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

Stephen G. Breyer:

Very well, you can't.

Deepak Gupta:

Right.

Stephen G. Breyer:

And you want to.

What's that got to do with speech? I grant you, all business activity takes place through speech.

Deepak Gupta:

Right.

Stephen G. Breyer:

So explain to me what it's got to do with speech.

Deepak Gupta:

And I agree, if you look at this statute, it doesn't scream First Amendment probably --

Stephen G. Breyer:

Not only doesn't it scream it, I want to know --

Deepak Gupta:

Right.

Stephen G. Breyer:

Unless you want to say whenever a businessman is regulated in what he can do, or she --

Deepak Gupta:

Mm-hmm.

Right.

Stephen G. Breyer:

-- that violates the First Amendment or at least potentially because they do it through speech.

Deepak Gupta:

Right.

But this is a regime that says you are allowed to call it a surcharge, you just can't call it a discount.

And the enforcement --

Stephen G. Breyer:

I don't see that in the statute.

My statute that I'm reading says you can't charge a surcharge.

Deepak Gupta:

Well --

Stephen G. Breyer:

But you can charge a discount. Now, I know, Paul MacAvoy, I hate to bring up these long-gone names, but he was an economist with whom I wrote a book.

And he would have said what you said, that, well, a discount and a surcharge are the same thing economically.

Deepak Gupta:

Right.

Stephen G. Breyer:

But we live in a world that not everybody is an economist, and many people think it's quite a different thing, and there are a lot of studies in this thing that the -- you know, that said it was a different thing.

That's what they can't do.

Deepak Gupta:

Certainly -- right.

Certainly consumers react to the way price information is communicated --

Stephen G. Breyer:

Not in the way -- you have the regular price.

If you go above the regular price, it's a surcharge.

If you go below the regular price, it's a discount.

Deepak Gupta:

But in this case, both sides agree the way the regular price is -- is defined is in relation to how you communicate that.