Second Circuit - First Amendment: Real Estate Board of New York Inc. v. The City of New York

Daily Record Staff//July 22, 2026//

United States Court of Appeals for the Second Circuit

First Amendment — Commercial speech — Regulating broker fees

Real Estate Board of New York Inc. v. The City of New York

25-1506

Judges Parker, Livingston, and Kahn

Background: The city of New York passed the Fairness in Apartment Rental Expenses Act which prohibited brokers from imposing fees on tenants with respect to properties for which the broker has either published a listing with the landlord’s permission or agreed to work on behalf of the landlord. The plaintiff-appellants sought a preliminary injunction to enjoin the law from going into effect on the grounds that the law violated both the United States and New York constitutions.

Ruling: The Second Circuit affirmed. The court held that the FARE Act regulates commercial speech, advances a substantial interest in addressing market failures and the harms that brokers’ fees cause on the rental market.

Sean Marotta, of Hogan Lovells, for the plaintiff-appellants; Jamison Davies, corporation counsel, for the defendants-appellees.

Oral argument audio