Expressions Hair Design v. Schneiderman Case Brief

Facts of the Case

In order to discourage the use of credit cards, merchants imposed a surcharge for such use. This practice was prohibite through the enactment of New York General Business Law § 518. Petitioner merchants, who were five New York businesses and their owners who wished to impose surcharges for credit card use, filed suit against defendant state officials, arguing that the law violated the First Amendment by regulating how they communicated their prices. The District Court ruled in favor of the merchants, holding that the law regulated speech, and violated the First Amendment under the Supreme Court’s commercial speech doctrine. The Court of Appeals vacated the District Court’s judgment with instructions to dismiss. The Court of Appeals concluded that in the context of single-sticker pricing—where merchants post one price and would like to charge more to customers who pay by credit card—the law required that the sticker price be the same as the price charged to credit card users. In that context, the law regulated a relationship between two prices. Relying on the Supreme Court’s precedent holding that price regulation alone regulated conduct, not speech, the Court of Appeals concluded that § 518 did not violate the First Amendment. Petitioners challenged the decision of the appellate court.


“Did the majority err in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map?Did the majority err in holding that the Mt. Healthy burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders?Regardless of the applicable legal standards, did the majority err in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016?”


“The New York General Business Law’s prohibition of credit card surcharges regulates speech and therefore implicates the First Amendment, but it is not unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. Chief Justice John G. Roberts, Jr., delivered the opinion of the 8-0 majority. The Court held that the challenged law regulated speech, and not just conduct, because the law specifically regulates the manner in which businesses may communicate their prices to consumers. Because the U.S. Court of Appeals concluded that the law did not regulate speech, it did not determine whether the law violated the First Amendment, so the case was remanded for reconsideration in light of this decision. The Court also determined that the law was not unconstitutionally vague because the law clearly prohibits certain types of speech and specifically the speech these businesses wish to use.In his opinion concurring in the judgment, Justice Stephen G. Breyer wrote that virtually all government regulation affects speech. To determine what level of scrutiny to apply, courts generally consider the extent to which the challenged regulation affects a protected First Amendment interest. In this case, because the extent to which the New York law affects a protected First Amendment interest is unclear, Justice Breyer agreed with the majority that the case should be remanded. Justice Sonia Sotomayor wrote a separate opinion concurring in the judgment in which she argued that it was not clear exactly what the New York law prohibited, and that the case could not be properly resolved until the state courts authoritatively interpreted the law. Therefore, the appellate court should have either abstained from interpreting the law or certified the question to the highest state court. Justice Samuel A. Alito, Jr., joined in the opinion concurring in the judgment.”

Case Information

Citation: 581 US (2017)
Granted: Sep 29, 2016
Argued: Jan 10, 2017
Decided: Mar 29, 2017
Case Brief: 2017