Expressions Hair Design v. Schneiderman,
581 U.S. ___ (2017)

Annotate this Case



No. 15–1391



on writ of certiorari to the united states court of appeals for the second circuit

[March 29, 2017]

Justice Breyer, concurring in the judgment.

I agree with the Court that New York’s statute regulates speech. But that is because virtually all government regulation affects speech. Human relations take place through speech. And human relations include community activities of all kinds—commercial and otherwise.

When the government seeks to regulate those activities, it is often wiser not to try to distinguish between “speech” and “conduct.” See R. Post, Democracy, Expertise, and Academic Freedom 3–4 (2012). Instead, we can, and normally do, simply ask whether, or how, a challenged statute, rule, or regulation affects an interest that the First Amendment protects. If, for example, a challenged government regulation negatively affects the processes through which political discourse or public opinion is formed or expressed (interests close to the First Amendment’s protective core), courts normally scrutinize that regulation with great care. See, e.g., Boos v. Barry, 485 U. S. 312, 321 (1988) . If the challenged regulation restricts the “informational function” provided by truthful commercial speech, courts will apply a “lesser” (but still elevated) form of scrutiny. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 –564 (1980). If, however, a challenged regulation simply requires a commercial speaker to disclose “purely factual and uncontroversial information,” courts will apply a more permissive standard of review. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985) . Because that kind of regulation normally has only a “minimal” effect on First Amendment interests, it normally need only be “reasonably related to the State’s interest in preventing deception of consumers.” Ibid. Courts apply a similarly permissive standard of review to “regulatory legislation affecting ordinary commercial transactions.” United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) . Since that legislation normally does not significantly affect the interests that the First Amendment protects, we normally look only for assurance that the legislation “rests upon some rational basis.” Ibid.

I repeat these well-known general standards or judicial approaches both because I believe that determining the proper approach is typically more important than trying to distinguish “speech” from “conduct,” see Sorrell v. IMS Health Inc., 564 U. S. 552, 582 (2011) (Breyer, J., dissenting), and because the parties here differ as to which approach applies. That difference reflects the fact that it is not clear just what New York’s law does. On its face, the law seems simply to tell merchants that they cannot charge higher prices to credit-card users. If so, then it is an ordinary piece of commercial legislation subject to “rational basis” review. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 507 (1996) (opinion of Stevens, J.). It may, however, make more sense to interpret the statute as working like the expired federal law that it replaced. If so, it would require a merchant, who posts prices and who wants to charge a higher credit-card price, simply to disclose that credit-card price. See 15 U. S. C. §§1602(q ), (x), 1666f(a)(2) (1982 ed.); see also post, at 9 (Sotomayor, J., concurring in judgment). In that case, though affecting the merchant’s “speech,” it would not hinder the transmission of information to the public; the merchant would remain free to say whatever it wanted so long as it also revealed its credit-card price to customers. Accordingly, the law would still receive a deferential form of review. See Zauderer, supra, at 651.

Nonetheless, petitioners suggest that the statute does more. See, e.g., Brief for Petitioners 28 (arguing that the statute forbids “[f ]raming the price difference . . . as a credit surcharge”). Because the statute’s operation is unclear and because its interpretation is a matter of state law, I agree with the majority that we should remand the case to the Second Circuit. I also agree with Justice Sotomayor that on remand, it may well be helpful for the Second Circuit to ask the New York Court of Appeals to clarify the nature of the obligations the statute imposes. See N. Y. Comp. Code, Rules & Regs., tit. 22, Rule 500.27(a) (2016) (permitting “any United States Court of Appeals” to certify “dispositive questions of [New York] law to the [New York] Court of Appeals”).

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