Posted by Eugene Volokh:
Zillow and the First Amendment:
http://volokh.com/archives/archive_2007_04_29-2007_05_05.shtml#1177792494
The Arizona Board of Appraisal is [1]threatening legal action against
real estate estimate site zillow.com. Here's their letter to zillow:
To Whom It May Concern:
It has come to the attention of the Arizona State Board of
Appraisal (the "Board") that you are operating a web site located
at zillow.com.
The Uniform Standards of Professional Appraisal Practice define
"appraisal" as an opinion of value. On the web site, you provide a
"Zestimate," which is an opinion of value. You are not a licensed
or certified appraiser in the State of Arizona. Under Arizona law:
A. All real estate appraisals and appraisal reviews performed in
this state shall be performed only by individuals licensed or
certified in accordance with the requirements of this chapter. No
person, other than a state licensed or state certified appraiser,
may assume or use that title or any title, designation or
abbreviation likely to create the impression of licensure or
certification as an appraiser by this state.
A.R.S. � 32-3603.
The letter goes on to demand that Zillow "cease and desist from all
appraisal activities in the State of Arizona until such time as they
are performed by a licensed or certified appraiser in this state," and
threatens legal action.
It seems to me that the statute, as interpreted by the board, is at
the very least constitutionally overbroad: It would bar newspaper
articles expressing an opinion of some property's value, casual
conversations about what some property is likely worth, or criticisms
of property tax appraisals based on the speaker's own opinion of a
property's value -- all speech that must surely be constitutionally
protected.
A tougher question would arise if the statute were limited to
commercial advertising -- not just providing information for money
(newspapers, books, and other fully protected content does that), but
providing information as part of an attempt to sell something else. In
that situation, the state could at least bar misleading speech, though
I doubt it could categorically bar all opinions of value other than by
certified appraisers.
The question would also be tougher if the statute were limited to
professional-client speech; such speech [2]may well be less protected
than other speech, though query whether that's right as a matter of
first principles. But while the boundaries of the professional-client
speech exception are vague, it strikes me that one has to have some
personalized interaction for that, not just information provided to
the whole world on a Web site.
But in any event, the statute is by no means limited to these
scenarios; and, if the Board is right that any opinion of value
constitutes an appraisal within the statute's terms, then the statute
is constitutionally overbroad, even if a narrower statute might be
constitutionally permissible in some situations.
References
1. http://www.ocregister.com/ocregister/money/columns/article_1661439.php
2. http://volokh.com/posts/1085773062.shtml
_______________________________________________
Volokh mailing list
Volokh@lists.powerblogs.com
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
