- Associated Press - Thursday, June 9, 2016

OMAHA, Neb. (AP) - A California real estate broker’s free speech rights were not violated by state industry regulations that keep her from posting Nebraska property on real estate websites, a federal appeals court said Thursday.

Changes enacted in 2010 gave state regulators the authority to issue cease-and-desist orders against anyone who performs the duties of a real estate broker without holding a valid Nebraska license. The regulators used that authority the same year to order Leslie Rae Young, a real estate broker licensed in California, but not Nebraska, to stop advertising Nebraska properties on real estate websites. That move was upheld by a federal court judge last year.

Young appealed, arguing that she was not acting as a real estate agent but an advertiser, which is protected under the Constitution’s right to free speech. Young said in court documents that she offered advertising to homeowners who wish to sell their properties “without the use of a commission-charging Realtor.” Her clients, including those in Nebraska, were charged a flat fee of $95 for her advertising service.

But a three-judge panel of the 8th U.S. Circuit Court of Appeals agreed with a lower court that found Young was acting as broker under Nebraska law.

The appeals panel said Young did more than just publish advertisements of properties for sale by owner, entering into listing agreements with for-sale-by-owner customers and using her status as a licensed California broker to place their listings on real estate databases not otherwise available to for-sale-by-owner properties.

She also “worded those listings in a manner that told potential Nebraska buyers and their agents that the property seller was represented by a broker,” Judge James Loken wrote.

The opinion notes that under Nebraska law, Young could obtain a Nebraska nonresident broker’s license by taking a three-hour correspondence course, paying a license fee, passing a criminal background check and insurance specific to brokers.

Adam Prochaska, a Lincoln attorney who represented the state and various state officials, declined to comment on the opinion.

Anastasia Boden, an attorney with Pacific Legal Foundation in Sacramento, California, representing Young, said Thursday that she is considering appealing to the full 8th Circuit. The cost of a Nebraska nonresident broker’s license would be too great and requirements too onerous “when she contends she’s not engage in real estate brokerage,” Boden said of Young. “She is engaged purely in protected speech.”

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