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Surcharge for Swiping Credit Cards Violates Free Speech, 11th Rules

By Jonathan R. Tung, Esq. on November 05, 2015 | Last updated on March 21, 2019

It's only been little more than a month since the Second Circuit decided the New York case of Expression Hair Design v. Schneiderman, ruling that the state's no-surcharge law is lawful. Serendipitously, the Eleventh Circuit ruled this week that no-surcharge laws violate the First Amendment's guarantee of free speech.

The Eleventh Circuit ruled that the state's applicable statute, which bans retailers from charging a surcharge to customers who elect to use their credit cards is nonsense when taken in conjunction with the state's express allowance of offering a discount for cash.The court said it may have the look of regulating conduct, but in reality, it regulates speech.

Background

A group of retailers brought suit against the state of Florida, alleging that Florida's "no-surcharge" law, Fla. Stat. sec. 501.0117(1)-(2), was a violation of free speech and was otherwise unconstitutionally vague. These retailers wished to give their customers a choice of two prices: a higher one associated with credit card purchases, and a lower one for cash. All plaintiffs wished to call this a credit card surcharge rather than a cash discount.

Don't Call It a "Surcharge"

Unlike the Second Circuit in Expressions, the Eleventh Circuit said that a credit card surcharge and a cash discount is basically the same thing -- except for the fact that calling it a surcharge can lead to fines or jail time. Do you want heads or not heads? Because calling tails is a crime.

The "Surcharges-Are-Fine-Just-Don't-Call-Them-That Law"

In the words of the majority, "a simple slip of the tongue" could lead to imprisonment, and is thus a clear regulation on speech. To assume that sec. 501.0117 regulated conduct only cast a "judicial Theseus into the depths of a lexical labyrinth." That's circuit speak for "nothing would make sense."

Incredulously, the court opined that sec. 501.0117 only targets speech and suggested that it should be called the "surcharges-are-fine-just-don't-call-them-that law."

Dissent

However, the Circuit's own Ed Carnes dissented, citing that SCOTUS itself had declared in Liquormart v. Rhode Island that the government can regulate prices -under the Commerce Clause -- without violating the First Amendment. Judge Carnes pointed out that this was the basic premise of the Second Circuit in Expressions Hair Design v. Schneiderman: "prices, although necessarily communicated through language, do not rank as 'speech' within the meaning of the First Amendment," thus not implicating First Amendment protection.

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