Expressions Hair Design v. Schneiderman Page 19

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

Sonia Sotomayor:

The scheme does nothing to help that situation.

Steven C. Wu:

If I could answer just this question.

John G. Roberts, Jr.:

Sure.

Steven C. Wu:

That's correct, but I think this supports our point.

The scheme does not affect anything that sellers may say about their credit card costs.

The very narrow thing that it does is to put an imposition of a surcharge in the consumer transaction, and that's what's the classic economic conduct regulation.

John G. Roberts, Jr.:

Thank you, Counsel. Mr. Gupta, a minute.

Deepak Gupta:

Thank you, Mr. Chief Justice. The solicitor general agrees with us that this is a restriction of speech, but posits that the only thing that's left on the table is a disclosure rationale that New York abandoned in the courts below and is barely pressing here, and the problem with that is that this is a criminal speech restriction.

And so if your merchant is faced with compliance, they've got to know, if -- if you think this is a disclosure regime, what are we supposed to say? And typically a disclosure regime doesn't leave you in the dark about what you have to say.

The government tells you precisely what to say. And Zauderer recognized this problem.

It said that there are serious constitutional problems if you have a disclosure regime that does not tell the merchant precisely what to say. Zauderer isn't a free pass.

The government has hypothesized a regime that could exist, but if it did exist, it would still be subject to some First Amendment scrutiny.

And you would have to ask of that regime the question that Chief Justice Roberts asked, which is, do we think people are too dumb to do math and why in this one context do we think that? Could it be that it had something to do with suppressing the cost of credit cards. Thank you.

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.