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MoFo Reenforcement The Enforcement Blog

Supreme Court “Expresses” Unanimous View That Credit Card Disclosure Rules Regulate Speech

Posted in Credit Cards, State Regulators

On March 29, 2017, the U.S. Supreme Court held that a New York law restricting the way merchants may communicate prices to their customers regulates speech and, thus, is subject to review under the First Amendment. Specifically, the Court held that New York General Business Law § 518 (“Section 518”) should not be viewed as regulating prices, which is permissible regulation of conduct, because Section 518 does not require merchants to sell products or services at any particular price. Rather, the Court held that Section 518 places restrictions on the manner in which merchants may communicate prices to customers, which amounts to regulation of speech. The unanimous decision, penned by Chief Justice Roberts, overturned the ruling by the Court of Appeals for the Second Circuit in Expressions Hair Design v. Schneiderman and remanded the case for the Second Circuit to decide whether the law violates the First Amendment. Following the decision, questions remain about the meaning of Section 518 and the standard for determining the permissibility of speech regulation under the First Amendment.

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