Update: Judge Upholds Love Letters as Free Speech

Love Letters are back…maybe.

The state in January banned Realtors from accepting any letter accompanying an offer to buy real estate on the theory that such letters, written to bolster a buyer’s bid by expressing appreciation for the house, might also reveal a buyer’s race, religion, gender or sexual orientation – making it easier to sellers to discriminate against a protected class.

A federal judge on Thursday granted an injunction against the ban, stating that it violated free speech protections.

While the law did not prevent buyers from writing the letters, which would have been a clear violation of the First Amendment, it blocked access to the seller as the intended recipient. In granting an injunction, the judge made it clear that blocking speech by proxy is the same as preventing speech.

And that makes sense.

Consider: If the state allowed newspapers to be printed but blocked them from being uploaded to the Internet or delivered to people’s mailboxes, it would be obvious that the state was attempting an end-run around the Constitution.

If we regulate speech on the theory that someone might use it for ill, well, there won’t be much speech at all. No more notices of church services will be published because a person who hates religious people might come to a service and shoot them. No more notices of political rallies will be printed because counter-demonstrators always show up and mayhem results. No more photos on Linked-In profiles because they would reveal race. No more Zoom – same reason. No more Facebook/Twitter/Instagram because people self-identify in ways that could be used against them.

The more speech, the more opportunities for discrimination.

That doesn’t mean we should toss the First Amendment.

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