Oregon ban on real estate ‘love letters’ blocked by preliminary injunction

A federal judge on Friday granted a preliminary injunction that prohibits Oregon from enforcing a law against “love letters” to home sellers.

In his court order, District Judge Marco A. Hernández says Oregon’s House Bill 2550 “likely violates” the First Amendment rights of real estate agents.

“It is not in the public interest to enforce a law that is likely unconstitutional, even one aimed at the laudable goal of reducing unlawful discrimination in housing,” his legal opinion reads.

The 2021 law was the first of its kind in the nation. It prohibited buyers from providing “love letters” and personal photographs to sellers as a way to improve their chances of getting the house they want. Supporters argue that these letters perpetuate housing discrimination by revealing a buyer’s race, religion, sexual orientation or marital status.

The real estate market has grown uneasy with love letters because they risk raising a housing discrimination claim. Many real estate agents won’t accept them. Still, proponents say these letters are often the only edge a first-time buyer has against deep-pocketed investors that buy entry-level homes.

Shortly after the law passed, the conservative Pacific Legal Foundation filed a lawsuit on behalf of the Bend-based Total Real Estate Group. They filed the lawsuit against Oregon Attorney General Ellen Rosenblum and Real Estate Commissioner Steve Strode, alleging that forbidding these communications violates their First Amendment rights.

Hernández’s legal opinion acknowledges Oregon’s “long and abhorrent history” of racist housing discrimination. He points to laws that outright prohibited people of color from owning land in Oregon, as well as governmental policies and industry practices that continue to enable housing discrimination to this day.

Even so, Hernández says he doesn’t think HB 2550 could stand against a First Amendment claim in court, mostly because it’s too broad. Instead of specifically prohibiting “love letters,” the law bans all written communication outside of “customary documents.” The law doesn’t specify what “customary documents” include.

Hernández suggests two alternatives that were originally included in Pacific Legal Foundation’s legal claim. Lawmakers could allow love letters but require real estate agents to edit out any information that could reveal the buyer’s race, religion, sexual orientation or marital status. On top of that, lawmakers could prohibit buyers from providing personal photos to sellers.

With this preliminary injunction, HB 2550 can’t be enforced until Hernández makes a final decision.