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Expressions Hair Design v. Schneiderman

A New York statute prohibits merchants from imposing surcharges on those who make purchases by credit card. A number of retailers challenged the statute, arguing that it infringes their First Amendment rights. The United States Court of Appeals for the Second Circuit ruled against the retailers, holding that the statute regulates commercial conduct relating to the pricing of goods and services, not speech. The U.S. Supreme Court granted certiorari because federal courts of appeals had reached conflicting rulings on whether similar statutes regulated speech or conduct. Public Citizen, joined by Consumers Union, the National Consumer Law Center, and the Campaign for Tobacco-Free Kids, filed an amicus brief supporting the constitutionality of the statute. The brief argued that the surcharge ban, even though questionable as a policy matter, is a regulation of prices, and that the First Amendment should not be used to subvert the longstanding principle that economic regulation is subject only to the most deferential judicial review. The brief also argued that even if the law regulates speech in some way, it should be evaluated under the less stringent standards applicable to commercial speech regulations, not to the strict scrutiny urged by some of the amici curiae supporting the plaintiffs.

On March 29, 2017, the Supreme Court issued its opinion in the case. The Court held that the surcharge ban did regulate commercial speech, and it remanded for consideration of whether it constituted a commercial-speech disclosure requirement (which could be sustained under the rational basis standard of Zauderer v. Office of Disciplinary Counsel) or a restriction on commercial speech (which would be subject to the intermediate-scrutiny test set forth in the Court’s Central Hudson decision). Neither the majority opinion nor the two concurring opinions offered any support for the assertion of the plaintiffs’ amici curiae that strict scrutiny should apply to a “content-based” commercial speech restriction.