampshire Real Estate Commission, the state agency charged with enforcing real estate laws.  But just how objective can the Commission be?  Three of the five members are members of the New Hampshire Association of Realtors (and two of those are former presidents of the trade group).[xxiv]  The State of New Hampshire represents all the people of the state—not just real estate agents.  Allowing agents to use the law to protect their commissions and harass their competition is just plain un-American. The Plaintiff

Skynet Corporation publishes and operates www.ZeroBrokerFees.com, an Internet website that advertises properties for sale across the country, including New Hampshire.  ZeroBrokerFees.com is, in essence, an online classified ad service.  The company charges a flat fee to property owners who want to list their properties for sale in the company’s nationwide database of properties.

ZeroBrokerFees.com uses the Internet to distribute its listings to a large audience—providing consumers maximum choice and flexibility in selling or buying their home without paying high broker commissions.  Sellers control their advertisements.  They decide what information to include and how the ads are written.  They can include descriptions of the neighborhood, pictures of their homes and even virtual tours.  They can even access and update their ads at any time.  Sellers also arrange their own home viewings, allowing them to schedule viewings at their own convenience.

Buyers are also able to maximize choice and flexibility.  The database is fully searchable by location, price, size and other attributes.

Both sellers and buyers can also access volumes of free information from the website, including basic how-to information on how to sell or buy a home.  The website also offers links to various real estate vendors, including appraisers, mortgage companies, title companies and even discount brokers.  By cutting out the middleman, sellers and buyers have more control over the transaction.  In short, ZeroBrokerFees.com empowers consumers to buy or sell homes on their own terms at a cost far less than standard real estate commissions.

ZeroBrokerFees.com was started by Ed Williams and Frank Mackay-Smith, former mortgage lenders who quickly recognized the power of the Internet to transform real-estate transactions. After earning their stripes at another FSBO website, Williams and Mackay-Smith struck out on their own with a business plan geared towards working with discount brokers in addition to providing traditional FSBO advertising.

Williams and Mackay-Smith believe they have struck the perfect combination of do-it-yourself firepower combined with a broad support network of friends in the discount brokerage field.  Consumers seem to be responding.  In its inaugural year, the small business grossed annual revenues of more than $110,000 and expects to triple that success this year.  Its national database contains almost 14,000 properties for sale.  In addition to its FSBO website, ZeroBrokerFees.com has a cable television show out of Hudson, N.Y., and is launching a magazine business with distribution in Massachusetts, New Hampshire, and Rhode Island.

The Battle to Protect First Amendment Rights and the Free Flow of Information

Free speech is indispensable to our republican form of government and to our free enterprise economy.  As the Supreme Court has noted, “It is a matter of public interest that [economic] decisions, in the aggregate, be intelligent and well-informed.  To this end, the free flow of commercial information is indispensable.”[xxv]  Simply put, we don’t restrict the free flow of information about medicine to only doctors, and we don’t let only politicians talk about politics.  Real estate agents shouldn’t have a monopoly on providing information about real estate markets.

Thankfully, the right to free speech—including online advertising—is amply protected under the First Amendment. For-Sale-By-Owner website entrepreneurs have the same First Amendment rights as newspaper publishers.  They should not be treated as second-class citizens.

On behalf of ZeroBrokerFees.com and other websites whose speech is being unnecessarily chilled in New Hampshire, the lawsuit filed by the Institute for Justice raises three complementary First Amendment claims: prior restraint, viewpoint discrimination and commercial speech.

Prior Restraint

A prior restraint is any restriction that requires a speaker to obtain the government’s permission before speaking or conveying information.  The Founding Fathers believed that our liberties depended on the right to freely publish information, without first obtaining the government’s consent.[xxvi]  The U.S. Supreme Court has echoed that sentiment, noting, “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.”[xxvii]  Prior restraints thus receive an extremely high level of scrutiny and are presumptively unconstitutional.[xxviii]

In Taucher v. Born, the Institute for Justice successfully challenged a provision of the Commodity Exchange Act as an unconstitutional prior restraint on free speech.  The Commodity Futures Trading Commission had tried to require publishers of investment websites, newsletters and software programs to register as commodity trading advisors.  Relying on the Supreme Court’s decision in Lowe v. Securities and Exchange Commission,[xxix] the court found that there was a fundamental difference between general and personalized advice.[xxx]  To be considered a professional regulation rather than an unconstitutional prior restraint, the prohibition must be framed to catch only those who offer individualized advice, tailored to the needs and circumstances of an individual client.  Thus, the government can regulate attorneys, doctors or financial advisors who provide tailored advice to individual clients, but it cannot similarly restrict those who provide more generalized advice.[xxxi]

Based on the New Hampshire Real Estate Commission’s definitions, simply listing real estate for sale is sufficient to constitute acting as a broker—even though listing a property for sale and even general attempts to find would-be buyers to peruse the website does not entail the type of personalized advice and fiduciary relationship that warrants licensing as a profession.  Websites like ZeroBrokerFees.com don’t exercise judgment on behalf of individuals nor do they provide specific advice on particular transactions.  Instead, they offer the same general information and services to everyone.  New Hampshire’s regulations are thus a prior restraint on online advertisers and deserve to be struck down under the First Amendment.

Viewpoint Discrimination

Unconstitutional viewpoint discrimination occurs whenever government prevents certain views or speakers from being heard, while allowing others.[xxxii]  The U.S. Supreme Court has also noted that discriminating against particular channels of speech violates First Amendment principles.[xxxiii]  Rather than censoring specific speakers or viewpoints, the First Amendment lets the market determine which ideas are worthy of circulation.

New Hampshire’s real estate laws are discriminatory because they specifically allow “newspapers and other publications of general circulation” to publish lists of property for sale without a broker’s license while prohibiting others from offering a similar service.  Thus, the Commission can specifically target FSBO websites for listing property, helping homeowners find prospective buyers by driving more consumers to the website and charging advance fees for listing in a database—all staples of newspapers—while leaving newspapers free to publish this information.  Worse, since the Commission hasn’t bothered to define what a publication of general circulation is, decisions about whether to prohibit specific FSBO websites are an arbitrary exercise of governmental power.

For-sale-by-owner website entrepreneurs have the same First Amendment rights as newspaper publishers.  Under our constitution, the government is not allowed to have one set of rules for newspapers while applying different standards for FSBO websites that perform a similar function.  A law that “singles out the press or a small group of speakers” is presumptively unconstitutional and warrants the strictest scrutiny.[xxxiv]  The state’s discriminatory treatment of online advertisers serves no compelling state interest and cannot stand.

Commercial Speech

For over 30 years, the U.S. Supreme Court has recognized that commercial speech—such as advertising or other speech that proposes a commercial transaction—deserves significant First Amendment protection.[xxxv]  Before regulating online advertising, the government must have a substantial reason for restricting speech and any limits must be carefully designed to actually achieve the government’s objectives while having only the narrowest infringement on speech.[xxxvi]

Instead, New Hampshire’s real estate licensing requirements are patently absurd.  While protecting consumers may be laudable, that interest isn’t served by New Hampshire’s requirement that online advertisers spend at least a year and hundreds of dollars obtaining training and experience largely irrelevant to the service they provide.  Exceptions for newspapers—despite the fact that the speech is essentially the same as that of regulated FSBO websites—further undermine the government’s position.[xxxvii]  Meanwhile, consumers are actually harmed since these restrictions unnecessarily increase the cost of doing business.[xxxviii]

In addition to actually addressing the government’s concerns, commercial speech restrictions must also be the least restrictive means necessary to resolve the government’s concern.  To quote a recent Supreme Court decision on commercial speech, “if the First Amendment means anything, it means that regulating speech must be a last—not first—resort.” [xxxix]  The publication of false or misleading materials, fraud, false and deceptive advertising, and deceptive trade practices are already crimes in New Hampshire.[xl]  The State doesn’t need to interfere with free speech rights to protect consumers.

Finally, the Supreme Court has soundly rejected the blatant paternalism evident in New Hampshire’s real estate licensing scheme, recognizing instead that the free flow of information is the foundation of our nation’s economic system.[xli]  Real estate agents are free to argue that their services are worth the premium buyers and sellers routinely pay them.  But they have to make that argument directly to the public, rather than using the regulatory power of the state to force their beliefs on everyone.[xlii]

This case is about consumer choice.  Individuals have a right to determine how best to advertise and sell their homes.  Politically connected realtors should not be able to stop them.

The Defendants

The defendants in this case are the five members of the New Hampshire Real Estate Commission, each of whom is being sued in his or her official capacity.  The Commission, which is located in Concord, is responsible for regulating New Hampshire’s real estate brokers and salespersons.  Its membership is made up of two licensed real estate brokers, one real estate salesperson, one attorney and one member of the general public.  Two of the current members of the Commission are former presidents of the New Hampshire Association of Realtors, the trade group that represents numerous real estate agents in New Hampshire.

Litigation Team

Staff attorney Valerie Bayham, who litigates economic liberty and free speech cases nationwide, will lead the Institute for Justice’s litigation team.  Most recently, Bayham successfully untangled hairbraiders from cosmetology regulations in Mississippi and ensured that all Missourians—not just licensed funeral directors—have the right to sell caskets.  She will be joined by William H. Mellor, president and general counsel of the Institute for Justice, and IJ Senior Attorney Steve Simpson, whose practice focuses on free speech, economic liberty and property cases.  Simpson served as lead counsel in ForSaleByOwner.com v. Zinnemann, in which the Institute successfully vindicated the rights of a FSBO website by successfully challenging a similarly restrictive California law.  Assisting the Institute for Justice as local counsel are Charles Douglas and Jason Major of Douglas, Leonard & Garvey, P.C., in Concord.

Founded in 1991, the Institute for Justice has successfully represented entrepreneurs nationwide who fought arbitrary government regulations:

ForSaleByOwner.com v. Zinnemann: The Institute for Justice won a victory against the real estate establishment in California, freeing online advertisers from complying comply with California’s onerous real estate licensing scheme.

Craigmiles v. Giles: IJ’s suit led a federal court to strike down Tennessee’s casket-sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the U.S. Court of Appeals for the Sixth Circuit and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.

Swedenburg v. Kelly: IJ’s suit on behalf of Virginia and California vintners and New York wine consumers led to a U.S. Supreme Court victory declaring unconstitutional New York and other states’ laws that barred the interstate direct shipment of wine.

Taucher v. Born: IJ set an early and important precedent extending First Amendment protection to software developers and Internet publishers after the CFTC had sought to license these individuals.

Clutter v. Transportation Services Authority: IJ busted up Las Vegas’ entrenched limousine cartel that had stifled competition by blocking new entrants.

Jones v. Temmer: IJ helped three would-be cab company owners overcome Colorado’s 50-year-old taxicab cartel.  IJ then helped break down government-sanctioned taxi monopolies in Indianapolis and Cincinnati.

Ricketts v. City of New York: IJ’s advocacy helped strike down the New York City Council’s veto of new van services.

Wexler v. City of New Orleans: IJ won an important First Amendment victory on behalf of book vendors in New Orleans when a federal court struck down as unconstitutional the City of New Orleans’ blanket ban on selling books on the street.

Cornwell v. California Board of Barbering and Cosmetology: IJ represented African hairbraiders to defeat California’s cosmetology licensing requirements for their craft.  IJ has helped reduce onerous licensing requirements for hairbraiders in Arizona, California, Georgia, Minnesota, Ohio, Washington State and the District of Columbia.

For more information, contact:

Bob Ewing (Communications Coordinator) Lisa Knepper (Director of Communications) Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA  22203 (703) 682-9320

[i]       See Shane Ham & Robert D. Atkinson, Modernizing Home Buying: How IT Can Empower Individuals, Slash Costs, and Transform the Real Estate Industry, Progressive Policy Institute 1 (Mar. 2003).

[ii]       N.H. Rev. Stat. Ann. § 331-A:2(III)(d), (h), and (j) (2005).

[iii]       In fact, many newspapers currently offer online advertisements for New Hampshire homes, including the Union Leader, Concord Monitor, Boston Globe and Boston Herald.

[iv]       See generally, Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition? (2006); David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Construction to the New Deal (2001); S. David Young, The Rule of Experts: Occupational Licensing in America (1987); Robert Kry, The “Watchman for Truth”: Professional Licensing and the First Amendment, 23 Sea. U. L. Rev. 885, 888 (2001).

[v]      Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412 (1993); Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 195 (1999); Thompson v. Western States Med. Ctr., 535 U.S. 357, 373 (2002).

[vi]       See Kristen Millares Bolt, A New Player in Real Estate Market, Seattle Post-Intelligencer, Dec. 15, 2005.

[vii]       Shane Ham and Robert D. Atkinson, Modernizing Home Buying: How IT Can Empower Individuals, Slash Costs, and Transform the Real Estate Industry, Progressive Policy Institute 2 (Mar. 2003) (of which 35 percent, or 13.9 billion, is attributed to the potential for lower real estate commissions).

[viii]       Emmet Pierce, Surging Web Use by Home Seekers Hasn’t Eliminated A Need for Agents, Union-Tribune (San Diego), Apr. 23, 2006.

[ix]       Consider what Thomas M. Stevens, president of National Association of Realtors, noted recently: “Hey, [FSBO sales] can be done.  But I can tell you I wouldn’t do it… My wife and I don’t have the time.”  Sandra Fleishman, Take My Pad, Please: DIY Home Sales Mean Bigger Profits and, Often, Bigger Hassles, Washington Post Express, May 26–28, 2006, at E6.

[x]       See Clay Risen, Realtors v. the Internet, New Republic, May 2, 2005 (online version); Jon Birger & Joan Caplin, The 4 ½% Solution, Money, Oct. 2004, at 107 (of the fifteen states noted by Birger/Caplin, three have stopped prohibiting rebates).

[xi]       See, for example, Birger & Caplin, supra at note 10.

[xii]       Risen, supra at note 10, quoting Brad Inman, a real estate journalist and editor of Inman News.  In New Hampshire, two out of five members of the New Hampshire Real Estate Commission are former presidents of the New Hampshire Association of Realtors.

[xiii]       National Association of Realtors Fighting Fires on Several Fronts, MortgageNewsDaily, May 24, 2005; Blanche Evans, DOJ Sandbags NAR with Lawsuit Following NAR’s Revised Internet Listings Display Policy Announcement, Realty Times, Sept. 9, 2005.  See also John Birger, How Come We Still Pay This Man 6%?, Money, June 2005, at 23.  The DOJ and FTC co-hosted a workshop on competition in the real estate industry on October 25, 2005; see http://www.usdoj.gov/atr/public/workshops/reworkshop.htm#overview.

[xiv]       Noelle Knox, It’s Always Open House as Real Estate Goes Online; Internet’s Easily Accessible Info Shifts Power from Agents to Sellers, Buyers, USA Today, May 8, 2006, at 1A.

[xv]       Jim Roche, Growing Pains: Housing New Hampshire’s Work Force, Business & Industry Ass’n N.H., May 18, 2006; see also Office of Federal Housing Enterprise Oversight, House Appreciation Continues at Robust Pace: OFHEO House Price Index Shows Annual Rise of Nearly 13 Percent; Unprecedented Increases in 26 Metropolitan Areas at 15 (average home prices in New Hampshire appreciating nearly 10 percent during 2005).

[xvi]       N.H. Rev. Stat. Ann. § 331-A:2(III)(d) & (h) (2005).

[xvii]       N.H. Rev. Stat. Ann. § 331-A:2(III)(j) (2005).

[xviii]       N.H. Rev. Stat. Ann. § 331-A:28(I) (2005).

[xix]       N.H. Rev. Stat. Ann. § 331-A:10(II)(b) & (c) (2005).  Demonstrable experience equivalent to one year employment with an active principal broker or 2,000 hours as a part-time licensed salesperson is also acceptable.

[xx]       N.H. Rev. Stat. Ann. § 331-A:10(II)(b) (2005).

[xxi]       N.H. Rev. Stat. Ann. § 331-A:2(I) (2005).  See ALR § 37 with various definitions of “general circulation”; there is no case or statutory law defining general circulation in New Hampshire.

[xxii]      See http://nhar.org/m/modules.php?name=Docs&file=mission.

[xxiii]      Realtors’ Complaint to Continue, Union Leader (Manchester), June 4, 2005, B4.  See also http://nhar.org/m/modules.php?name=News&file=article&sid=133.

[xxiv]      Denis Paiste, ISoldMyHouse.com Appeals May Decision, Union Leader (Manchester), June 4, 2005, at C1.

[xxv]      Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).

[xxvi]      See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 548 (1976) (citing 9 Papers of Thomas Jefferson 239 (J. Boyd ed. 1954).  See also Lawrence Tribe, Constitutional Law § 12-34 (2d ed. 1988) (noting that the First Amendment was intended to prevent the government’s imposition of a press-licensing regime similar to that in place in England, where nothing could be printed without prior approval from the state).

[xxvii]      Neb. Press Ass’n, 427 U.S. at 559.

[xxviii]      Id. at 558.

[xxix]      472 U.S. 181 (1985).

[xxx]      53 F.Supp.2d 464, 477–78 (D.D.C. 1999).

[xxxi]      Id. at 476–79.

[xxxii]      Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 194 (1999) (“decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment”); City of Lakewood v. Plain Dealer Pub. Co., 486 U.S 750, 763 (1988) (“a law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship”).

[xxxiii]      City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412 (1993) (striking down newsrack ban that only applied to newsracks for commercial publications as arbitrary); see also The Pitt News v. Pappert, 379 F.3d 96, 111 (3d Cir. 2004) (law prohibiting paid alcohol advertising only in media connected to educational institutions was unconstitutional because it targeted only a narrow segment of the media).

[xxxiv]      The Pitt News, 379 F.3d at 111.

[xxxv]      See Va. Bd. of Pharmacy, 425 U.S. at 761–70.

[xxxvi]      Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557, 564 (1980).

[xxxvii]      See, e.g., Greater New Orleans Broadcasting Ass’n, 527 U.S. at 190–91 (striking down ban on broadcast advertising for casino gambling because it contained numerous exemptions for certain types of casinos); Discovery Network, 507 U.S. at 424 (striking down ban on commercial newsrack because it exempted other newsracks).

[xxxviii]      Becoming a New Hampshire real estate broker takes over a year and costs at least $700; the cost of both must be recouped through higher advertising fees.

[xxxix]      Thompson v. Western States Medical Ctr., 535 U.S. 357, 373 (2002).

[xl]      N.H. Rev. Stat. Ann. § 638:6 (2006)

[xli]      See Va. Bd. of Pharmacy, 425 U.S. at 373.

[xlii]      See, e.g., id. at 769–70 (1976) (arguing that “professional” pharmacists—as opposed to low-cost, high-volume providers—are free to advertise their own assertedly superior product, but they cannot restrict low-cost providers from marketing their cost advantages to consumers).