First Amendment litigation is surrounding state anti-surcharge laws, which prevent merchants from imposing surcharges on transactions where customers use credit cards. These laws effectively prevent stores from passing credit card "swipe fees" onto their customers. Merchants argue that because the laws still allow them to provide discounts to customers who use other forms of payment, the laws violate their First Amendment rights by impermissibly restricting the way the stores can communicate. The state governments, in contrast, have defended the laws by asserting that they regulate conduct, not business speech, and therefore do not violate the First Amendment.
The Supreme Court in Expressions Hair Design v. Schneidermananswered part of the inquiry when it held that New York's anti-surcharge law violated speech, not conduct. Now, the case will return to the Second Circuit, which will determine whether it survives constitutional scrutiny. This Comment argues that anti-surcharge laws do not violate the First Amendment because they regulate speech that relates to commercial transactions and are thus categorized as commercial speech. Further, this Comment argues that state anti-surcharge laws survive the intermediate scrutiny applied to commercial speech as established by Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.