Expressions Hair Design v. Schneiderman

Also called Expressions Hair Design, New York surcharge case

The 2017 Supreme Court decision holding that a no-surcharge law regulates speech, without deciding whether it survives First Amendment scrutiny.

What it is

Expressions Hair Design v. Schneiderman, 581 U.S. 37, was decided by the United States Supreme Court on March 29, 2017. New York merchants challenged that state's no-surcharge law, which like Florida's permitted cash discounts but prohibited credit card surcharges. The Court held that as applied to the single-sticker-price pricing scheme at issue, the New York law regulates speech, because it does not prohibit any particular pricing arrangement but rather dictates how a merchant may describe the difference between prices. The Court then vacated and remanded to the Second Circuit to analyze the law as a speech regulation rather than resolving the constitutional question itself. That distinction is why practitioners describe the case as important but incomplete. It settled the characterization question, that these laws implicate the First Amendment, and expressly left open whether a given no-surcharge law survives the applicable scrutiny, and whether it might be upheld as a valid disclosure requirement. For Florida, Expressions is context rather than controlling authority. The Eleventh Circuit had already struck down Florida's ban in Dana's Railroad Supply in 2015. Expressions confirmed the broader analytical frame that these are speech regulations, which is the frame Dana's used. Readers wanting the primary text should retrieve the opinion by docket number 15-1391 from the Supreme Court's own website rather than relying on secondary summaries.

Why it matters to your business

The practical lesson for a business owner is that what you call the fee has legal significance, and that regulators and courts have been thinking about exactly that for a decade. Calling a surcharge a cash discount does not make it one, and calling a fee something else does not change what it is. For Florida specifically, your operative authority is Dana's Railroad Supply and the Florida Attorney General's guidance, with Expressions as the national backdrop. Your operative obligations are network rules and disclosure. This is education, not legal advice. Constitutional cases are summarized here in general terms and a Florida attorney should advise on your specific program.

Where it gets contested

The reason this case is cited constantly and settles less than people think is that it decided a threshold question and remanded everything interesting. Merchants read it as vindication of the right to describe their own prices. States read it as leaving room to regulate disclosure. Both readings are defensible from the opinion. The follow-on litigation and state legislative response produced the current patchwork: several states replaced flat bans with disclosure rules requiring the total price including any surcharge to be posted, which is a design the Court's reasoning arguably invites. What remains unresolved nationally is whether a well-drafted disclosure-based surcharge statute is constitutional in every respect, and how far the speech characterization reaches into related practices like dual pricing and service fees. Those questions are live, and they are the reason no responsible advisor gives a categorical answer about pricing display across all fifty states.

How to check it yourself

Retrieve the Supreme Court opinion by docket number 15-1391 from supremecourt.gov and read the holding paragraph yourself. It is short, and it will immunize you against anyone who tells you the Supreme Court legalized surcharging nationwide.

Receipts

Claims above that are checkable, with where to check them. Published so you do not have to take anyone's word for it.

The Eleventh Circuit decision that controls in Florida and applies the same speech analysis
law.justia.com ↗
Analysis of the Florida surcharge ban being found unconstitutional in the same doctrinal frame
bipc.com ↗
Current state-by-state surcharge landscape reflecting post-litigation disclosure regimes
merchantcostconsulting.com ↗