Supreme Court Review 2017/2018 TERM
SATURDAY, NOVEMBER 25, 2017
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Issue:  Free Speech; Economic Conduct

Expressions Hair Design v. Schneiderman

15-1391

QUESTION(S) PRESENTED

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 (as the Eleventh Circuit has held), or do they regulate economic conduct (as the Second and Fifth Circuits have held)?

DECISION

Decided March 29, 2017 HOLDING

This Court’s review is limited to whether §518 is unconstitutional as applied to the particular pricing scheme that, before this Court, petitioners have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge. Section 518 prohibits the pricing regime petitioners wish to employ. Section 518 regulates speech. Section 518 is not vague as applied to petitioners.

Agree image Justice Kagan
Agree Kagan
Agree w/ Soto image Justice Alito
Agree w/ Soto Alito
Agree image Justice Ginsburg
Agree Ginsburg
Agree image Justice Kennedy
Agree Kennedy
Author image Chief Justice Roberts
Author Roberts
Agree image Justice Thomas
Agree Thomas
Concur Author image Justice Breyer
Concur Author Breyer
Concur Author image Justice Sotomayor
Concur Author Sotomayor
Recused image Justice Gorsuch
Recused Gorsuch

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, GINSBURG, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.

Text of Opinion
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ORAL ARGUMENT

Argued January 10, 2017

Appearences
On Behalf of Petitioners Expressions Hair Design, et al.
Deepak Gupta, Washington, D. C.
On Behalf of United States as Amicus Curiae supporting Petitioners
Eric J. Feigin, Assist­ ant to the Solicitor General, Department of Justice, Wash­ ington, D. C.
On Behalf of Respondents Eric T. Schneiderman, Attorney General of New York, et al.
Stephen C. Wu, Deputy Solicitor General, New York, N. Y.
Transcript
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Audio
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Merit Briefs
Brief for Respondents (pdf download)
Reply Brief for Petitioners (pdf download)
Amicus Curiae Briefs
Brief for Ahold USA, Inc, Albertsons LLC, HE Butt Grocery Co,Hy-Vee, Inc, The Kroger Co, Safeway Inc, Spirit Airlines, Inc, and Walgreen Co in Support of Petitioners (pdf download)
Brief for Alan S Frankel in Support of Petitioners (pdf download)
Brief for Cardx, Llc in Support of Petitioners (pdf download)
Brief for Cato Institute and Pacific Legal Foundation in Support of Petitioners (pdf download)
Brief for Consumer Action and National Association of Consumer Advocates in Support of Petitioners (pdf download)
Brief for First Amendment Scholars & First Amendment Lawyers Association in Support of Petitioners (pdf download)
Brief for Institute for Justice in Support of Petitioners (pdf download)
Brief for Professor Adam J Levitin in Support of Petitioners (pdf download)
Brief for Retail Litigation Center, Retail Council Of New York State, Florida Retail Federation, And Food Marketing Institute in Support of Petitioners (pdf download)
Brief for Scholars of Behavioral Economics in Support of Petitioners (pdf download)
Brief for The James Madison Institute, et al in Support of Petitioners (pdf download)
Brief for United States Public Interest Research Group Education Fund, Inc in Support of Petitioners (pdf download)
Brief for Action on Smoking and Health, et al in Support of Respondents (pdf download)
Brief for Constitutional, Administrative, Contracts, and Health Law Scholars in Support of Respondents (pdf download)
Brief for First Amendment Scholars in Support of Respondents (pdf download)
Brief for Florida, Nine Other States, and the District of Columbia in Support of Respondents (pdf download)
Brief for International Center for Law & Economics and Scholars of Law and Economics in Support of Respondents (pdf download)
Brief for Labor, Environmental, And Civil Rights Organizations in Support of Respondents (pdf download)
Brief for National Governors Association, et al in Support of Respondents (pdf download)
Brief for New York Credit Union Association in Support of Respondents (pdf download)
Brief for Public Citizen, Inc, Consumers Union, National Consumer Law Center, and the Campaign for Tobacco-Free Kids in Support of Respondents (pdf download)
Brief for the Credit Union National Association in Support of Respondents (pdf download)
Brief For The United States in Support of Neither Party (pdf download)

PROCEEDING BELOW

United States Court of Appeals for the Second Circuit
Decided September 29, 2015
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