Expressions Hair Design v. Schneiderman (15-1391)
argument 15-1391Expressions Hair Design v. Schneiderman
Supreme Court of the United States
1h 3m
5 speakers
8 chapters
transcribed 7 days ago
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What is the core First Amendment issue in Expressions Hair Design v. Schneiderman?
We'll hear argument first this morning in Case 15-1391, Expressions Hair
Design v. Schneiderman. Mr. Gupta. Mr. Chief Justice, and may it please the Court. This case is about whether the State may criminalize truthful speech that merchants believe is their most effective way of communicating the hidden cost of credit cards to their customers. By design, New York's law suppresses the message that
you're paying more. Your two groups of of petitioners. One wants to just give a cash price without any information about the surcharge, and the other, I thought, wanted to give two separate prices. So everybody doesn't want to give truthful information about the surcharge.
MR. No, no, they do, Your Honor. They all want to do the same thing. I think what you are referring to is that some of them are doing different things now. One of the petitioners, Expressions Hair Design, is engaging in dual pricing. They're charging two different prices, one for cash, one for credit, but they're trying as hard as they can to describe that as a discount so that they comply with the law. The other petitioners right now are refraining from dual pricing altogether because they don't want to run the risk of failing to comply with this regime. But if we win this case, all of the petitioners would like to charge two different prices for cash or for credit, and they would like to be able to characterize the price difference in
as a surcharge for using a credit
card. That's not quite what I understood, but your adversary can tell me.
Mr. Gupta, what speech precisely do you think is being restricted?
The message that when you use a credit card, you're paying more. And to be more precise, I think if you look at Joint Appendix 103 through 104, you'll find there the Supplemental Declaration of Expressions Hair Design, where they say exactly what they'd like to do. And if you look at the yellow brief, It's page one of the yellow brief. We have a chart. And what we'd like to do, ideally, is describe the pastrami sandwich as $10 and then tell you that it's going to cost a certain percentage more, 2%
more, to pay with a credit card. Well, I guess that's why I said, like, what's speech precisely? And you said the message that you're going to pay more if you use a credit card. Right. But, you know, this statute is not written in terms of speech. It's written in terms of imposing a surcharge. And let's say that somebody – let's say that there is a merchant, and the merchant charges – the list price for something is a dollar, and a person comes up to the cash register and offers a dollar bill, and the – cashier says, oh, no, for you it's 95 cents because I impose a surcharge for people who use credit cards, right? Now, would that violate this law?
You know, I don't know. And part of the difficulty is the reason we have a vagueness
challenge. You don't know? How would it violate the law?
I don't think it would. I don't think it would. And certainly the State hasn't taken that position.
You don't think
it would? I don't think it
would. Even though you're describing something as a surcharge? Because the reason it wouldn't violate the law is because the conduct is, you know, it fits the law, right? That essentially you're not imposing a surcharge on credit card users. Whatever you call it, however you describe it, you're not imposing a surcharge. on credit card users?
Well, I think the way this law works is that you can engage in precisely the same conduct. You can charge the two different prices, one for cash, one for credit. And what runs afoul of the law is describing the price difference one way as a surcharge versus
credit. And you know that. You said that again. And I think my hypothetical was designed to show that that's just not right. I mean, I can imagine ways in which you might say that this is restricting speech. But that's not it. Because as long as the price listed is the higher price, is the price that a credit card company has to pay. As long as that's true, you can describe it any which way you please. And you can describe it in terms of imposing a surcharge or charging credit card customers more.
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Chapters
8 chapters
1
What is the core First Amendment issue in Expressions Hair Design v. Schneiderman?
0:00–6:22
2
How does the Court define “surcharge” versus “discount” under New York law?
6:22–14:23
3
Why do the petitioners want to display dual cash and credit prices?
14:23–21:37
4
What arguments does Justice Alito make about mandated speech?
21:37–29:15
5
How does the enforcement history influence the interpretation of the statute?
29:15–37:39
6
What is the Solicitor General’s disclosure‑regime theory?
37:39–46:22
7
Why do the Justices discuss whether the statute is a price regulation or speech regulation?
46:22–54:57
8
What remedy do the parties seek and what procedural next steps are proposed?
54:57–1:03:14