Amicus Curiae Brief — Expressions Hair Design v. Schneiderman, 137 S. Ct. 30 (2016) (No. 15-1391)

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No. 15-1391

IN THE

Supreme Court of the Anited States

EXPRESSIONS HAIR DESIGN, et al.,

Petitioners,

Vv.

ERIC T. SCHNEIDERMAN, in his official capacity as

Attorney General of the State of New York, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF LABOR, ENVIRONMENTAL, AND CIVIL

RIGHTS ORGANIZATIONS AS AMICI CURIAE

SUPPORTING RESPONDENTS

JUDITH A. SCOTT STACEY LEYTON

NICOLE G. BERNER Counsel of Record

JENNIFER HUNTER REBECCA LEE

SERVICE EMPLOYEES ALTSHULER BERZON, LLP

INTERNATIONAL UNION 177 Post St., Ste. 300

1800 Mass. Ave., N.W. San Francisco, CA 94108

Washington, DC 20036 (416) 421-7161

(202) 730-7383 sleyton@altber.com

CLAIRE PRESTEL

JAMES & HOFFMAN, P.C.

1130 Conn. Ave., N.W., Ste. 950

Washington, D.C. 20036

(202) 496-0500

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ............00000.c0c00ecee0es l

INTRODUCTION AND SUMMARY OF

EE ibis tchiincainccncacsanmniseediminieiniiciatasinibainastionts —

I tris bitcenprinetnniiinitienlinaiahinibiniihiemavas enenenes 7

I ADECISION INVALIDATING

SECTION 518 WOULD UNDERMINE

SETTLED DOCTRINE AND

SUBJECT ORDINARY SOCIAL AND

ECONOMIC REGULATION TO

CONSTITUTIONAL CHALLENGE. ............ 7

A. The conduct-speech distinction is

settled law and serves important

IIIS cacnscutenneiinncesinktnatdiininaknctbeeserwese sent 7

B. Invalidating section 518 would

undermine the conduct-speech

a ne ke 2 le 12

C. A ruling that section 518 regulates speech

would enmesh courts in policy

disputes best left to the legislative

D. A ruling for Petitioners would

invite constitutional challenges to a

wide swath of ordinary cconomic

and social legislation.......................-..-.-- 20

ll. EVEN IF SECTION 5181S

INTERPRETED AS A REGULATION

OF SPEECH, IT SHOULD BE

SUBJECT TO DEFERENTIAL

STINTS wicitniecintbiphicineiltthinisisintasessiahinrtionincicmwenainsants 26

A. For good reason, this Court has

long held that commercial speech

merits lesser a than

political speech...

B. Overturning this Court's well-

established commercial speech

doctrine, as Petitioners’ amici urge,

would be a dangerous and

unwarranted departure from

longstanding precedent.........................-

IIE ceiictccncssesnevevsscevsnnssccsinesneneennssscocncusncses

—

TABLE OF AUTHORITIES

CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

Pe iciccscetrenn te aieianaadinlaiiae 9, 14, 15, 27

Am. Fed’n of Labor v. Am. Sash & Door Co., 335

TEAL BSE Ee An a, 17, 19

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)...... 8

Bd. of Trustees of State Univ. of N_Y. v. Fox, 492

| ECE: =) TF

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ....... 16

Cal. Motor Transp. Co. v. Trucking Unlimited,

i cticcdseniiicintiiinsbnmenennnniancens 18, 19

Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm'n of N_Y., 447 U.S. 557 (1980).......... passim

Clark v. Martinez, 543 U.S. 371 (2005).................... 14

DeAngelis v. El Paso Mun. Police Officers Ass'n,

61 F.3d 591 (6th Cir. 1998).................000000+ asin 21

Edenfield v. Fane, 507 U.S. 761 (1993).............. 26, 27

Edwards v. District of Columbia, 755 F.3d 996

Ree ree 25

Friedman v. Rogers, 440 U.S. 1 (1979)..................... 28

Giboney v. Empire Storage & Ice Co., 336 U.S.

I ctiiciniietiginsiemncneationignimmiannnti 7, 10, 13, 14

Intl Franchise Ass'n, Inc. v. City of Seattle, 803

ES SS ST sen cerisecneunuiasmnmebantintnnnetiente 23

Kagan v. City of New Orleans, 753 F.3d 560 (5th

BE nical hac ocnstecienet ie cencetnndieiecininnniniclammenaenite 25

Liberty Coins, LLC v. Goodman, 748 F.3d 682

I TTI soc cecsinsinaid etiesinelimiamtibapiidiiunaenmeneuants 23

Lochner v. New York, 198 U.S. 45 (1905)......... passim

Lorillard Tobacco Co. v. Reilly, 533 U.S.

RE EAS AERA ae a ce 27

Lowe v. SEC, 472 U.S. 181 (1985) .......0.000-.-. 23, 24, 25

Milavetz, Gallop & Milavetz, PA v. United

States, 559 U.S. 229 (2010)................0.0.-00.2.. 28, 29

Munn v. Illinois, 94 U.S. 113 (1877)......................... 11

N. Dakota State Bd. Of Pharm. v. Snyder's

Drug Stores, Inc., 414 U.S. 156 (1973).......... 19, 20

Nebbia v. New York, 291 U.S. 502 (1934) .......... 11, 17

New State Ice Co. v. Liebmann, 285 U.S.

ns eeceinavebi 34

Nordyke v. Santa Clara Cty., 110 F.3d 707

EET 22, 23

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)............ 20

Ohralik v. Ohio State Bar Ass'n, 436 U.S.

I i lnindintibbicemsinniniemndeastaeticimeditinieesanincenses passim

Pickup v. Brown, 740 F.3d 1208 (9th Cir.

STi iscoliasssniessicaocapnesindpseensttiea daeaeinetananndcbaniainhdetiastiteonwedisiien 24, 25

R.A.V. v. City of St. Paul, 505 U.S. 377

REESE Pa Ae oe ee passim

Reed v. Town of Gilbert, 135 S. Ct. 2218

Rp Ras a 30, 31

Rumsfeld v. Forum for Acad. & Inst. Rights,

PS gS SF es eee 8, 13, 21

Sorrell v. IMS Health Inc., 564 U.S. 552

Sd ciabsshecpienpahnidkcibbdsnanictaenibitenineibbisndacnnaes passim

United States v. Carolene Prods. Co., 304

Va. State Bd. of Pharm. v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748

REATARD ME LR AE rn are OR passim

Welch v. Brown, 134 8. Ct. 2881 (2014) ................... 24

W. Coast Hoiel Co. v. Parrish, 300 U.S. 379

Tl iadeitnteicninideeseniadbinisindiaadennidmimianeient 6, 17, 19, 20

Williamson v. Lee Optical of Oklahoma Inc.,

ee i: Ce I ctitceniienicnecienacasencontmiess 16, 17, 20

Zauderer v. Office of Disciplinary Counsel, 471

es ies nideetliniintensnstniinninsasncedanacsess 28, 29

CONSTITUTION

U.S. Const. Amend. I ................... ican ike passim

U.S. Const. Amend. XIV .................2.-.:0ss000008 16, 17, 20

STATUTES

oS 5 na ac, 2 Oy A Jccccomadaenl 18

ee rt ttticitcninisccctincssnsimensincsi 12,14

I asinine ubceceibia 12

a ET TE eT 21

& A Eee ere nan ene passim

LEGISLATIVE MATERIALS

Pub. L. No. 94-222, 90 Stat. 197 (1976) ..................... 4

OTHER AUTHORITIES

Amanda Shanor, The New Lochner, 2016:1

Re ees HE nddicciinesneressitinsiciinabiabsmentonanindeinis 10, 22

American Heritage Dictionary (5th ed. 2016).......... 12

Jack M. Balkin, Republicanism and the

Constitution of Opportunity, 94 U. Tex. L.

Rev. 142°7 (2016).......-..-c.cccccscsssceeceseeeverees <a

John C. Coates IV, Corporate Speech and The

First Amendment: History, Data, and

Implications, 30 Const. Comment. 233,

ca menaiiisoasaons 24

Robert Post & Amanda Shanor, Adam Smith’s

First Amendment, 128 Harv. L. Rev. F. 165

RE REST ARLES SE ERER e eS Aa Ce eee 10

Robert Post, Compelled Commercial Speeci, 117

SX RS 8, 11

Webster's Third New International Dictionary

INTERESTS OF AMICI CURIAE

Amici curiae! Labor, Environmental, and Civil

Rights Organizations share an interest in defending

the states’ and political branches’ historical power to

regulate to protect the public and our environment. A

ruling for Petitioners would threaten that traditional

regulatory prerogative and upset the balance of power

between legislatures and the courts.

Amicus the American Federation of State, County

and Municipal Employees, AFL-CIO “AFSCME”) is a

union of 1.6 million members in the United States and

Puerto Rico, both in the public and private sectors,

who share a commitment to service. AFSCME

advocates for prosperity and opportunity for all

working families. AFSCME’s interest in this case is to

defend the government's ability to regulate the

economy so that AFSCME’s members and other

working Americans are protected from exploitation

and deceptive business practices.

Amicus the American Federation of Teachers

(“AFT”), an affiliate of the AFL-CIO, was founded in

1916 and today represents 1.6 million members in K-

12 and higher education, public employment, and

health care. The AFT has more than 3,500 locals

nationwide. The AFT’s interest in this case arises

from its long-term commitment to defending the

balance under the First Amendment between

protected speech and associational rights on the one

hand and the traditional right of government to issue

economic and social regulation and legislation that

1 No counsel for a party authored this brief in whole or in

part, and no person or entity other than amici curiae made a

monetary contribution to the preparation or submission of this

brief. All parties consented to the filing of this brief.

addresses conduct on the other.

Amicus the National Center for Lesbian Rights

(“NCLR’”) is a national non-profit legal organization

dedicated to protecting and advancing the civil rights

of lesbian, gay, bisexual, and transgender people and

their families through litigation, public policy

advocacy, and public education. Since its founding 1 in

1977, NCLR has played a leading role in securing fair

and equal treatment for LGBT people and their

families im cases across the country involving

constitutional and civil rights. NCLR has a particular

interest in promoting equal opportunity for LGBT

people through legislation, policy, and litigation, and

represents LGBT people in First Amendment and

other cases in courts throughout the country.

Amicus the National Women’s Law Center

(“NWLC’”) is a non-profit legal advocacy organization

dedicated to the advancement and protection of

women’s rights and opportunities and _ the

corresponding elimination of sex discrimination from

all facets of American life. Since 1972, NWLC has

worked to secure equal opportunity for women in

their families, including in the workpiace. NWLC has

played a leading role in the passage and enforcement

of federal civil rights laws, including through class

action and pattern or practice litigation and in

numerous amicus briefs involving discrimination in

employment before the United States Supreme Court,

federal courts of appeals, and state courts.

Amicus Natural Resources Defense Council, Inc.

(“NRDC”) is a non-profit membership corporation

founded in 1970 with hundreds of thousands of

members nationwide. NRDC engages in scientific

analysis, public education, advocacy, and litigation to

protect human health and the environment. NRDC’s

members rely on disclosure requirements and laws

against false and misleading commercial speech to

protect themselves and their families from

environmental toxins and other harms.

Amicus the Service Employees International

Union (“SEIU”) is a labor union representing more

than 2 million men and women in healthcare,

property services, and public service employment in

the United States, Canada, and Puerto Rico. SEIU is

dedicated to improving the lives of workers and their

families and creating a more just and humane socicty.

SEIU’s interest in this case is to defend the ability of

elected officials to enact policies that protect working

people and other consumers from exploitation or

deception.

Amicus the Sierra Club is a national nonprofit

organization with 67 chapters and over 665,000

members dedicated to educating and enlisting

humanity to protect and restore the quality of the

natural and human environment. The Sierra Club’s

concerns include protecting the public from products

that pose risks to safety, health, and welfare. The

Sierra Club’s particular interest in this case is to

preserve the ability of government entities to protect

the public through regulation of commercial

transactions, by adopting laws that support the

public’s right to know and that require disclosure of

risks to consumers.

Amicus the United Steelworkers International

Union (“USW”) is an international trade union

representing over 600,000 working women and men

in the United States and Canada in a diverse range of

manufacturing, mining, and service industries. USW

participated in the Congressional hearings in support

of a credit card surcharge ban that preceded the

passage of Pub. L. No. 94-222, 90 Stat. 197 (1976), the

federal statute providing the model for the New York

law, N.Y. Gen. Bus. L. § 518, at issue before the Court,

and USW’s positions at those hearings are referenced

on pages 6 and 8 of Respondent’s Brief. USW’s

interest in this case is to defend the ability of

America’s elected representatives to enact legislation

that protects its members and other working people

from deceptive business practices.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners and their amici disagree with the

policy justifications for New York General Business

Law § 518. But rather than leave economic policy

decisions to the state legislature, where the interests

of merchants, credit card companies, and consumers

are appropriately weighed, Petitioners and their

amici seek to constitutionalize their disagreement

with this unremarkable consumer protection statute.

In so doing, they imvite a decision undermining

distinctions—between conduct and speech and

between commercial and non-commercial speech—-

that have guided First Amendment law for decades.

This Court has long distinguished for First

Amendment purposes between laws aimed at conduct

and laws aimed at speech. This conduct-speech

distinction marks an important boundary between

the functions of the judicial branch and those of the

political branches and state governments, ensuring

that courts are not enmeshed in policy disputes

masquerading as constitutional! questions.

Section 618, like its federal predecessor, aims at

conduct rather than speech. The statute bars

merchants from “impos[ing] a surcharge” on credit-

card customers at the point of sale. Merchants remain

free to offer discounts from their posted price to

customers who pay with cash, to induce cash payment

by posting a low price for cash buyers and a higher

price for credit-card payers, and to speak about the

evils of “swipe fees.” Merchants are prohibited from

engaging in only one course of conduct: charging

consumers who pay with credit-cards a higher price

than what was posted.

Because section 518, properly interpreted,

regulates conduct rather than speech, a decision

invalidating the statute risks undermining the

longstanding conduct-speech distinction, with grave

consequences. Such a ruling will leave courts with no

doctrinally sound way to distinguish section 518 from

laws that have been upheld for decades as aimed at

conduct, e.g., laws regulating deceptive marketing,

securities disclosures, product safety warnings,

workplace and housing discrimination, and even the

communicative professions. Courts will be called on to

adjudicate the kind of policy disputes they have

avoided since the New Deal.

Petitioners and their amicis arguments

demonstrate the dangers presented by a ruling in

their favor. Their briefs encourage the Court to

invalidate section 518 in part because of what are, in

their view, the statute’s undesirable social and

economic consequences. See, e.g., Cato Inst. Br. at 3-

9; Consumer Action Br. at 9-16; Ahold U.S.A., Inc. Br.

at 23-31. But accepting that invitation risks a return

to the Lochner era, when courts displaced legislatures

as the arbiters of social and economic policy——a role

this Court has rejected since West Coast Hotel Co. v.

Parrish, 300 U.S. 379 (1937).

Furthermore, even if this Court were to treat

section 518 as a speech regulation (which it should

not), it should reaffirm rather than depart from the

longstanding principle of deference to commercial

speech regulation. Petitioners’ amici urge a radical

change in doctrine that would subject all content-

based regulation of commercial speech to strict

scrutiny. But accepting that view would hamstring

the political branches and states, because nearly all

commercial regulation draws distinctions on the basis

of the topic addressed. Indeec Petitioners themselves

(unlike certain of their amici) seek application only of

the ordinary commercial-speech test, making this

case a particularly inappropriate vehicle for casting

that test aside.

New York General Business Law § 518 is a

conduct regulation that under settled precedent

should be subject to nothing more than rational-basis

review. A decision invalidating it as a speech

restriction (especially via some departure from

ordinary commercial-speech principles) risks a return

to an era when courts, rather than legislatures,

passed on the wisdom of general economic legislation.

ARGUMENT

I. A DECISION INVALIDATING SECTION 518

WOULD UNDERMINE SETTLED

DOCTRINE AND SUBJECT ORDINARY

SOCIAL AND ECONOMIC REGULATION

TO CONSTITUTIONAL CHALLENGE.

A. The conduct-speech distinction is settled law

and serves important purposes.

This Court has long held that laws aimed at

conduct do not implicate the First Amendment even if

the regulated conduct is achieved through or

evidenced by language. As explained in Giboney v.

Empire Storage & Ice Co., 336 U.S. 490 (1949), “it has

never been deemed an abridgement of freedom of

speech or press to make a course of conduct illegal

merely because the conduct was in part initiated,

evidenced, or carried out by means of language, either

spoken, written, or printed.” /d. at 502 (citing Fox v.

Washington, 236 U.S. 273, 277 (1915) and Chaplinsky

v. New Hampshire, 315 U.S. 568 (1942)).

When a law regulates conduct achieved through

language, “the unprotected features of the words

[used to achieve the conduct] are, despite their verbal

character, essentially a ‘nonspeech’ element of

communication.” R.A.V. v. City of St. Paul, 505 U.S.

377, 386 (1992). “That is why[, for example,] a ban on

race-based hiring may require employers to remove

‘White Applicants Only’ signs.” Sorrell v. IMS Health

Inc., 564 U.S. 552, 567 (2011) (quoting Rumsfeld v.

Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 62

(2006) (“FAIR”); R.A. V., 505 U.S. at 385).

Put another way, even a law that may conceivably

limit what a person says is properly viewed as outside

the First Amendment’s purview when the law’s

purpose is to regulate conduct and not to suppress or

favor ideas. See Sorrell, 564 U.S. at 567. Indeed, “the

First Amendment does not prevent restrictions

directed at commerce or conduct from imposing

incidental burdens on speech,” id., even if the speech

incidentally burdened is core political expression. See

id. (“an ordinance against outdoor fires’ might forbid

‘burning a flag” without implicating the First

Amendment, even though flag-burning is a form of

protected expression (quoting R.A.V., 505 U.S. at

385)). “Any other conclusion would lead to the absurd

result that any government action that had some

conceivable speech-inhibiting consequences, such as

the arrest of a newscaster for a traffic violation, would

require analysis under the First Amendment.” Arcara

v. Cloud Books, Inc., 478 US. 697, 708 (1986)

(O’Connor, J., concurring).

Because the government may regulate conduct

generally without implicating the First Amendment,

it is also specifically true that “the State does not lose

its power to regulate commercial activity deemed

harmful to the public whenever speech is a component

of that activity.” Ohralik v. Ohio State Bar Ass'n, 436

U.S. 447, 456 (1978). Thus, even though a transaction

cannot be accomplished without communication (a

seller communicates an offer of a particular good or

service for a particular price; a buyer communicates a

counteroffer or acceptance), it has always been held

within the states’ power to regulate transactions

without offending the First Amendment. See id.

For that reason, it is also beyond debate that a law

regulating prices is a form of direct economic

regulation that does not implicate the First

Amendment. Eight justices emphasized this point in

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

(1996), agreeing that “direct regulation” requiring

“higher prices” for certain alcoholic beverages “would

not involve any restriction on speech.” Id. at 507

(plurality op.); see also id. at 525 (Thomas, J.,

concurring in part and concurring in judgment)

(regulation “directly banning a product, ... controlling

its price, or otherwise restricting its sale in specific

ways” “involv[es] no restriction on speech”); id. at 530

(O’Connor, J., concurring in judgment) (regulation

“establishing minimum prices” does not require First

Amendment analysis).

This is so even though the “power to ban the sale

of [a particular product] entirely does not include a

power to censor all advertisements that contain

accurate and nonmisleading information about the

price of the product.” Jd. at 513 (plurality op.); see also

Va. State Bd. of Pharm. v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748, 773 (1976). States may

directly regulate how sellers determine their prices

for goods or services even though they may not ban all

truthful advertisements of the sellers’ lawfully

determined prices. See Va. State Bd. of Pharm., 425

U.S. at 773. Critically, this means the First

Amendment does not prevent the direct regulation of

product-pricing practices, even though such

regulation will necessarily affect what sellers may say

in their advertisements (in that sellers may advertise

only lawful prices). See id.

The Court’s distinction between laws aimed at

conduct and laws aimed at speech is grounded in the

recognition that “an expansive interpretation of the

constitutional guaranties of speech and press”

otherwise would be unworkable and would

significantly reconfigure the relationship between the

legislative and judicial branches. Giboney, 336 U.S. at

502. The absence of a conduct-speech distinction

would lead to an unduly broad reading of the First

Amendment which would, for example, “make it

practically impossible ever to enforce laws against

agreements in restraint of trade as well as many other

agreements and conspiracies deemed injurious to

society.” Id.

Indeed, because “[v]irtually everything humans do

requires the use of language,” “virtually all

government regulations will, in one way or another,

‘burden’ speech, if by speech we mean the use of

human language.” Robert Post & Amanda Shanor,

Adam Smith’s First Amendment, 128 Harv. L. Rev. F.

165, 179 (2015) (citation omitted), Human

communication — literal “speech” — is “literally

everywhere.” Id. “The conduct of buying a car, for

instance, involves conversations with the dealer, the

offer of a price, and the signing of a contract that is

written in words.” Amanda Shanor, The New

Lochner, 2016:1 Wisc. L. Rev. 133, 177.

But laws regulating contracts have not

traditionally posed First Amendment problems, and

for good reason. If they did, even something as

ordinary as a state statute of frauds would require

searching constitutional scrutiny. Cf. Robert Post,

Compelled Commercial Speech, 117 W. Va. L. Rev.

867, 914 (2015) (although “every rent control law

limits the words we may express in a contract,” rent

control laws are not currently held to implicate the

First Amendment). Given the ubiquity of human

communication, interpreting the First Amendment to

encompass every law that burdens speech qua speech

would subject practically the entire policymaking

work of the states and the political branches to

constitutional review.

Such a rule would also contravene the Court's

historical recognition that the state’s power to

regulate economic activity is broad. Over eighty years

ago, this Court remarked that “there can be no doubt

that upon proper occasion and by appropriate

measures the state may regulate a business in any of

its aspects, including the prices to be charged for the

products or commodities it sells.” Nebbia v. New York,

291 U.S. 502, 537 (1934). In fact, the propriety of

general economic regulation has been recognized far

longer than that: “[I]t has been customary in England

from time immemorial, and in this country from its

first colonization, to regulate ferries, common

carriers, hackmen, bakers, millers, wharfingers,

innkeeper, &c., and in so doing to fix a maximum

charge to be made for’ services’ rendered,

accommodations furnished, and articles sold.” Munn

v. Illinois, 94 U.S. 113, 125 (1877).

B. Invalidating section 518 would undermine

the conduct-speech distinction.

Section 518 regulates merchants’ conduct in a

manner that, under this Court’s longstanding

precedent, does not implicate the First Amendment.

The law bars sellers from imposing a “surcharge” on

customers who pay with credit cards. Although the

statute does not define “surcharge,” that word's

ordinary meaning is “[a]n additional sum added to the

usual cost or amount paid.” Amerncan Heritage

Dictionary 1752 (5th ed. 2016) (emphasis added); see

also Webster’s Third New International Dictionary

2299 (2002) (defining “surcharge” as “a charge in

excess of the usual or normal amount: an additional

tax, cost, or impost.”).

Thus, section 518 is correctly interpreted to apply

only to “single-sticker-price schemes,” Pet. Br. at 25—

where a seller posts a single “sticker” price for a

product but then demands a higher-than-posted price

from credit-card customers at the point of sale. As

Congress explained in connection with section 518’s

federal Truth in Lending Act (“TILA”) predecessor, a

law against “surcharge[s]” is by any ordinary

understanding a prohibition against “increasing the

regular price” of a good or service above “the tag or

posted price ... tf a single price is tagged or posted.” 15

U.S.C. § 1602(q), (x) (1982) (emphasis added); see also

id. § 1666f(a)(2); Resp. Br. at 22 (“By its plain terms,

[section 518] prohibits sellers from collecting

additional money, in excess of the usual or regular

price, from consumers who pay with a credit card.”);

U.S. Br. at 15 (Section 518 “prohibits a merchant who

posts a single price for an item from charging more

than the posted price to a customer who elects to pay

by credit card rather than cash.”); Ahold Br. at 24

(describing section 518 as “prohibit|ing] merchants

from surcharging credit transactions at the point of

sale.”).

Properly interpreted then, section 518 regulates

“conduct, not speech,” because “[ijt affects what

[persons] must do ... not what they may or may not

say.” FAIR, 547 U.S. at 60. Sellers may still engage in

truthful advertising about their lawfully determined

prices, cf. Va. State Bd. of Pharm., 425 U.S. at 773,

and remain free to say anything they like about

credit-card “swipe fees.” Sellers also remain free to

use and advertise differential pricing schemes for

credit-card and cash customers. See Resp. Br. at 30-

31. All a seller may not do is engage in the conduct of

charging credit-card customers a higher-than-posted

price at the point of sale. And although that forbidden

action is “carried out by means of language,” Giboney,

336 U.S. at 502, its prohibition no more implicates the

First Amendment than (forbidding fraud or

“agreements in restraint of trade.” /d.

Petitioners and their amici make two arguments

for treating section 518 as a speech regulation,

neither of which has merit.

First, seeking to avoid the straightforward

conclusion that section 518 regulates conduct rather

than speech, Petitioners insist that the statute is

aimed at speech because it also bars the use of “dual

prices,” t.e., posting one price for cash buyers and a

different, higher price for credit-card buyers. But the

plain terms of section 518 do not prohibit “dual

pricing.” See Rep. Br. at 30-31. As previously

discussed, the ordinary meaning of “surcharge” is an

extra sum added to the “usual” price. See supra p. 11.

Where a merchant displays two prices for the same

product, the merchant is not adding a sum to the

“usual” price by charging a customer one of those two

prices—both prices could be characterized as a

“usual” price. Respondent thus correctly construes

section 518, like TILA before it, to apply only when a

seller posts a single regular price for a particular

product. Resp. Br. at 28; see also 15 U.S.C. § 1602 (q),

(x) (1982).?

Second, Petitioners and their amici urge the Court

to hold that section 518 implicates the First

Amendment because tt affects how sellers

“communicate the added cost” to their customers. Pet.

Br. at 5; see also, e.g., Ahold U.S.A., Inc. Br. at 19. But

while communicating the fact of the extra fee may be

a “component” of imposing it, Ohralik, 436 U.S. at

456, that fact does not prevent the State from

restricting the particular pricing practice of imposing

a surcharge. See id.; see also Sorrell, 564 U.S. at 567;

Giboney, 336 U.S. at 502. “[D]espite their verbal

character,” the words used to accomplish a forbidden

point-of-sale surcharge are “essentially a ‘nonspeech’

element of communication” that have no

constitutional salience. R.A. V., 505 U.S. at 386.

For similar reasons, the United States is wrong in

arguing that section 518 regulates speech because it

affects how merchants “communicate” their pricing

schemes—that is, because it affects what price a

merchant may display on a price tag. See U.S. Br. at

19. No one disputes that the state may lawfully

regulate the prices themselves and the relationship

between prices. See, e.g., 44 Liquormart, 517 U.S. at

* Even if Respondent’s reading of section 518 were not the

only plausible one, this Court should reject Petitioners’

invitation to construe the statute in a manner that could create

a constitutional question. See, e.g., Clark v. Martinez, 543 U.S.

371, 380-81 (2005).

507 (plurality op.); id. at 525 (Thomas, J., concurring

in part and concurring in judgment); id. at 530

(O’Connor, J., concurring in judgment). And because

the state may dictate what price can be charged, the

state necessarily may regulate the price a merchant

may write on a price tag. In other words, just as the

state could prohibit a merchant from writing $10 on a

price tag for a product that the state mandates be sold

at minimum for $20, the state may also prohibit

merchants who intend to charge credit card

customers $103 from posting $100 as the sole price

and then charging an extra $3 at the point of sale. See

U.S. Br. at 19. Section 518 forbids conduct (charging

an extra $3 at the point of sale when the price posted

was only $100) the same way that a minimum price

regulation forbids conduct (charging $10 when the

legal minimum is $20). That both laws affect what

dollars-and-cents price may legally be written on the

price tag is thus wholly outside the First

Amendment’s concern. Cf. Va. State Bd. of Pharm.,

425 US. at 773.

Unless premised on a misreading of the statute as

applicable to dual pricing, then, a ruling for

Petitioners would mean striking down a restriction on

conduct — the act of charging a customer more than

the posted, regular price at the point of sale — simply

because that conduct is carried out in part through

speech. While a merchant might believe that

imposing a surcharge at the point of sale would be a

more “effective” means of “drawing attention to the

cost of credit,” Pet. Br. at 30, the First Amendment

does not bar the State from making the policy

judgment that such conduct is “harmful to the public.”

Ohralik, 436 U.S. at 456. A bank robber fancying

himself a real-life Robin Hood might believe that

robbing financial institutions is the most effective

way to draw attention to wealth inequality, but that

does not mean laws proscribing robbery implicate the

First Amendment—even though they may thwart

Robin’s preferred way of getting his message across.

Cf. R.A.V., 505 U.S. at 385 (“expressive activity can

be banned because of the action it entails, [though]

not because of the ideas it expresses”).

In sum, precedent requires holding that section

518 (properly interpreted as applying only to single-

sticker-price schemes) regulates conduct rather than

speech and is therefore subject only to rational-basis

review.

C. A ruling that section 518 regulates speech

would enmesh courts in policy disputes best

left to the legislative branch.

For nearly eighty years, this Court has declined to

rely on constitutional doctrines to scrutinize the

political branches’ justification for ordinary economic

regulation. “The day is gone when this Court uses the

Due Process Clause of the Fourteenth Amendment to

strike down state laws, regulatory of business and

industrial conditions, because they may be unwise,

improvident, or out of harmony with a particular

school of thought.” Williamson v. Lee Optical of

3 While the above precedents make clear that freedom of

speech is not implicated by a state’s regulation of the price of a

product or service, amici acknowledge that regulation of other

sums may in some circumstances implicate the First

Amendment. Certain restrictions on payments to expressive

organizations could, for example, implicate the freedom of

association. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 658

(2000) (“[I]mpediments to the exercise of one’s right to choose

one’s associates can violate the right of association protected by

the First Amendment.” (quoting Bd. of Dirs. of Rotary Int'l v.

Rotary Club of Duarte, 481 U.S. 537, 548 (1987)). Freedom of

association is of course not at issuc im this case.

Oklahoma Inc., 348 U.S. 483, 488 (1955).

Instead, this Court has recognized that “a state is

free to adopt whatever economic policy may

reasonably be deemed to promote public welfare, and

to enforce that policy by legislation adapted to its

purpose.” Nebbia, 291 U.S. at 537. “Even if the

wisdom of the policy be regarded as debatable and its

effects uncertain, still the Legislature is entitled to its

judgment.” W. Coast Hotel, 300 U.S. at 399.

The rule of judicial restraint in the realm of

ordinary economic regulation is animated by the

recognition that, “[e]ven where the social

undesirability of a law may be convincingly urged,

invalidation of the law by a court debilitates popular

democratic government.” Am. Fed’n of Labor v. Am.

Sash & Door Co., 335 U.S. 538, 553 (1949)

(Frankfurter, J., concurring). Accordingly, it is now

black-letter law that “regulatory legislation affecting

ordinary commercial transactions is not to be

pronounced unconstitutional unless in the light of the

facts made known or generally assumed it is of such a

character as to preclude the assumption that it rests

upon some rational basis within the knowledge and

experience of the legislators.” United States v.

Carolene Prods. Co., 304 U.S. 144, 152 (1938).

These same principles also animate the conduct-

speech distinction. If it were true that the First

Amendment required searching judicial review of

every law that burdens communicative acts, then the

First Amendment would inevitably become the same

scourge of regulation that the Fourteenth once was.

Rather than a nebulous “freedom of contract,” an

unduly expansive concept of free speech would

authorize courts to strike down all manner of

legislation. The Court would “return[] to the bygone

era of Lochner v. New York, 198 U.S. 45 (1905), in

which it was common practice for this Court to strike

down economic regulations adopted by a State based

on the Court’s own notions of the most appropriate

means for the State to implement its considered

policies.” Central Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of N.Y., 447 U.S. 557, 589 (1980)

(Rehnquist, J., dissenting).

Petitioners may disclaim any desire to undermine

the conduct-speech distinction, but there is no

principled way to distinguish section 518 from many

other statutes with a similarly attenuated

relationship to speech. New York’s surcharge ban is

not meaningfully different, for example, from a law

banning agreements in restraint of trade. Cf, e.g., 15

U.S.C. § 1 (“Every contract, combination in the form

of trust or otherwise, or conspiracy, in restraint of

trade ... is declared to be illegal. Every person who

shall make any contract or engage in any combination

or conspiracy hereby declared to be illegal shall be

deemed guilty of a felony....”). The acts prohibited by

both kinds of laws are accomplished through

communication between actors, ie, the co-

conspirators in the case of agreements in restraint of

trade and the seller and buyer in the case of

surcharges. The purpose of both laws is to forbid the

activity that the legislature has deemed harmful,

cither restraining trade or imposing a surcharge. And

both kinds of laws affect only such communications as

would actually accomplish the forbidden conduct—

i.e., the “nonspeech” words employed in committing

the act of conspiring or of surcharging. R.A.V., 505

U.S. at 386.

“Certainly the constitutionality of the antitrust

laws is not open to debate,” California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508,

515 (1972), but if the Court rules for Petitioners, it

will invite debate on precisely that question.

Indeed, Petitioners’ and their amici’s arguments

show how dangerous a path the Court walks. Some

amici rail that New York’s anti-surcharge ban should

be invalidated because it leads to “retailers charging

a higher baseline price for both cash and credit users,”

such that cash customers subsidize credit-card users

who may be wealthier overall. Cato Inst. Br. at 9.

Similarly, Petitioners complain that because of their

own decision to pass “swipe fees” along by raising

prices across the board, cash purchasers are in effect

“subsidiz[ing] the cost of credit cards.” Pet. Br. at 7-8.

Other amici object that “customers who choose to pay

with credit cards” are not “required to bear the

marginal cost of their expensive payment method.”

Ahold U.S.A., Inc. Br. at 24. Still others opine that

surcharge bans “decrease consumer welfare.”

Consumer Action Br. at 11. And Petitioners explain

that they want to be able to impose surcharges

because “surcharges are far more effective than

discounts” at discouraging credit card use. Pet. Br. at

31.

But it should be irrelevant that the law may be

undesirable from Petitioners’ preferred policy

perspective. The economic soundness or “social

undesirability” of the challenged law is of no moment

to this Court. Am. Sash & Door Co., 335 U.S. at 553

(Frankfurter, J., concurring); see also W. Coast Hotel,

300 U.S. at 399. Courts do not “sit as ...

superlegislature[s]” to weigh “the wisdom or policy of

legislation.” N. Dakota State Bd. Of Pharm. v.

Snyder’s Drug Stores, Inc., 414 U.S. 156, 165 (1973)

(quoting Ferguson v. Skrupa, 372 U.S. 726, 731

(1963)); Obergefell v. Hodges, 135 S. Ct. 2584, 2612

(2015) (Roberts, J., dissenting) (quoting Lochner v.

New York, 198 U.S. 45, 69 (1905) (Harlan, J.,

dissenting)). “It is enough that there is an evil at hand

for correction, and that it might be thought that the

particular legislative measure was a rational way to

correct it.” Williamson, 348 U.S. at 488.

Again and again in the years since West Coast

Hotel this Court has “emphatically refuse[d] to go

back to the time when courts used the Due Process

Clause ‘to strike down state laws, regulatory of

business and industrial conditions, because they may

be unwise, improvident, or out of harmony with a

particular school of thought.” N. Dakota State Bd. of

Pharm., 414 U.S. at 165 (quoting Ferguson, 372 U.S.

at 731). Yet Petitioners and their amici would have

this Court do precisely that, only using the First

Amendment instead of the Fourteenth. The Court

would thus “reawaken{] Lochner’s pre-New Deal

threat of substituting judicial for democratic

decisionmaking where ordinary economic regulation

is at issue.” Sorrell, 564 U.S. at 603 (Breyer, J.,

dissenting).

D. A ruling for Petitioners would invite

constitutional challenges to a wide swath of

ordinary economic and social legislation.

If this Court were to undermine the conduct-

speech distinction by determining that section 518

regulates speech even if it applies only to single-

sticker-price schemes, many laws not previously

thought to raise constitutional questions would be

subject to First Amendment challenge.

Laws forbidding workplace harassment or housing

discrimination, for example, would arguably present

constitutional questions because the proscribed

discrimination is usually effectuated through speech.

Cf. FAIR, 547 U.S. at 62 (relying on the current

conduct-speech distinction for the proposition that

“Congress ... can prohibit employers § from

discriminating in hiring on the basis of race ... [even

if] this will require an employer to take down a sign

reading ‘White Applicants Only’ ....” (citing R.A.V.,

505 U.S. at 389)). In fact, at least one lower court has

already suggested that the First Amendment might

bar a Title VII sexual harassment claim where the

plaintiffs proof included derogatory comments

circulated widely by a male coworker, who also

reminisced about the “good ol’ days” before women

joined the workforce, compared female coworkers to

dogs, and opined that they were less qualified than

men to do the job. See DeAngelis v. El Paso Mun.

Police Officers Ass'n, 51 F.3d 591, 594-96 (5th Cir.

19965).

Other ordinary social and economic legislation

would be similarly threatened by a ruling for

Petitioners. If section 518 were held to burden speech,

“(njumerous examples ... of [other] communications

that are [currently thought to be] regulated without

offending the First Amendment, such as the exchange

of information about securities, corporate proxy

statements, the exchange of price and production

information among competitors, and employers’

threats of retaliation for the labor activities of

employees” could also be called into question.

Ohralik, 436 U.S. at 456 (citing SEC v. Texas Gulf

Sulphur Co., 401 F.2d 833 (2d Cir. 1968), cert. denied,

394 U.S. 976 (1969); Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970); Am. Column & Lumber Co. v.

United States, 257 U.S. 377 (1921); NLRB v. Gissel

Packing Co., 395 U.S. 575, 618 (1969)).

Applying First Amendment scrutiny to any

regulation that burdens an instance of the spoken or

written word would also have _ profoundly

antiregulatory effect in the “information age,” when

the marketplace is increasingly saturated with

information products. Jack M. Balkin, Republicanism

and the Constitution ec‘ Opportunity, 94 U. Tex. L.

Rev. 1427, 1446 (2016).

Lower courts have already fallen into the trap of

concluding the First Amendment applies to speech

qua speech, notwithstanding this Court's

longstanding conduct-speech distinction. In Nordyke

v. Santa Clara County, 110 F.3d 707 (9th Cir. 1997),

for example, the Ninth Circuit determined that a

county's addendum to its lease with a commercial

fairground operator that prohibited any person from

“selling” or “from offering for sale ... firearms or

ammunition to any other person at a gun show at the

fairgrounds” implicated the First Amendment. /d. at

710. Although the court recognized that “the act of

exchanging money for a gun is not ‘speech’ within the

meaning of the First Amendment,” the court

concluded that the act of “offering for sale” was

“commercial speech” because such action constituted

a proposal of a commercial transaction. Id. (citing Va.

State Bd. of Pharm., 425 U.S. at 762) (emphasis

added).

“But of course any sale or contract involves the

communicative elements of offer and acceptance.”

Shanor, supra, at 182. And because “offer and

acceptance are communications incidental to the

regulable transaction called a contract,” it has long

been the rule that regulating § such fiteral

communications no more implicates the First

Amendment than would regulating the terms or

performance of the contract itself. Lowe v. SEC, 472

U.S. 181, 232 (1985) (White, J., concurring). If the

county could lawfully prohibit the act of completing a

transaction (“selling”), then surely the county could

also prohibit the act of initiating that same

transaction (“offering for sale”). Nordyke, 110 F.3d

708-09. Cases like Nordyke will surely abound if the

Court were to undermine the _ conduct-speech

distinction by ruling in Petitioners’ favor.

Nor is the challenge in Nordyke an outlier.

Litigants recently brought a First Amendment

challenge to a statute that “regulate[d] individuals

and entities that hold themselves out to the public as

willing to purchase precious metals,” on the theory

that “holding oneself out” constituted protected

commercial speech. Liberty Coins, LLC v. Goodman,

748 F.3d 682, 691, 692 (6th Cir. 2014), cert. denied sub

nom. Liberty Coins, LLC v. Porter, 135 S. Ct. 950

(2015). Others challenged on First Amendment

grounds a law that distinguished between “large” and

“small” businesses in determining how much time a

business would have to come into compliance with

minimum wage increases, on the theory that the law

burdened the contractual franchise agreements that

pushed some businesses into the “large” category. See

Intl Franchise Ass'n, Inc. v. City of Seattle, 803 F.3d

389, 408-09 (9th Cir, 2015), cert. denied, 136 S. Ct.

1838 (2016).

These examples demonstrate

the increasing and broadening use by corporations

of challenges under the First Amendment to laws

and regulations generally, and especially and

increasingly laws that do not constrain expressive

businesses (such as media companies), but any

communicative or expressive activity of any

business, no matter how incidental to the purpose

and goals of the business, and no matter how little

any ordinary individual (even a shareholder or

employee of the business) might care about the

expression in question.

John C. Coates IV, Corporate Speech and The First

Amendment: History, Data, and Implications, 30

Const. Comment. 233, (2015).

Still other regulations of the marketplace would

also be called into question by a ruling for Petitioners.

First Amendment challenges could be brought to laws

regulating or imposing. substantive licensure

requirements on the practice of professions in which

communication plays an important role. For example,

“[mlost, if not all, medical and mental health

treatments require speech.” Pickup v. Brown, 740

F.3d 1208, 1229 (9th Cir.), cert. denied, 134 S. Ct.

2871 (2014), and cert. denied sub nom. Welch v.

Brown, 134 S. Ct. 2881 (2014). And most, if not all, of

an attorney’s work takes the form of speech. See id. at

1228.

Most courts have to date relied on the conduct-

speech distinction to uphold _ regulation of

communicative professions, on the theory that, “[j]ust

as offer and acceptance are communications

incidental to the regulable transaction called a

contract, the professional’s speech is incidental to the

conduct of the profession.” Lowe, 472 U.S. at 232

(White, J., concurring). Under the current conduct-

speech distinction, holding a lawyer liable for

malpractice does not implicate the First Amendment

even though the attorneys incompetence is

demonstrated in written or oral work product. Cf.

Pickup, 740 F.3d at 1228. And doctors may be “held

hable for giving negligent medical advice to their

patients, without serious suggestion that the First

Amendment protects their right to give advice that is

not consistent with the accepted standard of care.” Id.

For similar reasons, most courts currently hold

that “fiJf the government enacts generally applicable

licensing provisions limiting the class of persons who

may practice the profession, it cannot be said to have

enacted a limitation on freedom of speech or the press

subject to First Amendment scrutiny.” Lowe, 472 U.S.

at 232 (White, J., concurring). Where the government

adopts such licensing requirements, it is regulating

the conduct of the profession, even if the profession

itself is conducted through speech. See id.; cf. also

Pickup, 740 F.3d at 1229. If the rule were otherwise,

then the states’ universal requirement that aspiring

lawyers pass the bar exam would be subject to First

Amendment scrutiny, since practicing law is

paradigmatically communicative. But a decision that

undermines the conduct-speech distinction—as a

decision for Petitioners inevitably threatens—puts

these holdings at risk. Cf. Pickup, 740 F.3d at 1229;

compare also Edwards v. District of Columbia, 755

F.3d 996 (D.C. Cir. 2014) (invalidating ordinance

requiring licensure of tour guides on First

Amendment grounds) with Kagan v. City of New

Orleans, 753 F.3d 560 (5th Cir. 2014) (reaching

opposite conclusion), cert. denied, 135 S. Ct. 1403,

(2015).

If Petitioners succeed in undermining the conduct-

speech distinction in this case, other litigants will

surely bring First Amendment challenges to

regulations with which they disagree, on the theory

that the regulations affect some form of literal speech.

And district and appellate courts will struggle to find

a meaningful way to determine which laws are

exempt from constitutional scrutiny and which must

be subject to some form of searching judicial review,

with the likely result that many laws currently held

to regulate conduct will instead be struck down as

impermissible regulations of speech. A ruling for

Petitioners would thus “involve consequences of a far-

reaching and mischievous character; for such a

decision would seriously cripple the inherent power of

the states to care for the lives, health, and wellbeing

of their citizens.” Lochner v. New York, 198 U.S. 45,

73 (1905) (Harlan, J., dissenting).

IL EVEN IF SECTION 518 IS INTERPRETED

AS A REGULATION OF SPEECH, IT

SHOULD BE SUBJECT TO DEFERENTIAL

SCRUTINY.

A. For good reason, this Court has long held

that commercial speech merits lesser

protection than political speech.

Since the time the First Amendment’s protections

were first held to extend to commercial speech, this

Court has recognized that “a different degree of

protection is necessary” for that category of

expression. Va. State Bd. of Pharm., 425 U.S. at 770,

771 n.24; see also Central Hudson, 447 U.S. at 562.

“Commercial speech ... is linked inextricably with the

commercial arrangement that it proposes, so the

State’s interest in regulating the underlying

transaction may give it a concomitant interest in the

expression itself.” Edenfield v. Fane, 507 U.S. 761,

767 (1993) (internal quotation marks omitted). In

other words, “commercial speech doctrine

represents an accommodation between the nght to

speak and hear expression about goods and services

and the right of government to regulate the sales of

such goods and services.” 44 Liquormart, 517 U.S. at

499 (plurality op.) (internal quotation marks omitted;

emphasis in original).

For these reasons, the Court “developed a

framework for analyzing regulations of commercial

speech that is ‘substantially similar’ to the test for

time, place, and manner restrictions.” Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001)

(quoting Central Hudson, 447 U.S. at 562). Under this

standard, restrictions upon truthful and

nonmisleading commercial speech are subject to a

form of intermediate scrutiny. Edenfield, 507 U.S. at

767. (“[L]aws restricting commercial speech ... need

only be tailored in a reasonable manner to serve a

substantial state interest ....”). The Court “ha[s] not

insisted that there be no conceivable alternative” to a

challenged restriction of commercial speech, only that

the regulation “not burden substantially more speech

than is necessary to further the government's

legitimate interests.” Bd. of Trustees of State Univ. of

N.Y. v. Fox, 492 U.S. 469, 478 (1989) (internal

quotations omitted).

Commercial speech is also “subject to ‘modes of

regulation that might be impermissible in the realm

of noncommercial expression.” Jd. at 477 (quoting

Ohralik, 436 U.S. at 456). That the nature of

commercial speech renders it more readily susceptible

of verification, and more durable, permits the state to

compel certain speech (such as warnings or

disclaimers) and obviates the need for certain

constitutional rules (such as overbreadth and prior

restraint doctrines). See Va. State Bd. of Pharm., 425

U.S. at 772 n.24; Ohralik, 436 U.S. at 463 0.20;

Central Hudson, 447 U.S. at 564 n.6.

Certain laws intended to prevent confusing or

deceptive commercial speech are subject to an even

more deferential reasonableness analysis. Among the

“well settled” First Amendment principles are that

“It}he States and the Federal Government are free to

prevent the dissemination of commercial speech that

is false, deceptive, or misleading, or that proposes an

illegal transaction.” Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 638 (1985); see also Central

Hudson, 447 U.S. at 563 (“The government may ban

forms of communication more likely to deceive the

public than to inform it.”); R.A.V., 505 U.S. at 388

(‘risk of fraud” is among “the characteristics of

commercial speech that justifly] depriving it of full

First Amendment protection”). “The First

Amendment ... does not prohibit the State from

insuring that the stream of commercial information

flow[s] cleanly as well as freely.” Va. State Bd. of

Pharm., 425 U.S. at 771-72.

As recently as 2010, this Court reaffirmed that

required disclosures are subject to “the less exacting

scrutiny described in Zauderer.” Milavetz, Gallop &

Milavetz, PA v. United States, 559 U.S. 229, 249

(2010). That standard demands only that the

mandated disclosures be “reasonably related” to the

government's interests in preventing consumer

confusion or deception. Jd. at 250 (quoting Zauderer,

471 U.S. at 651).

Thus, it does not offend the First Amendment to

“require that a commercial message appear in such a

form ... as [is] necessary to prevent its being

deceptive.” Friedman v. Rogers, 440 U.S. 1, 10 (1979)

(quoting Va. State Bd. of Pharm., 425 U.S. at 775-81)

(alterations in original). Laws that require

disclosures in order to prevent consumer confusion or

deception “trench much more narrowly” on core First

Amendment interests, and so are subject to relatively

deferential review. U.S. Br. at 22 (quoting Zauderer,

471 U.S. at 651).

A single-sticker-price surcharge ban operates to

vindicate the government’s interest in preventing

consumer confusion and deception by requiring

merchants to disclose the total dollar-and-cents price

that credit card customers will pay, at a time before

they are actually purchasing the product. See Resp.

Br. at 54-55. It requires that customers receive more,

not less, information. If treated as regulating speech,

section 518 should thus be upheld as long as the

mandated disclosure is “reasonably related to the

State’s interest in preventing deception of

consumers.” Zauderer, 471 U.S. at 651 (emphasis

added). Because the danger that credit card

customers will believe they will have to pay only the

posted sticker price is “self-evident,” there is no need

for the State to submit further evidence that the

prohibited surcharge practice is misleading in order

to demonstrate the law’s constitutionality. Milavetz,

559 U.S. at 251.

B. Overturning this Court’s well-established

commercial speech doctrine, as Petitioners’

amici urge, would be a dangerous and

unwarranted departure from longstanding

precedent.

Petitioners confine their arguments to the

application of existing legal standards, and urge the

application of Central Hudson’s intermediate scrutiny

standard. Pet. Br. at 27-28, 36. But their amici go

much further, urging this Court to subject commercial

speech regulations to strict scrutiny if they draw

distinctions based on content. See, e.g., Ahold U.S.A.,

Inc. Br. at 4, 11-12, 15-16; Cato Institute Br. at 10-13.

Such a ruling would discard decades of settled

precedent and render it nearly impossible for the

government to protect consumer interests.

Petitioners’ amici claim to find support for this

direction in Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015), but the speech at issue in Reed was not

commercial. See id. at 2231. Reed did not address

commercial speech or cite the main commercial

speech cases at all, and the Court therefore had no

need to address Justice Breyer’s admonition that

subjecting content-based regulations of commercial

speech to strict scrutiny would “write a recipe for

judicial management of ordinary government

regulatory activity.” /d. at 2234 (Breyer, J.,

concurring in judgment).

That admonition highlights the fundamental

problem that would result from strict scrutiny of all

content-based regulation of commercial speech. As

Justice Breyer noted, “[rjegulatory programs almost

always require content discrimination.” Reed, 135 S.

Ct. at 2234 (Breyer, J., concurring in judgment). Of

course that must be true, because of the very

definition of content-based restrictions: “Government

regulation of speech is content based if a law applies

to particular speech because of the topic discussed or

the idea or message expressed.” Reed, 135 U.S. at

2227 (emphasis added). Laws requiring specified

warnings on cigarettes, prohibiting the marketing of

certain food products as organic or low-salt,

mandating disclosures of conflicts of interest in

fiduciary relationships, compelling disclosures of

certain provisions in mortgage contracts, and

forbidding off-label marketing of pharmaceutical

drugs are all triggered by the topic addressed, and

would therefore all be subject to strict scrutiny under

Petitioners’ amici’s proposed new rule.

That warning should be heeded here. If content-

based burdens upon commercial speech were subject

to strict scrutiny, the government would lose its

ability to protect consumers against confusion or

deception. Laws requiring warnings or disclosure of

facts necessary to avoid confusion or danger about

drugs, food, or other subjects, or prohibiting

misleading forms or means of advertising about

certain topics, would be invalidated unless courts

agreed with the legislative oor regulatory

determination of the importance of the problem

addressed and that the methods chosen were the least

restrictive.

Strict scrutiny applies to noncommercial! content-

based distinctions because of the danger that cuch

content-based distinctions could disguise laws that in

reality disfavor certain viewpoints, and thereby

“interfere with democratic self-government and the

search for truth.” Reed, 135 S. Ct. at 2233 (Alito, J.,

concurring); see also id. at 2229 (noting danger that

“future government officials may” use content-based

laws “to suppress disfavored speech”). Here, where

the speech at issue is indisputably commercial, and

the law addresses pricing schemes’ without

interfering with consumers’ ability to receive accurate

information or with a merchant's speech on issues

such .s the evils of credit card companies, there is no

simi.ar justification for strict scrutiny. Cf. Va. State

Bd. of Pharm., 425 U.S. at 771 n.24.

Nor does Sorrell v. IMS Health Inc., 564 U.S. 552

(2011), support applying strict scrutiny to all

commercial speech. Sorrell employed “heightened

scrutiny” to evaluate a law prohibiting certain

speakers from making specified uses of information,

but did not make clear whether that standard was a

version of Central Hudson’s intermediate review,

strict scrutiny, or something in between. See id. at

565. In fact, Sorrell concluded that the result would

be the same even if the Central Hudson standard

applied, rendering it unnecessary to decide whether

stricter scrutiny was appropriate. Jd. at 571-72.

Even more relevant here, Sorrell addressed a law

that prohibited a subgroup of disfavored speakers

from utilizing lawfully available information, for the

purpose of suppressing viewpoints to which the State

was hostile. See id. at 563-64 (“The law on its face

burdens disfavored speech by disfavored speakers.”);

id. at 567 (law was “aimed at particular speakers” and

imposed burdens based on “the identity of the

speaker”). The law itself made that purpose explicit.

Id. at 565 (Given the legislature’s expressed

statement of purpose, it is apparent that § 4631(d)

imposes burdens that are based on the content of

speech and that are aimed at a particular

viewpoint.”).

Whether treated as a mandatory disclosure law or

(more appropriately) as a prohibition on certain

pricing schemes, section 518 is not analogous to the

law at issue in Sorrell. Section 518, unlike that law,

is not designed to suppress a disfavored message that

conflicts with the state’s goals. Section 518 does not

restrict speech about “swipe fees” or a merchant's

pricing practices, and in fact enhances, rather than

suppresses, consumer access to information. It does so

by requiring disclosure of the full dollar-and-cents

price that credit-card customers will pay, which both

enables consumers to easily compare prices across

merchants and also helps avoid the kinds of consumer

deception or confusion that might flow from

consumers being charged more than the posted price

at the point of sale. Thus, unlike Sorrell, this case

involves a statute with a legislative purpose of

enhancing, rather than preventing, access to valuable

information. A purpose of preventing such access was

critical in Sorrell and may warrant heightened

scrutiny in other cases. Cf. Sorrell, 564 U.S. at 566

(consumers interest in information is strong; in

medicine and public health fields, “information can

save lives”); Central Hudson, 447 U.S. at 5663 (“The

First Amendment’s concern for commercial speech is

based on the informational function of advertising.”).

That the merchants in this case also wish to

convey a message through the action of imposing a

surcharge does not change the constitutional

analysis. The law does not restrict merchants from

speaking out against or educating their customers

about the cost of credit cards. And this Court long ago

rejected the notion that commercial speech “link[ed]

... to a current public debate” would thereby be

entitled to greater protections. Central Hudson, 447

U.S. at 563 n.5; see also Fox, 492 U.S. at 475. Because

the protection for commercial speech rests upon

listeners’ interest in the free flow of information, not

the autonomy interest of speakers, Va. State Bd. of

Pharm., 425 U.S. at 764, a commercial actor’s desire

to utilize certain mechanisms to amplify its speech

does not require constitutional invalidation.

As previously discussed, see supra section LB,

Petitioners’ and their amicis focus on the policies

implicated by section 518 make clear why heightened

scrutiny of commercial speech would return courts to

the Lochner era. One set of amici, for example, argue

that the State is wrong to conclude that consumers

will be deceived by the imposition of credit card

surcharges at the point of purchase, that it has other

mechanisms to prevent this kind of deception, and

that allowing surcharges would actually benefit

consumers and the market economy. Consumer

Action Br. at 12-16, 18-19; see also Cato Inst. Br. at 3-

10 (calling section 518 a form of “cronyism” and

complaining about its policy results); Ahold U.S.A.,

Inc. Br. at 6-7, 23-31 (complaining of “massive

negative impact on the national economy” and

“massive market inefficiency”). Similarly, Petitioners

protest that section 518 is unsound because

“surcharges are far more effective than discounts at

signaling to consumers the relative costs of a payment

system.” Pet. Br. at 31.

This sort of second-guessing of legislative and

regulatory determinations is not the proper role for

the courts. Rather, this Court has “provide[d] the

Legislative and Executive Branches needed leeway in

a field (commercial speech) ‘traditionally subject to

governmental regulation.” Fox, 492 U.S. at 481

(quoting Ohralik, 436 U.S. at 455-56). Petitioners’ and

their amici’s suggestion that this Court should

evaluate whether the New York legislature was

correct in its policy judgment about credit-card

surcharges threatens to unravel the longstanding

judicial consensus that the role of courts “is only to

determine the reasonableness of the Legislature's

belief in the existence of evils and in the effectiveness

of the remedy provided.” New State Ice Co. v.

Liebmann, 285 U.S. 262, 286-87 (1932) (Brandeis, J.,

dissenting) (emphasis added).

The Central Hudson majority presumably rejected

Chief Justice Rehnquist's dissenting admonition that

granting First Amendment protection to commercial

speech would bring back “the bygone era of Lochner”

because of their conviction that applying intermediate

scrutiny would not reinstate “the common practice ...

to strike down economic regulations adopted by a

State based on the Court’s own notions of the most

appropriate means for the State to implement its

considered policies.” 447 U.S. at 589 (Rehnquist, J.,

dissenting). But that would be the necessary

implication of Petitioners’ amici’s call to require strict

scrutiny of all content-based regulations of

commercial speech. The Court should reject

Petitioners’ amicis invitation to undermine the

courts’ legitimacy by turning back the clock to the age

of that anticanon.

CONCLUSION

For the foregoing reasons, the Second Circuit’s

decision should be affirmed.

Respectfully submitted,