In today’s red-hot housing market where homes often sell after fevered bidding wars, buyers are looking for any edge. A popular one is the “love letter,” a letter from a prospective buyer to a seller explaining why their family would be a perfect fit for a house. These letters, many of which include photos, aim to find “a common connection with the seller,” as one online finance site puts it—to pull on the seller’s heartstrings as they consider which of perhaps several competitive offers to accept.
Fair housing advocates say love letters are invitations to discriminate. Home sellers may want to pass their house on to people like themselves. That stacks the deck in favor of white buyers, since whites own a disproportionate percentage of the nation’s housing stock: 72 percent of non-Hispanic white households own homes, compared to 48 percent of Hispanic and 42 percent of Black households. These letters can also facilitate discrimination on the basis of religion, sexual preference, and other protected factors.
On January 1, Oregon became the first state to outlaw “love letters” altogether. State Rep. Mark Meek, who sponsored the bill, is a realtor who has seen how the letters work in practice. “All of a sudden,” he told Pew, “these pictures flash in my face, them and their kids, them and their dogs,” explaining how their kids can walk to school and their family can walk to church together on Sundays. At a hearing on the bill, Meek asserted that love letters perpetuate “systemic issues of bias in real estate transactions.”
Oregon could be the first of many states to ban “love letters”; last year, while the legislation was pending, The National Law Review called it “a potential harbinger of the future.” But last month, a federal judge stopped the momentum in its tracks, issuing a preliminary injunction against enforcement of the Oregon law on First Amendment grounds. A real estate firm challenged the law, arguing that it prohibits important speech that should be protected. U.S. District Court Judge Marco Hernandez, an Obama nominee, sided with the challengers, enjoining the law for being overly inclusive and banning significant amounts of innocuous speech.
The real estate firm was represented by the conservative Pacific Legal Foundation, which hailed the result for preserving a buyer’s right to convey “information that helps sellers select the best offer.” PLF’s involvement is not surprising. Conservatives have embraced the First Amendment as a tool for striking down an array of laws enacted to protect minorities and vulnerable people. They have used it to challenge campaign finance restrictions, including restrictions on corporations, as in Citizens United v. FEC. They have used it to strike down laws requiring workers to pay “agency fees” to public sector unions that represent them, doing great damage to the labor movement in the process. The Pacific Legal Foundation’s lawsuit is just another example of conservatives using the First Amendment to thwart some form of progress.
In court, Oregon offered strong evidence in support of the law. It showed that there was a long history of housing discrimination in the state, and a 21-percentage-point difference in home ownership between Black and white Oregonians. It presented expert testimony that “sellers may consciously or unconsciously prefer buyers who describe a profile that is most similar to their own in terms of demographics and family status,” and that these decisions exacerbate segregation by making it harder for minorities to buy homes. Another expert analyzed the love letters produced by the real estate firm and found that an incredible 93 percent of them disclosed the buyer’s race, color, religion, sex, sexual orientation, national origin, marital status, familial status, or disability. About half had similarly revealing photographs.
Oregon also produced evidence that love letters work. A recent study by the real estate company Redfin examined 14,000 transactions and found that 40 percent of the offers included love letters. Love letters increased the likelihood that an offer would be accepted, the study found, by 59 percent.
Oregon’s law does restrict speech, but that does not mean it violates the First Amendment. The Supreme Court has established a three-part test for laws that restrict commercial speech, which is less protected than other kinds of speech. First, the state must show that the restriction advances a “substantial interest”; as Hernandez conceded, Oregon’s law clearly qualifies. Second, the restriction must directly advance the interest involved. Here, too, the judge agreed the law passed the test.
Finally, the restriction must be no broader than necessary to serve that interest—and it was on this ground that Hernandez enjoined enforcement of the law. He suggested that Oregon could have used a less intrusive means of addressing the problems created by love letters—requiring real estate agents to redact identifying information, for example, or banning the inclusion of photographs.
“In 15 years as a realtor, I’ve yet to see one of these letters that is not a blatant violation of the spirit of the Fair Housing laws.”
These suggestions might sound intuitive, but they are not convincing. For example, it’s not clear agents would redact effectively, and this alternative does nothing for home sales in which there is no agent. The judge also noted proposals from the Pacific Legal Foundation to mandate fair housing disclosures in home sales and/or to require more fair housing training for real estate agents. There is no reason to believe that adding more paperwork to a transaction or forcing bored brokers to sit through a professional responsibility seminar would be anywhere near as effective.
It is important to appreciate just how low-value buyer love letter speech is, and not just because it falls into the commercial speech category: Love letters are mostly cringe-inducing pleas from prospective buyers who feel they are entitled to special treatment. When The New York Times covered the practice last year, readers filled the comments with anecdotes about how love letters are almost always worthless, offensive, or both. “15 years as a Realtor, I’ve yet to see one of these letters that is not a blatant violation of the spirit of the Fair Housing laws,” wrote one. “‘I can’t wait to raise my family here’… ‘we will fit in so well with the neighbors’…‘my daughter just loves the swing set.’ Just. Don’t.”
Another reader was even more pointed: “I read the letters my daughter received when she was selling her entry level condo in South Boston: a tough housing market. I got embarrassed reading them. They were so cloying and needy. Who started this trend?”
Before the Oregon ruling, momentum was building against “love letters” in the civil rights community, the media, and even the real estate industry. In November, the National Association of Realtors issued guidance recommending that its members not draft, read, or even deliver love letters at all. Yet when conservative interests see a movement forming, rather than debate the policy on the merits, their tried-and-true strategy is weaponizing the First Amendment to stop it.