2017-03-29forbes.com

A New York law prohibiting merchants from charging extra for credit card transactions might violate the constitutional protection for free speech, the U.S. Supreme Court ruled today, in a unanimous decision that raised questions about the First Amendment implications of economic regulations.

The decision in Expressions Hair Design v. Schneiderman further strengthens the once-controversial Supreme Court doctrine extending First Amendment protection to corporate, as opposed to individual speech. It wasn't a total victory for retailers, who still must convince the Second Circuit Court of Appeals that the New York law is unconstitutional. But the Supreme Court rejected the Second Circuit's reasoning that the anti-surcharge law doesn't even implicate the Constitution because it regulates conduct, not speech.

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"They ... want to make clear that they are not the bad guys--that the credit card companies, not the merchants, are responsible for the higher prices," Roberts wrote. "The merchants believe that surcharges for credit are more effective than discounts for cash in accomplishing these goals."



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