Expressions Hair Design, Petitioners v. Eric T. Schneiderman

Summary

The Court held that New York's credit-card surcharge prohibition regulates speech, rather than merely prices, as applied to merchants wishing to post a cash price and an additional credit-card surcharge. It accepted the Second Circuit's interpretation that the statute prohibits that pricing display, rejected the merchants' as-applied vagueness challenge, and vacated and remanded for consideration of whether the speech restriction survives First Amendment scrutiny. Breyer concurred in the judgment, favoring analysis of the First Amendment interests affected rather than a speech–conduct distinction and suggesting certification to clarify the statute. Sotomayor, joined by Alito, concurred in the judgment but would have directed certification to the New York Court of Appeals before resolving the constitutional questions.