The Volokh Conspiracy - Zillow and the First Amendment:

The Arizona Board of Appraisal is 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 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.

	[Eugene Volokh, April 30, 2007 at 4:36pm] Trackbacks Zillow and the First Amendment: The Arizona Board of Appraisal is 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 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.