New York Business Law § 518 “prohibits merchants from imposing a ‘surcharge’ on customers who use credit cards, but allows for a ‘cash discount.’ To put it simply: the law allows stores to advertise ‘discounts’ for paying cash, but makes it a crime to advertise an economically equivalent ‘surcharge’ for paying with plastic.” The Supreme Court ruled late last month that by penalizing a merchant for its description of a transaction rather than for a transaction itself, the law triggered First Amendment scrutiny. So that’s a victory, if in the circumstances a narrowly limited one, for the modern trend toward serious First Amendment scrutiny of restrictions on commercial speech [Ilya Shapiro and Frank Garrison on Expressions Hair Design v. Schneiderman]

Filed under: advertising, First Amendment, Supreme Court