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Expressions Hair Design v. Schneiderman

Supreme Court of the United States · 2017 · Constitutional Law

Constitutional LawFirst AmendmentCommercial Speechcredit-card surchargecash discountprice communicationcommercial speechspeech versus conduct

Facts

Merchants who accept credit cards must pay transaction fees to card issuers, and the petitioners wanted to pass those fees on only to customers using credit cards. They sought to use a single-sticker pricing practice that posted a cash price and then stated an additional surcharge for credit-card users, such as "$10, plus $0.30 for credit" or "$10 with a 3% surcharge if you pay by credit card." New York General Business Law § 518 provides that no seller may impose a surcharge on a customer who elects to use a credit card instead of cash, check, or similar means. Before the Supreme Court, the merchants limited their challenge to an as-applied challenge to that specific pricing practice.

Issue

Whether New York's § 518, as applied to merchants who post a single cash price and state an additional credit-card surcharge, regulates speech rather than merely conduct, and if so whether the statute is unconstitutional under the First Amendment. Also, whether the statute is unconstitutionally vague as applied to that pricing practice.

Rule

A statute is not a mere price regulation when it does not control the amount a merchant may collect but instead controls how the merchant may communicate prices. When a law regulates the communication of prices rather than prices themselves, it regulates speech. A plaintiff whose intended speech is clearly proscribed cannot succeed on an as-applied vagueness challenge.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A Seattle bookstore may charge any amount it wants to cash customers and any different amount it wants to credit-card customers. A state statute forbids displaying a sign that reads "$25, plus 2% for credit," but permits a sign that reads "$25.50 credit, $25 cash."

Under the Supreme Court's majority reasoning, the strongest characterization of the statute is that it regulates:

Explanation. The majority distinguished ordinary price regulation from regulation of price communication. If merchants remain free to charge different amounts but cannot express the difference as a single listed price plus a credit-card surcharge, the law regulates speech by dictating how prices may be conveyed, not the amount collected.