Rosenberg: Airbnb law amounts to a first Amendment violation – Long Island Business News (subscription)

Traditionally, I avoid using this column to discuss issues that directly relate to my role as an attorney, as I find such practice self-serving and of dubious value for you, dear reader.

Yet, for every rule there is an exception, and the issue soon to be debated in a New York City court has such profound implications for businesses throughout the state that it is worth the time to examine the matter.

Simply distilled, a state law applicable only to NYC currently makes it unlawful to advertise occupancy or use of dwelling units where that occupancy would violate the Multiple Dwelling Law. This improper gag law is so broadly written that it covers literally any form of communication. If a similar statute is adopted with state wide application it would threaten literally any company or individual that seeks to contract for goods or services, whether through traditional mediums or the Internet. This was a law the state legislature granted to the city with the power to enforce, so the potential for this legislation to spread like a toxic weed throughout New York is real (although how it was enacted may be fatally flawed).

Originally designed to constrain Airbnbs widely successful business model of allowing apartment owners and tenants to briefly rent out their dwellings, the city capitulated in enforcing the law against the multibillion dollar Airbnb corporation and even stipulated in Federal Court that City Hall will permanently refrain from taking any action to enforce it against Airbnb.

What New York City forgot is that, irrespective of whether you are up against Airbnb or the lonely apartment owner or tenant, you cant violate the First Amendment. By prohibiting rental advertisements, the city imposes a content-based speech restriction subject to what the law calls heightened judicial scrutiny. It attempts to create, in essence, a legal house of mirrors that the city hopes defendants wont possibly navigate in their attempt to defend themselves.

More threatening for the rest of us who arent looking to offer short term rentals, the city law chills protected commercial speech. The threat of fines and liability would likely impose a form of self-censorship in the marketplace as the interpretation of what is permitted and what is prohibited becomes vague, blurred and problematic. If I ran a magazine, newspaper, broadcast operation or advertising agency, I would be extremely concerned about this laws draconian reach.

The city law also violates the First Amendment and the Due Process Clause of the Fourteenth Amendment because it seeks to impose strict civil and criminal liability against alleged violators. Specifically, there is no requirement in the statute that an alleged violator know that an advertisement is unlawful. Fortunately, there is precedent here. The U.S. Supreme Court has rejected such efforts to impose strict liability for the dissemination of information, even where, unlike here, the content itself lacks First Amendment protection.

Of course, the City could simply go after those who actually rent units unlawfully, rather than those that merely advertise such rentals, but they seem to have decided there is far easier to pick up a lot of money by just spotting the ads than by actually knocking on the doors of alleged violators to see if a violation has in fact occurred. In fact, the city has recently allocated several million dollars to fund inspectors whose task is to identify and fine apartment owners and tenants who post illegal listings. It is a fair bet they expect to make back that investment quickly by tabulating illegal ads and then sending notices costing $1,000 per first violation, $5,000 per second violation and $7500 per third violation gotcha.

Prohibition taught America that flawed laws and ill-conceived enforcement breeds nothing but contempt for government, for trying to make criminals out of all of us. The City of New York, and by extension the New York State Legislature, would better serve the public if they would promptly review their illegal assault on freedom of commercial speech and strike this improper unconstitutional statute from the books before the courts do it for them.

Rosenberg, a graduate of St. Johns University Law School and resident of Old Westbury, is senior founding with Rosenberg, Calica & Birney LLP, a Garden City law firm.

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Rosenberg: Airbnb law amounts to a first Amendment violation - Long Island Business News (subscription)