IJ Defends Free Flow of Information In “Live Free or Die” State

By Valerie Bayham

“If you can click a mouse, you can sell your house,” boasts www.ZeroBrokerFees.com, an Internet advertising service that helps homeowners sell their homes themselves. Tapping into the fact that more than three-quarters of homebuyers research houses online while real estate agents continue to charge sky-high commissions, Ed Williams and Frank Mackay-Smith founded ZeroBrokerFees.com in 2004.

Ed and Frank believe they have struck the perfect combination of do-it-yourself firepower and a broad support network of friends in the field. By providing basic information about how to sell or buy a home plus links to appraisers, mortgage companies, title companies and even discount brokers, consumers are able to make an informed choice about whether to go it alone or use a real estate agent.

Based just outside of Boston, Mass., the company’s website lists more than 14,000 homes for sale. Not bad for a start-up. But the site has only a few listings in nearby New Hampshire. Fearful of unfriendly government bureaucrats, ZeroBrokerFees.com has been reticent to advertise in the “Live Free or Die” state.

“The Institute for Justice is there to remind New Hampshire bureaucrats that free speech rights can’t be sold away to protect a favored cartel.”

Under current New Hampshire law, companies that advertise and list homes or properties for a fee need a real estate brokers’ license. While newspapers and other publications of general circulation are exempted from compliance, there is no similar exemption for websites. Unfortunately, the Real Estate Commission, which is charged with protecting the public, has already gone after one for-sale-by-owner website when local real estate agents complained that they were losing business.

Businessmen like Ed and Frank have better things to do than complete a 60-hour brokering course and apprentice for a year with a real estate broker—particularly when the website simply provides general information and an advertising forum, exactly like any newspaper in the country. But with fines of up to $2,000 per listing, the Real Estate Commission has the power to shut down these successful entrepreneurs.

Thankfully, the Institute for Justice is there to remind New Hampshire bureaucrats that free speech rights can’t be sold away to protect a favored cartel. In June, the Institute filed suit in the U.S. District Court of New Hampshire, using the First Amendment to protect ZeroBrokerFees.com and other online advertisers.

The First Amendment guarantees that individuals may speak their minds and communicate information without the approval of government censors. After all, 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 should not have a monopoly on providing information about real estate markets. In a nation that values free speech, Internet advertisers like ZeroBrokerFees.com should be free to spread the news about homes for sale.

Borrowing a page from our victory in ForSaleByOwner.com v. Zinneman—a similar for-sale-by-owner case in California—IJ seeks to establish that such website entrepreneurs have the same First Amendment rights as newspaper publishers. Just because they operate online doesn’t mean they should be treated as second-class citizens. While protecting the rights of businessmen like Ed and Frank, IJ will also be protecting consumers. When bureaucrats shut down innovative businesses, consumers have fewer options and face higher costs. Homeowners—not bureaucrats—have a right to determine how best to advertise and sell their homes. With IJ on the case, politically connected realtors won’t be able to stop them.Valerie Bayham is an IJ staff attorney.