Volokh Conspiracy Marketing Genius Award goes to the Union Street Guest House hotel (Hudson, New York)

Thanks to the archived page on archive.org (page saved today), we see the following policy:

Please know that despite the fact that wedding couples love Hudson and our Inn, your friends and families may not. This is due to the fact that your guests may not understand what we offer – therefore we expect you to explain that to them. USGH & Hudson are historic. The buildings here are old (but restored). Our bathrooms and kitchens are designed to look old in an artistic “vintage” way. Our furniture is mostly hip, period furniture that you would see in many design magazines. (although comfortable and functional – obviously all beds are brand new) If your guests are looking for a Marriott type hotel they may not like it here.

Therefore: If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event If you stay here to attend a wedding anywhere in the area and leave us a negative review on any internet site you agree to a $500. fine for each negative review. (Please NOTE we will not charge this fee &/or will refund this fee once the review is taken down). Also, please note that we only request this of wedding parties and for the reasons explained above.

Yeah, that’s the way to avoid negative reviews, and to get publicity from outlets such as NYPost.com (though not exactly good publicity).

As a purely legal matter, such contractual provisions not to speak might be enforceable, at least if they are clearly noted to the other party when the contract is entered into; such “non-disparagement” provisions are not uncommon, though even when clearly flagged for the parties they may still (in some circumstances) be unenforceably vague. Nor is there a First Amendment problem here; free speech rights may be waived by contract (see Cohen v. Cowles Media (1991)). The main problem with the provision isn’t a legal problem; it’s a business problem, and a doozy of a problem at that.

Thanks to Prof. Adam Scales for the pointer.

UPDATE: According to CNBC, the hotel now says it was only joking. “‘The policy regarding wedding fines was put on our site as a tongue-in-cheek response to a wedding many years ago. It was meant to be taken down long ago and certainly was never enforced,’ the Union Street Guest House said in an email to CNBC.” At the same time, as Esquire notes, a comment posted Nov. 21, 2013 — well before this controversy erupted — states,

The management of this hotel had the gall to email us twice to threaten us financially about the negative review! Here is an excerpt from their first email:

“please note that your recent on-line review of our Inn will cost the wedding party that left us a deposit $500. This money be charged via the deposit they have left us unless/until it is removed. Any other or future reviews will also be charged to the wedding party (bride & groom) from the guarantee they have provided us. ”

Disgusting! Instead of taking responsibility and striving to improve their customer service, they instead resort to intimidation!

Now perhaps the Nov. 21, 2013 comment is a fabrication, and the policy was a joke all along — or perhaps not. In any event, I thought I’d note this, and thank commenters Retitled and Joseph Bottum for passing it along.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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