Why Jenna Ryan Is a Test for NAR

Over on Inman, Andrea Brambila wrote a story in which NAR clarifies that what Jenna Ryan and other protestors at the Capitol did is not a violation of its new speech code rules:

Participating in last week’s insurrection at the Capitol was not a violation of the National Association of Realtors’ new ethics policies unless a Realtor directed hate speech toward a protected class while doing so, according to the third of six monthly training webinars the 1.4 million-member trade group will be hosting in the wake of the changes.

That’s good clarification by NAR, but in that story, we find this:

Difanis added that, contrary to what an industry commenter has said, the assault on the Capitol is not the first real “test” of the ethics changes.

“No, for the most part it won’t be,” Difanis said. “Those are separate. Don’t let emotion cloud the objective analysis of the code of ethics, which is what pro standards volunteers already know how to do.”

Fellow committee member Bruce Aydt, who is also an attorney, said that if the issue does not involve harassing speech, hate speech, epithets or slurs about a protected class, it doesn’t fall under the new policy.

“[Being present] in Washington D.C. last week, that’s no violation of Standard of Practice 10-5,” Aydt said. “It can, as Matt said, escalate to that. It can morph or change to it. But political statements one way or the other, attendance at an event, one way or the other, if you go further into criminal activity, as some of the evidence may show, that’s not within the code of ethics as well, though it’s a violation of outside laws.

Obviously, yours truly is the said industry commenter, and Inman’s link goes to the first post I wrote on this topic where I said Jenna Ryan is the first big test of the new speech code.

While I completely appreciate what Difanis and Aydt said, and I agree with them within the bounds of what the ethics changes actually say… I still disagree that this is not the first big test. Time will tell, but right now, I’m not inclined to be so optimistic.

And it does not matter that Ms. Ryan has now been arrested and charged. That’s the government, not NAR. I didn’t think this was a test for the government; I thought it was a test for NAR. I still believe that, so let me explain.

Language vs. Purpose

Let’s start with the fact that Difanis and Aydt are obviously correct as it comes to the actual language of 10-5 and the ethics changes. Sam Debord, as well as others, have pointed this out on Facebook: nothing Jenna Ryan did during her storming of the Capitol violates 10-5. There was no “harassing speech, hate speech, epithets or slurs about a protected class” and therefore does not fall under the new policy, as Aydt clarified.

I said as much in my first post:

[I]t 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.

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:

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.

NAR could, and looks like would, stand behind the plain language of 10-5 and not take action against Ms. Ryan. That’s fine; that is a decision that NAR, TAR, and CCAR may take with full justification. It would be the correct decision under the language of 10-5.

But if I’m a REALTOR on the Left, that is quite unlikely to be satisfactory. I say this because I have over 30 deleted comments from the first post where REALTORS — and more importantly, non-REALTOR consumers — have expressed outrage and fury. I deleted those from the first post because I wanted the commentary to be about what the REALTOR Associations ought to or ought not to do, not about what Ms. Ryan did and is alleged to have done. I won’t do that on this post, so you all can see what the leadership might be facing.

To give some idea of what NAR and the local/state Associations will be facing, however, here’s just a sampling of the comments:

 I find it hard to believe anybody thought events at the Capital that day would remain ‘peaceful’, and if a real estate professional showed up and saw otherwise, they would be wise to leave the scene. Not post pics in front of broken windows nor inside the building. Not stating the insurrection was ‘the greatest day of their life’. Are.you.kidding.me?! People were killed! Many more were hurt! Our elected official’s lives at risk! No professional group would be proud to call Jenna Ryan a member at this point, and although NAR leaves the legal or criminal matters in the hands of the courts, their leadership will surely uphold our reputation as a non-discriminatory profession to serve all peoples. – A REALTOR

This brainwashed woman decides to post her destructive escapades at the Capitol insurrection incited by trump and his followers. By doing so, she and her businesses and livelihood for that matter is fair game for censure. If she can participate in an an attack on our republic, then she has opened herself up for attack. – A REALTOR

As a Trump supporter, you’re going to lose your job/realty. – A REALTOR

No individual anywhere has the RIGHT to be a member of any group anywhere. And again: lots of words to say “I’m a Trump supporter’. I don’t believe these folks understand that they have lost their place in our republic for good. Jesus wept, people. This is really no way for adults to act. Worshipping a fascist because you believe you’ll get rich doing so. – A REALTOR

Is it really still about politics and free speech. To those of us looking in – it’s really about knowing right from wrong at this point. What I see here in these photos is just wrong. I wouldn’t buy anything from someone who was proud of destroying property and showed such poor judgment and frankly , criminal behavior. – A Consumer

As a homeowner with a house on the market in this woman’s territory how can I ensure she is not allowed to show my home? She is a proud Anti-Semite with a Pinterest board filled with Nazi love. I will not allow her or any of her cronies into my home, she is disgrace and a danger to society. – A Consumer

Now, if you look at the purpose of 10-5, the reasoning that NAR provided when it passed those changes, it was to protect the REALTOR brand:

So why would the Committee, and by extension NAR, do this?

It has to do with the appearance of bias, and ultimately, with the public perception of REALTORS… or if you will, the REALTOR brand. The Committee itself noted that this was the primary motivation for the recommendation in the FAQ:

I should be able to say whatever I want on my personal social media profile. It doesn’t impact my ability to do my job. Why is what I say there now subject to the Code? This is going too far.

The Committee felt strongly that a REALTOR®’s speech and conduct reflect on the REALTOR® organization whether said publicly on a business social media profile, or privately on a personal one. According to the Preamble of the Code of Ethics, REALTORS® should be guided by the spirit of the Golden Rule of treating others as one would like to be treated. When a REALTOR® pledges to abide by the Code of Ethics, the highest principles and ethics of REALTORS® must followed in all their activities, and cannot be abandoned in a profession dedicated to protecting the best interests of consumers.

Put simply, when one REALTOR® engages in discriminatory speech and conduct, those actions demonstrate to consumers that they represent the actions of REALTORS® collectively. [Emphasis added]

I truly believe that the Committee was motivated by supremely good intentions: trying to do our part to rid the country and society of the evils of racism, sexism, and hate. I genuinely think the Committee was trying to do more than virtue signal, so that NAR and REALTORS could make a real difference.

If the rationale for 10-5 was to protect the REALTOR brand, then no, NAR cannot refuse to do anything about Ms. Ryan because her actions were “outside of 10-5.”

At a minimum, NAR will have to condemn her actions in the strongest language possible, then immediately move for a new SoP 10-6 or some new thing that would let them punish Ms. Ryan and others like her.

You cannot claim with a straight face that you put 10-5 into place to protect the REALTOR brand, then ignore what Ms. Ryan and others are doing to the REALTOR brand in half of the population and kick the responsibility over to the government.

Of course, doing anything — even condemning Ms. Ryan’s actions — would inflame the Right and get them to start thinking really hard about revolt.

So again, I don’t see a good option here. No easy way out.

It’s Still a Test

As a result, I still believe the Jenna Ryan situation is still a big test for NAR and for local and state REALTOR Associations. Trying to dodge it as NAR appears to be doing by saying her action are outside of 10-5 might work… and it might not work.

It depends on how the Left reacts. If they react with understanding, recognizing that NAR’s Code of Ethics and 10-5 do not apply, and that this is a situation for actual government… then yeah, there are no further problems. From what I’ve seen of the Left and its promotion of cancel culture over the past few years, hoping for mild and understanding reactions seems… ah… overly optimistic. A reminder:

You think these people are going to accept NAR’s reasoning that 10-5 doesn’t apply to Jenna Ryan, so they’re not going to do anything about it? Okay.

But in 2021, there is also the chance that the Right will react negatively, not to NAR’s clarification that 10-5 does not apply to Jenna Ryan, but to the Left’s insistence that “something be done.” They will point to that insistence, and protest that 10-5 is the doorway that allows cancel culture to be part of the Code of Ethics. It won’t matter much to them how much NAR leaders insist that 10-5 only applies to narrow situations; they’ll think about some of the people in their local marketplaces, many of whom are in local leadership positions, and worry about overreach and bias.

NAR cannot heal this divide by kicking responsibility to the government. And that is why this situation remains a big test.

I wish it were otherwise. But wishing doesn’t make it so.

-rsh