Are Guests Entitled to 'Free Speech' on Hotel Property?

By Andrew Glincher Office Managing Partner, Nixon Peabody LLP | October 28, 2008

With the international political climate being what it is, this incident has some interesting implications for hotels as well, particularly since by their nature, they play host to diverse visitors from every country in the world.

What should a hotel manager do, for example, if an individual wearing an objectionable anti-war tee shirt appears in the lobby of the hotel? What if it's a group of people with tee shirts? What if they are carrying signs? What if they are legitimate hotel guests, who have reserved and paid for rooms? Can you ask them to leave the lobby, or the restaurant, or other "public" areas of the hotel? Does it make a difference if the person is simply wearing a tee shirt, but doing so quietly, as opposed to handing out flyers or circulating a petition?

Questions like these have been argued before the U.S. Supreme Court and State courts for years. There have been a number of Supreme Court decisions that make it clear that government cannot suppress free speech - or "symbolic speech," like wearing a tee shirt or uniform or armband, regardless of the message, even if the message advocates violence. It can restrict disruptive behavior, such as blocking traffic, engaging in disorderly conduct or creating excessive noise, but it can only suppress speech if it is intended, and is likely to produce, "imminent lawless action."

The issue is different for private property, however. The mall operators in New York State were probably within their legal rights to ask the customer to leave - as a hotel manager would be in the same situation. In the case of private property, the U.S. Supreme Court has left the issue up to the discretion of the States, saying that there is no protection in the U.S. Constitution for public speech inside someone else's private property.

"The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality," the Supreme Court decision said. "That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere..."

In other words, anyone can stand on a soapbox on a street corner and express any view he wants. But the U.S. Constitution does not allow that person to put his soapbox on private property.

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