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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There are innumerable strategies that Hotel Sales and Marketing Directors employ to find, engage and entice guests to their property, and those strategies are constantly evolving. A breakthrough technology, pioneering platform, or even a simple algorithm update can cause new trends to emerge and upend the best laid plans. Sales and marketing departments must remain agile so they can adapt to the ever changing digital landscape. As an example, the popularity of virtual reality is on the rise, as 360 interactive technologies become more mainstream. Chatbots and artificial intelligence are also poised to become the next big things, as they take guest personalization to a whole new level. But one sales and marketing trend that is currently resulting in major benefits for hotels is experiential marketing - the effort to deliver an experience to potential guests. Mainly this is accomplished through the creative use of video and images, and by utilizing what has become known as User Generated Content. By sharing actual personal content (videos and pictures) from satisfied guests who have experienced the delights of a property, prospective guests can more easily imagine themselves having the same experience. Similarly, Hotel Generated Content is equally important. Hotels are more than beds and effective video presentations can tell a compelling story - a story about what makes the hotel appealing and unique. A video walk-through of rooms is essential, as are video tours in different areas of a hotel. The goal is to highlight what makes the property exceptional, but also to show real people having real fun - an experience that prospective guests can have too. The June Hotel Business Review will report on some of these issues and strategies, and examine how some sales and marketing professionals are integrating them into their operations.