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Audio Transcription for Oral Argument - January 10, 2017 in Expressions Hair Design v. Schneiderman

Elena Kagan:

I mean, here's the narrow way in which this seems to affect communication, speech. I'm a seller.

I set my prices.

I say I want to charge cash customers a dollar and I want to charge credit card customers $1.05.

All right? Now, if I put my list price as $1.05 and then the cash customers get a happy surprise, that seems fine.

But if I put my list price as a dollar and then the credit card companies get a not-so-happy surprise, that can't be done.

So it does affect the way a seller communicates which price he's going to say is the regular price, is the list price. So why isn't that a speech regulation? Now, you might say, as the solicitor general does, it is a speech regulation, but it's only a disclosure regulation and subject to a lower standard.

But you're saying it's not a speech regulation at all.

And I want to know why, given that it is affecting which price you choose to say is your list price.

Steven C. Wu:

So even if it does affect what a seller does in that case, it's only because the list price is being used as evidence to support whether an imposition -- whether a surcharge has been imposed later.

And it's perfectly permissible under the First Amendment for conduct to be defined in relation to previous acts of speech.

You know, conduct can be initiated evidence or carried out through speech and the First Amendment doesn't bar a State from regulating it in that way. And I'll just use a couple of examples that I think make this clear.

Under a statute that says the seller shall adhere to a previously advertised price, that regulation, which the United States says is an economic regulation, would be susceptible to the same analysis.

If somebody wants to charge $100, they know that what they have to do is list $100 in their advertisements or in their stores.

They can't list $98 or $95 or $90. And a similar example comes from this Court's decision in Rumsfeld v. Fare, which recognized that part of determining whether law schools had improperly excluded military recruiters from campus might be looking at the contents of emails or notices or other evidence of the underlying conduct of exclusion. And that's the only way that a seller's prices are being used here.

It's being used as the benchmark to determine whether the seller has engaged in the unlawful conduct of increasing a previously disclosed price. Now, why this is clear under the statute, getting back to Justice Sotomayor's question, is in part because of the posture of this case.

We have a set of Petitioners here who are bringing, as their counsel has acknowledged, an as-applied challenge.

And if you look at the conduct that they want to engage in here, there is no ambiguity about what they think is the baseline or regular price.

All of them want to --

Anthony M. Kennedy:

But suppose that a business makes a point of its reputation is -- is meeting all prices.

We meet prices.

And there is a business that's very close to another State and the other State allows cash, has -- has an option where all surcharges are permitted and surcharges are -- are disclosed.

Then the State -- the seller in this State says, you know, we will charge the lowest price, we will meet the price, but we add 3 cents for credit cards. And because that's difficult to enforce, all of our prices are increased by 3 percent for everybody because of the difficulty of applying surcharges in some cases. Is that valid?

Steven C. Wu:

I think it probably would be deemed to be a credit card surcharge in that case.

Obviously, no court has addressed that specific question.

It's not presented by any of the Petitioners here.

And I don't mean to be evasive about it.

I think that's an important point because in an as-applied challenge, the relevant question is whether the statute can be applied to what the Petitioners want to do.

And none of them want to engage in these complicated pricing schemes. All of them say --

Anthony M. Kennedy:

The question of Justice Breyer says that -- that this is so complicated, doesn't that indicate the statute is vague?

Steven C. Wu:

It -- it does not, because under the vagueness doctrine under the Due Process Clause, as long as there are a core set of cases that people can understand, that's enough to sustain it.