2017 United States Supreme Court case
Expressions Hair Design v. Schneiderman |
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Argued January 10, 2017 Decided March 29, 2017 |
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Full case name | Expressions Hair Design, Linda Fiacco, Brooklyn Farmacy & Soda Fountain, Inc., Peter Freeman, Bunda Starr Corp., Donna Pabst, Five Points Academy, Steve Milles, Patio.com, and David Ross v. Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York; Cyrus R. Vance, Jr., in his official capacity as District Attorney of New York County; Kenneth P. Thompson, in his official capacity as District Attorney of Kings County, defendants |
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Docket no. | 15-1391 |
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Citations | 581 U.S. ___ (more) 137 S. Ct. 1144; 197 L. Ed. 2d 442 |
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Case history |
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Prior | 975 F. Supp. 2d 430 (S.D.N.Y. 2013); reversed, 808 F.3d 118 (2d Cir. 2015); cert. granted, 137 S. Ct. 30 (2016). |
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Holding |
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Price controls, when used to prevent certain communication of the price of a good with regards to a surcharge, implicate freedom of speech as protected under the First Amendment. United States Court of Appeals for the Second Circuit reversed and remanded. |
Court membership |
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- Chief Justice
- John Roberts
- Associate Justices
- Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer Samuel Alito · Sonia Sotomayor Elena Kagan |
Case opinions |
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Majority | Roberts, joined by Kennedy, Thomas, Ginsburg, Kagan |
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Concurrence | Breyer (in judgment) |
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Concurrence | Sotomayor (in judgment), joined by Alito |
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Laws applied |
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U.S. Const. amend. I, New York General Business Law §518 |
Expressions Hair Design v. Schneiderman, 581 U.S. ___ (2017), was a United States Supreme Court decision that held that price controls, when used to prohibit the communication of prices of goods with regards to a surcharge, was a regulation of speech and required an analysis of the First Amendment's protections for freedom of speech.
In a five-Justice majority, Chief Justice John Roberts, joined by Associate Justices Kennedy, Thomas, Ginsburg, and Kagan, wrote that, "In regulating the communication of prices rather than prices themselves," the law in question "regulates speech."[1]
Background
In contracting with credit card companies, retailers are typically assessed a fee whenever a credit card is used.[2] In order to compensate for these losses in revenue, merchants are given two options: either charge the customer a surcharge based on their use of credit cards, or provide a discount to customers paying with cash. In regards to the former option—charging the customer a surcharge—the New York Legislature enacted a law, §518, which banned this practice, in that, "[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means."[3] Additionally, the New York Legislature was not the only legislative body which had banned surcharges before. Congress passed a law in 1981 that banned the use of surcharges in pricing goods, but this ban expired in 1984.[4]
The Attorney General of New York, Eric Schneiderman, argued that because price controls prohibit conduct, but not speech, then there is no reasonable claim to a violation of free speech.[5] On January 10, 2017, one-hour of oral arguments were heard, where Deepak Gupta appeared for the hairdressers, an assistant to the Solicitor General of the United States appeared as an amicus curiae is support of neither party, and a deputy solicitor general of New York appeared for that state.[6]
Opinion of the Court
On March 29, 2017, the Supreme Court delivered judgment in favor of the merchants, voting unanimously to vacate and remand to the lower court.[7] Roberts authored the opinion of the Court, joined by Kennedy, Thomas, Ginsburg and Kagan.[8][9] The Court argued that, because §518 does not regulate the price that may be received by a business, as per usual price control, but rather the communication of prices, "§ 518 regulates speech."[1]
Justice Stephen Breyer issued a concurrence in the judgement, arguing that while the statute does limit speech, all human interactions limit speech as well.[10] However, Breyer argued that because the statute was effectually under state law, that it should be remanded to the Second Circuit.[11]
Justice Sonia Sotomayor, joined by Justice Alito, issued a concurrence only in the judgement. She argued that it should be left to the Second Circuit to interpret and to certify the meaning of §518, which could be done on remand. The "complexity" of the case, she argues, could have been avoided had the lower courts decided to interpret the law.[12]
References
- ^ a b Expressions Hair Design v. Schneiderman, No. 15-1391, 581 U.S. ___ (2017), slip op. at 10.
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 1.
- ^ "Credit card surcharge prohibited", 2010 New York Code, General Business, Article 29-A§518
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 2.
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 8.
- ^ "Expressions Hair Design v. Schneiderman". Oyez Project. Retrieved December 5, 2017.
- ^ Liptak, Adam (March 30, 2017). "Justices Side With Free-Speech Challenge to Credit Card Fees". The New York Times. p. B2. Retrieved December 5, 2017.
- ^ The Supreme Court, 2016 Term — Leading Cases, 131 Harv. L. Rev. 223 (2017).
- ^ Mark Chenoweth, Expressions Hair Design: Detangling the Commercial-Free-Speech Knot, 2016–2017 Cato Sup. Ct. Rev. 227 (2017).
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 1, Breyer (J.) concurring in judgement.
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 3, Breyer (J.) concurring in judgement.
- ^ Expressions Hair Design, 581 U.S. ___ (2017), slip op. at 11, Sotomayor (J.) concurring in judgement.
External links
- Text of Expressions Hair Design v. Schneiderman, 581 U.S. ___ (2017) is available from: Google Scholar Justia Oyez (oral argument audio) Supreme Court (slip opinion)
- Case page at SCOTUSblog
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Public displays and ceremonies | |
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Statutory religious exemptions | |
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Public funding | |
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Religion in public schools | |
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Private religious speech | |
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Internal church affairs | |
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Taxpayer standing | |
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Blue laws | |
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Other | |
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Unprotected speech | Incitement and sedition | |
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Libel and false speech | |
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Fighting words and the heckler's veto | |
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True threats | |
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Obscenity | - Rosen v. United States (1896)
- United States v. One Book Called Ulysses (S.D.N.Y. 1933)
- Roth v. United States (1957)
- One, Inc. v. Olesen (1958)
- Smith v. California (1959)
- Marcus v. Search Warrant (1961)
- MANual Enterprises, Inc. v. Day (1962)
- Jacobellis v. Ohio (1964)
- Quantity of Books v. Kansas (1964)
- Ginzburg v. United States (1966)
- Memoirs v. Massachusetts (1966)
- Redrup v. New York (1967)
- Ginsberg v. New York (1968)
- Stanley v. Georgia (1969)
- United States v. Thirty-seven Photographs (1971)
- Kois v. Wisconsin (1972)
- Miller v. California (1973)
- Paris Adult Theatre I v. Slaton (1973)
- United States v. 12 200-ft. Reels of Film (1973)
- Jenkins v. Georgia (1974)
- Southeastern Promotions, Ltd. v. Conrad (1975)
- Erznoznik v. City of Jacksonville (1975)
- Young v. American Mini Theatres, Inc. (1976)
- Vance v. Universal Amusement Co., Inc. (1980)
- American Booksellers Ass'n, Inc. v. Hudnut (7th Cir. 1985)
- People v. Freeman (Cal. 1988)
- United States v. X-Citement Video, Inc. (1994)
- Reno v. ACLU (1997)
- United States v. Playboy Entertainment Group, Inc. (2000)
- City of Los Angeles v. Alameda Books, Inc. (2002)
- Ashcroft v. ACLU I (2002)
- United States v. American Library Ass'n (2003)
- Ashcroft v. ACLU II (2004)
- Nitke v. Gonzales (S.D.N.Y. 2005)
- United States v. Williams (2008)
- American Booksellers Foundation for Free Expression v. Strickland (6th Cir. 2009)
- United States v. Kilbride (9th Cir. 2009)
- United States v. Stevens (2010)
- Brown v. Entertainment Merchants Ass'n (2011)
- FCC v. Fox Television Stations, Inc. (2012)
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Speech integral to criminal conduct | |
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Strict scrutiny | |
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Vagueness | |
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Symbolic speech versus conduct | |
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Content-based restrictions | |
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Content-neutral restrictions | |
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Compelled speech | |
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Compelled subsidy of others' speech | |
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Government grants and subsidies | |
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Government as speaker | |
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Loyalty oaths | |
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School speech | |
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Public employees | |
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Hatch Act and similar laws | |
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Licensing and restriction of speech | |
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Commercial speech | - Valentine v. Chrestensen (1942)
- Rowan v. U.S. Post Office Dept. (1970)
- Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
- Lehman v. Shaker Heights (1974)
- Goldfarb v. Virginia State Bar (1975)
- Bigelow v. Virginia (1975)
- Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
- Linmark Assoc., Inc. v. Township of Willingboro (1977)
- Carey v. Population Services International (1977)
- Bates v. State Bar of Arizona (1977)
- In re Primus (1978)
- Ohralik v. Ohio State Bar Association (1978)
- Friedman v. Rogers (1979)
- Consol. Edison Co. v. Public Serv. Comm'n (1980)
- Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
- Metromedia, Inc. v. San Diego (1981)
- In re R.M.J. (1982)
- Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
- Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
- Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
- Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
- San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
- Shapero v. Kentucky Bar Association (1988)
- Riley v. Nat'l Fed'n of the Blind (1988)
- State University of New York v. Fox (1989)
- Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990)
- City of Cincinnati v. Discovery Network (1993)
- Edenfield v. Fane (1993)
- United States v. Edge Broadcasting Co. (1993)
- Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994)
- Lebron v. National Railroad Passenger Corp. (1995)
- Rubin v. Coors Brewing Co. (1995)
- Florida Bar v. Went For It, Inc. (1995)
- 44 Liquormart, Inc. v. Rhode Island (1996)
- Glickman v. Wileman Brothers & Elliot, Inc. (1997)
- Greater New Orleans Broadcasting Assn., Inc. v. United States (1999)
- Los Angeles Police Department v. United Reporting Publishing Co. (1999)
- United States v. United Foods Inc. (2001)
- Lorillard Tobacco Co. v. Reilly (2001)
- Thompson v. Western States Medical Center (2002)
- Nike, Inc. v. Kasky (2003)
- Johanns v. Livestock Marketing Ass'n (2005)
- Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007)
- Milavetz, Gallop & Milavetz, P.A. v. United States (2010)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (2010)
- Sorrell v. IMS Health Inc. (2011)
- Expressions Hair Design v. Schneiderman (2017)
- Matal v. Tam (2017)
- Iancu v. Brunetti (2019)
- Barr v. American Association of Political Consultants (2020)
- Vidal v. Elster (2024)
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Campaign finance and political speech | |
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Anonymous speech | |
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State action | |
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Official retaliation | |
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Boycotts | |
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Prisons | |
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Organizations | |
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Future Conduct | |
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Solicitation | |
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Membership restriction | |
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Primaries and elections | |
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