The Business of Freedom of Speech
A few weeks ago I was at a networking event and an attendee posed the question “is it a violation of my customers’ first amendment rights if I put a clause in my contract with customers that prohibits them from leaving negative reviews about my business?”
The answer is no, it is not a violation (but I recommend against it nevertheless and I will explain why below). Let us first read the First Amendment together:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Note that the clause states that “Congress shall make no law…” Simply, the first amendment only applies to the government and not private entities, unless the private entity is acting on behalf of the government. As a caveat there may be non-constitutional legal considerations in determining whether such a clause is enforceable but from a first amendment perspective, such a clause is not a violation.
With that said, however, I do not recommend this from a business perspective. If word gets out that your business actually prevents their customers from leaving bad reviews, potential customers will begin to not trust your brand and view any positive reputation as inauthentic because now customers know that they are not allowed to leave negative reviews. Rather, the best way to mitigate bad reviews is to get feedback from customers (directly or indirectly) and reach out to them personally to find ways to meet their needs or remedy any problems. If disgruntled customers still do not respond to this approach and still leave a negative review, simply leave a response to their negative review on the platform they chose and this typically mitigates the effects of the negative review.
Another business consideration regarding the freedom of speech if, if you are an employer, you can actually legally limit your employees from certain speech, as long as such speech does not limit your employee’s rights to discuss labor, employment, and salary issues. Many employers like to prohibit employees from discussing political topics so as to keep an inclusive and peaceful environment and that is perfectly acceptable, bust just be cognizant that there is a fine line between prohibiting political speech and prohibiting political speech related to employment, labor, and salary and not let political speech prohibitions violate your employee’s rights to discuss political topics that involve their rights as employees.
All in all, businesses do not need to be too concerned with first amendment rights, but knowing the above information will give businesses and employees the confidence to formulate rules as they see necessary to have a business that runs smoothly.