My initial response to this article was to assume that a new Oregon law unquestionably violated the First Amendment.  The law, set to take effect in 2022, prohibits prospective home buyers from sending “love letters” about the house in which they’re interested.  Apparently, this is a thing – prospective buyers who may not be able to offer top dollar for a home write a letter to the owner explaining all the sentimental reasons they want the home.  Sellers with an emotional attachment to the home presumably read the letter and sell the house to the author.  As an aside, I’ve only sold one home in my life and we offered it in a down market.  By the time we finally sold it, I didn’t care who bought it.  If the prospective buyer had written me a letter promising to turn it into a crack house, I would have done the deal.

But I digress.  One may wonder why any state legislature – including even a weird state like Oregon – would outlaw this practice.  Well, there is a little more to the story.  The concern apparently is that the sentimental buyers may use the letter to provide information about themselves that result in the seller making a discriminatory decision to sell the house.  Perhaps the buyer talks about their desire to be close to the Catholic church – so the non-Catholic buyer misses out on the deal.

Of course, this law inhibits the buyers from exercising their First Amendment rights.  So, does that mean it’s void right out of the gate?  Not necessarily.  There are plenty of laws that limit the First Amendment.  For example, the seller can’t put a sign next to the for sale sign that says “blacks not welcome.”  But any law that inhibits speech is subject to “strict scrutiny.”  To survive the law has to advance a compelling state interest and it must do so using the least restrictive means.

If (when) this law gets challenged, the court will have to make its decision using this framework.  So, having said all that, can this law survive strict scrutiny?   I’m not so sure.  Ending housing discrimination is surely a compelling government interest.  So I think the law gets over that hurdle.  But is this the least restrictive means to accomplish that worthy goal?  That’s where there may be some trouble.

In assessing the second criteria courts often ask whether the law is under inclusive (it doesn’t reach violations) or over inclusive (it bans innocent conduct).  This one might be both.  The law prohibits prospective buyers from providing anything other than “customary documents.”  But those documents would contain the buyer’s name.  So a discriminating seller would be able to go online and likely get a pretty thorough picture of the buyer.  The law doesn’t stop that conduct, which makes it under inclusive.

But the law does stop a note that simply says, “I love the way the sun breaks through the window in the morning. I look forward to watching sunrises from the front window.”  That note discloses nothing about the buyer (except for being an early riser) that would lead to any discrimination.  So it’s over inclusive too.

I don’t have a problem with the motivation for the bill, but I think its execution is problematic to say the least.  Not sure this law is likely to survive.  Love wins again.