The U.S. Supreme Court has agreed to review a Second Circuit case Expressions Hair Design v. Schneiderman contesting on First Amendment grounds a New York law that prevents surcharges for customers using credit cards but allows discounts for those paying cash. The Second Circuit ruled that the law regulated commerce, not speech. (BallotPedia, October 6, 2016)
In announcing its amicus brief on behalf of the merchants, the Cato Institute wrote, “The law does this [shields credit card companies from consumers’ knowing who is causing higher prices when using credit cards] not by restricting the merchants’ ability to charge different prices as between cash and credit payments—that’s legal everywhere—but by regulating the communications regarding the different prices. To put it simply: the law allows merchants to offer “discounts” to cash-paying customers, but makes it a crime to impose economically equivalent “surcharges” on those who use plastic. By mandating how these merchants convey their pricing structure, New York is restricting speech on the basis of its content, which would seem to be an obvious First Amendment violation.” (Cato Institute, June 15, 2016, by Ilya Shapiro and Frank Garrison)