Supreme Court Rules in favor of Merchant Free Speech

  • Merchants may soon have the right to tell customers that they will pay a surcharge if they use a credit card rather than pay with cash In New York and nine other states, merchants are barred from charging credit-card purchasers a surcharge, but are allowed to offer discounts for paying in cash. The U.S. Supreme Court on January 8th, 2017 looked at the fascinating question of whether this requirement violates the merchants’ freedom of speech.
  • The U.S. Supreme Court in January 2017 that threw out a ruling that upheld a New York law barring retailers from charging more to customers buying with credit cards, sending the case back to a lower court to decide on free speech grounds, not as price regulation. In a 8-0 decision, the justices said these laws “Regulate Speech” and may be challenged as violations of the 1st Amendment.
  • Chief Justice John G. Roberts Jr. said these laws do not prevent merchants from offering a discount for those who pay cash. Rather, they simply forbid disclosing that a posted price includes a surcharge of 2% to 3% for using a credit or debit card. “Merchants want to pass the fees along only to their customers who choose to use credit cards,” he said. “They also want to make clear that they are not
    the bad guys — that the credit card companies, not the merchants, are responsible for the higher prices.“
  • But the ruling Wednesday was only a partial victory for the five New York businesses, including a hair salon and an ice cream parlor in Brooklyn, that sued to challenge the ban on advertising or disclosing “surcharges” for using credit cards. The U.S. 2nd Circuit Court of Appeals in New York had upheld the law on the grounds it was a price regulation, not a speech restriction.
  • Roberts and the high court disagreed. “What the law does is regulate how sellers may communicate their prices,” he said. “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.’”
  • But the justices did not strike down the state laws, instead sending the case back to the New York court to decide whether this “speech regulation” could be justified. Sometimes, laws are used to regulate the words of commercial transactions to prevent buyers from being fooled or confused. Until recently, the major credit card companies had imposed contract restrictions that prevented merchants from disclosing surcharges. But those provisions have challenged and knocked down. That in turn led to new legal challenges against the state laws which forbid sellers from disclosing these surcharges.

The case decided Wednesday was Expressions Hair Design vs. Schneiderman.

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