This article examines First Amendment speech concerns and related issues of statutory construction raised by anti-surcharge statutes that prohibit merchants from imposing "surcharges" on credit card purchases, but allow them to offer "discounts" to cash-paying customers. The article uses the split of authority created by the November 2015 opinion of the U.S. Court of Appeals for the Eleventh Circuit in Dana's Railroad Supply v. Florida and the September 2015 decision by the Second Circuit in Expressions Hair Design v. Schneiderman as a timely springboard for analyzing these issues. In September 2016, the U.S. Supreme Court agreed to hear Expressions Hair Design and oral argument occurred in January 2017. These cases not only test the fundamental dichotomy in First Amendment jurisprudence between speech and conduct, but also the extent to which courts should provide narrowing constructions to rescue otherwise unconstitutional statutes. Furthermore, the article argues that no-surcharge laws detrimentally affect not only the right of merchants to speak, but also the unenumerated First Amendment right of consumers to receive speech directly affecting their pocketbooks. Finally, the article concludes that no-surcharge laws smack of the worst kind of governmental paternalism--a protection of credit card companies' corporate interests at the expense of consumers.
Clay Calvert, Rich Shumate, Stephanie A. McNeff & Stephenson Waters, Speech v. Conduct, Surcharges v. Discounts: Testing the Limits of the First Amendment and Statutory Construction in the Growing Credit Card Quagmire, 20 N.Y.U. J. Legis. & Pub. Pol'y 149 (2017)