New York Law Prohibiting Surcharges for Credit-Card Users Might Violate the First Amendment

So this was not a full-blown First Amendment case, but it involved an important question that courts sometimes have to answer in First Amendment cases: is the government regulating speech or conduct? (Generally speaking, speech is protected by the First Amendment and conduct is not.) Expressions Hair Design is a company that specializes in…well you can guess. It challenged a New York state law that prohibited merchants from imposing surcharges for using a credit cards. That law required that a merchant’s “sticker price” be equal to the price charged to customers paying with a credit card. Although the Second Circuit Court of Appeals found that the New York law was simply “price regulation,” and therefore conduct and not speech, the Supreme Court found that the law regulated speech—that is, it regulated how sellers communicate their prices, not the amount they are allowed to charge. The Second Circuit had not decided whether the New York law violates the First Amendment, so the Supreme Court sent the case back down for the Second Circuit to take a crack at it.

Case: Expressions Hair Design v. Schneiderman, No. 15-1391 (U.S. Mar. 29, 2017) (opinion here)

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