Yesterday, the U.S. Supreme Court held that New York State’s law preventing merchants from charging an additional fee for using a credit card (see our previous coverage here) regulates speech, and remanded the case to the Second Circuit to determine whether the law can survive First Amendment scrutiny.  Judge Rakoff had initially ruled in favor of the merchants, but the Second Circuit found that the law was permissible as it only regulated the relationship between the two prices rather than speech.

In an opinion by Chief Justice Roberts, the Court found otherwise:
Continue Reading SCOTUS: NY Credit Card Surcharge Law Regulates Speech

The Second Circuit this morning upheld New York State’s ban on credit card “surcharges.” Judge Rakoff had earlier found (see our coverage here) that the law, § 518 of the General Business Law, likely violated the First Amendment because it imposed criminal penalties for calling extra credit card fees “surcharges” but allowed merchants to offer the equivalent price via a “discount.”  The plaintiffs argued that the term “surcharge” was a more effective way to discourage credit card use by conveying the real costs they impose on businesses and customers.

The Second Circuit rejected this argument because it construed the law as applying  to conduct — charging more than the sticker price — not to labels:
Continue Reading Second Circuit Upholds New York’s Credit Card Surcharge Ban

A group of merchants sued the New York Attorney General last month to enjoin a law they claimed prohibited them from using the label “surcharge” to describe additional fees for credit card purchases (see our prior post).  The Attorney General Friday moved to dismiss, and argued that the merchants had misinterpreted the law:
Continue Reading NYAG Defends Credit Card “Surcharge” Law, Claims It Applies Only When Surcharge is Hidden

Yesterday, a group of merchants moved, on First Amendment Grounds, to enjoin a New York law that allows merchants to charge different prices for cash and credit card purchases, but prohibits them from calling the extra charge for credit card purchases a “surcharge”: The motion begins:
Continue Reading Merchants Move to Enjoin New York Law Against Describing Extra Charges to Credit Card Customers As “Surcharges”