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Supreme Court To Hear Free-Speech Argument Against New York’s Surcharge Ban
January 9, 2017

By Jim Daly
@DTPaymentNews

For the second time in less than two months, a major payments case is coming before the Supreme Court. On Tuesday, lawyers for merchants and the state of New York will argue before the eight justices over whether the state’s ban on credit card surcharges constitutes illegal repression of free speech.



Image Credit: U.S. Supreme Court
Exterior of the U.S. Supreme Court building..

The New York case is the centerpiece of a national legal fight over card surcharges. 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, according to a Supreme Court document. The question opposing counsel will argue Tuesday is: “Do these state no-surcharge laws unconstitutionally restrict speech conveying price information ... or do they regulate economic conduct?”

The 11th U.S. Circuit Court of Appeals in Atlanta has held that the laws do unconstitutionally restrict speech, while the Second and Fifth circuit appellate courts, in New York City and New Orleans, respectively, have held they only regulate economic conduct. The Supreme Court, which in September agreed to hear the New York case, tends to get involved when appellate courts differ on the same issue.

The Atlanta appellate case struck down Florida’s no-surcharge law while the New York and New Orleans cases upheld bans in New York State and Texas, according to Bloomberg.

A group of merchants, led by Expressions Hair Design, a salon in Vestal, N.Y., are challenging the New York law that imposes up to a year in jail or fines of up to $500 on retailers who violate it, according to Courthouse News Service. The law does permit discounts for cash. But the merchants say that they cannot clearly communicate to customers how much it costs them to accept credit cards without being subject to criminal penalties.

The merchants’ attorney, Deepak Gupta of Washington, D.C., presented in a Supreme Court brief four pricing scenarios for a hypothetical pastrami sandwich sold at a New York deli for $10 in cash and $10.20 with a credit card. A: “$10 cash price/$10.20 credit-card price.” B: “$10 cash price/$0.20 surcharge per item added to credit-card purchases.” C: “$10 cash price/2% surcharge added to credit-card purchases.” D: “$10.20 credit-card price/$0.20 discount per item off cash purchases.”

Using the first three wording options has landed some merchants in legal trouble, according to Gupta. “As a result, only Option D—which you believe by far the least effective way of highlighting the cost of credit to consumers—appears somewhat safe,” his brief says.

In arguing that the law violates the First Amendment’s guarantee of free speech and also is unconstitutionally vague, Gupta goes on to assert that “merchants were told that they could bring themselves into compliance by changing only how they communicated their prices—not the amounts of the prices themselves. Any law that makes criminal liability turn solely on words used to convey truthful, lawful prices is a regulation of speech, subject to [First Amendment] scrutiny.”

But New York Attorney General Eric T. Schneiderman says in the state’s brief that the merchants’ characterization of pricing regulation as a speech restriction is meritless.

“This prohibition on credit-card surcharging is a direct price regulation that targets conduct and thus does not implicate the First Amendment at all,” the brief says. “Price controls have long been considered direct economic regulations that do not target speech because they regulate what sellers can do when collecting money from customers.”

The Supreme Court could render a decision the case by late June.

In a case involving ATM surcharges, the Supreme Court in late November dismissed appeals by Visa Inc. and Mastercard Inc. and cleared the way for independent ATM deployers to go to trial on their antitrust challenges to the networks’ surcharging rules. The deployers say the rules prevent them from charging less for access to PIN-debit networks than to the Visa or Mastercard networks.


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