The Supreme Court today issued its decision in Expressions Hair Design v. Schneiderman.
The cert petition posed the question in the case this way:
Ten states have enacted laws that allow merchants to charge higher prices to consumers who pay with a credit card instead of cash, but require the merchant to communicate that price difference as a cash “discount” and not as a credit-card “surcharge.” The question presented is: Do these state no-surcharge laws unconstitutionally restrict speech conveying price information, or do they regulate economic conduct?
On the speech-conduct question, in an opinion by Chief Justice Roberts, the Court ruled in favor of the merchants, holding that New York's no-surcharge law regulates speech. The Court then remanded the case to the Second Circuit for determinations on whether the speech regulation is "a valid commercial speech regulation under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980), and whether the law can be upheld as a valid disclosure requirement under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985)." The Court also rejected the merchants' vagueness challenge to the New York law.
What I found most interesting about Chief Justice Roberts' opinion is how economically he rejected the Second Circuit's it's-conduct-not-speech holding. After briefly setting out the law's speech-conduct distinction, the Chief Justice says this:
The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10, with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
That's a no-muss, no-fuss analysis if ever there was one.
