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tv   Expressions Hair Design v. Schneiderman Oral Argument  CSPAN  March 31, 2017 9:52am-10:58am EDT

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his opinion for the court wrote the law tells merchants nothing about the amount they allowed to collect from a cash or credit card pa payer pick instead regue such sellers making me to get their prices. we will oral argument in the case now. it's about one hour. >> wwielder argument first in case 15-1391 expressions hair design versus schneiderman. >> mr. chief justice and may please the court. this case is about whether the state may criminalize truthful speech that merchants believe is the most effective way of communicating the hidden cost of credit cards to their customers. i design new york's law suppresses the message -- >> i'm sorry. you are two groups of petitioners, one wants to just get a cash price without any information about the surcharge, and the other i felt wanted to give two separate prices.
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everybody doesn't want to give truthful information about the surcharge. >> they all want to do the same thing. i think what you're referring to is that some of them are doing different things now. one of the petitioners expressions hair design, is engaging in dual pricing, charging two different prices. one for cash, one for credit but they're trying as hard as he can to describe that as a discount so that they comply with the law. the other petitioners right now are refraining from dual pricing altogether. they don't want to run the risk of failing to comply with this regime. but if we win this case all of the petitioners would like to charge two different prices for cash or for credit, and you'd like to be able to characterize the price difference as a surcharge for using a credit card. >> that's not what i understood what your adversary can tell me. >> what speech precisely do think is being restricted? >> the message that when you use a credit card to pay more. and to be more precise, i think
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if you look at joint appendix 103-104, you'll find the supplement declaration of expressions hair design with exactly what you'd like to do. if you look at the yellow grease its page one, we have a -- brief we have a chart. what would like to do ideally is described the sandwich as ten dollars and then tell you that is going to cost a certain percentage more, 2% more, to to pay with a credit card. >> i guess that's what i said what speech precisely, he said the message you are going to pay more if you use a credit card. >> right. >> the statute is not written in terms of speech. it's written in terms of imposing a surcharge. let's say that there is a merchant and the merchant charges a list price for something as a dollar and the person comes up to the cash register and offers a dollar bill. the cashier says, oh, no.
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for you it's 95 cents because i impose a surcharge for people who use credit cards, right? without violating this law? >> you know, i don't know. one part of the difficult is and the reason we have a vagueness challenge -- >> you don't know? how would it violate the law? >> i don't think it would. >> even though you're describing something as a surcharge. the reason it would violate the law is because the conduct is, you know, it fits the law, right, that essentially you're not imposing a surcharge on credit card users. whatever you call it, however you described it, you're not imposing a surcharge on credit card users. >> i think the way this law works is that you can engage in precisely the same conduct. you can charge the two different
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prices, one for cash, one for credit. what runs afoul of the law is describing the price difference one way as a surcharge avs a credit. >> c, you said that again and i think my hypothetical was designed to show that that's just not right. i can imagine ways in which you might say that this is restricting speech, but that's not it. because as long as the price listed is the higher price, is a price that a credit card company has to pay, as long as that's true, you can describe it any which way you please and you can describe it in terms of imposing a surcharge or charging credit card customers more. and it still is not going to violate this law. >> i don't think so. i think in your hypothetical, the merchant hasn't telegraphed to the consumer at the same time
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that you prices, right? asked not what our clients want to engage in. if new york wants to continue to enforce the statute against deceptive practices or false advertising, we have no problem with it. this is an as applied challenge, and the merchants in this case want to engage in truthful speech. they want to disclose more. >> and want to do more. they want to impose a surcharge. then what's the problem with saying you're too young to know what the opa was? >> i think so, justice breyer. [laughing] >> is called the office of price administration. >> right. >> ken culbreath ran it for a while. what they would do, he said they would go around and still with the right price wise. after they said that in world war ii, you couldn't charge a higher price. when you come in and said, he says you can only charge $13 for this item. it violate free-speech. absolutely -- we want to charge
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$15. you can't impose a surcharge. very well, you can't. >> right. >> and you want to pick one second to do with speech? i grant you on business activity takes place through speech. >> right. >> suckling to me like it's got to do with speech. >> if you look at the statute it doesn't screen first amendment probably. >> not only doesn't it scream it, i want to know, unless you want to say when every businessman is regulated in what he can do, or sheep. that violates the first amendment omb's potential because they do it through speech. >> right. but this is a machine that says you are logical surcharge. you just can't call it a discount. the enforcement -- >> i don't see that. my statute that i'm reading since you can't charge a surcharge but you can charge a discount. i know, paul mcavoy, i hate to bring up these long gone names that he was an economist with whom i wrote a book. he would've said a discount and
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a surcharge of the same thing economically. but we live in a world that not everybody is an economist, and many people think it's quite a different thing. the are a lot of studies in this thing, you know, that said it was a different thing. >> certainly consumes reactively price information is communicated. >> not in the way, you have a regular price. eagle above the regular price is a surcharge. if you go below it a discount. >> but in this case both sides agreed the way the regular price is defined is in relation to how you can indicate that. look at page 20 of the red brief. they define regular price based on how it is communicative. both sides come to this case with the two propositions that they agree on. we all agree that the regulation of prices, the kind of price regular you're talking about, justice breyer, is economic conduct that doesn't advocate first amendment concerns. we also all agree and know from virginia board that communicating price information to consumers is protected by the
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first amendment and is at the heart of the commercial speech doctrine. >> can i go back to justice kagan's hypothetical. that doesn't address the situation where dual prices are posted but it addresses a situation where there is a dual price regime. some consumers are going to pay more, some consumers are going to be less. she says the sticker price is the higher price. and then when the cash purchaser comes to the cash register, the purchaser gets a pleasant surprise. no, you're going to be charged less. but but i thought your arguments that if that is the correct interpretation of the statute, and i don't really know what the statute means and we don't have a definitive interpretation, but if that is incorrect interpretation of the statute, what new york state has done is to force the merchant to say, to post a particular sticker price, namely, the highest sticker
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price, as opposed to the lower sticker price pixel that is mandated speech. isn't that your argument? .. and at the higher places, credit card prices are forcing merchants to speak in a particular way. >> they are forcing the merchant to speak in a particular way in the sense he has to characterize the price difference a certain way to comply. >> these are two different theories of what this is speech restriction. the reason i asked my question is because justice alito's theory does not appear to be your theory and i want to know which theory we are talking about. justice alito's theory is when
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the legislation says you have to post a higher price, that in itself is a restriction on speech and that is an interesting argument and maybe he is right about that. your brief took a different position, your brief said this legislation affects the way a cashier or somebody in a store affects the way they describe transactions generally. the cashier is going to be worried she can't say to the customer you charge water so use a credit card. which theory is your theory? >> justice alito is not wrong. if it has first amendment concerns if the state were to say here is how you display your
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prices it could be theoretically a disclosure regime and that is what this was posited for disclosure -- >> i am a little like justice alito and elena kagan, not sure what you are saying about the statute, it is not necessarily vague. the statute simply says the sales transactions involve a surcharge on the credit card by cash, check or similar means of. to be it was very simple, one price for everything, you walk in, forget about i don't know where they get this from, or the statute permits that, on the
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plane terms one price, and justice breyer, that was okay. i am hard-pressed to see if that is the interpretation to what i view as the plane meaning of the statute, that would be unconstitutional. >> it does not function in a vacuum. some of them put in their text a surcharge is not okay or not okay. everyone has agreed it has been interpreted in parallel with those statutes. >> really nice agreement except the state alone had two different interpretations. >> the state never wavered from the interpretation that framing the price difference as a discount is permissible under this regime. you don't have to take my word for it, you can look at the way it has been enforced. the statute was enacted in the 1980s. a few years thereafter there was the first criminal prosecution under the statute and in that
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case a gas station owner had the posted price, cash and credit, what caused the criminal prosecution is the cashier made the mistake of describing the price difference as a nickel more from using the credit card rather than a nickel less for cash. that speech and that speech only triggered the criminal prosecution of the prosecutor in that case and the judge that is what the statute sent. >> that is what the state will tell me. if they post credit card prices, cash price, $2, but if the person comes to the cashier and gives them a credit card the cashier will say you are paying a surcharge of $.10, you will be prosecuted for that. >> to run away from the enforcement history it would be difficult to run away from the most recent enforcement history, the statement after 50 or so merchants in 2008-2009, they were sweeps, you had
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declarations from merchants caught up in that sweep, lawyers, trade association and what happened in all those cases, somebody called on the phone pretending to be a customer, what are your prices and those merchants said it costs $10 to buy the heating oil and this many cents or to pay with a credit card and that was the only speech they engaged in, disclose their prices, nothing deceptive about that and they were targeted by the attorney general's office and asked how do we comply with this accident the attorney general's office didn't say disclose the total credit card price, they said you have to frame it as a discount, you can charge all you want and that shows this is regulating nothing but speech. >> does your argument depend upon the fact there is no difference from the consumer's
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perspective, this product is $100 and you buy it and it gets to the cash register and there is a surcharge, $103, it goes to the cash register, pays cash and it is $97 and is your argument that the consumer sees no difference in those situations? you agree with the statement that that could be to some extent misleading? >> it is important to understand it is as applied challenge and the only thing we are challenging his application of the statute to merchants who want to simultaneously prominently disclose the cash price and credit card price but wants to frame the credit card price as a surcharge. anything else is in the scope -- >> under your argument, you said that is not this case but under your argument, how would you analyze the hypothetical price?
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>> if the state wants to have a regime where they think it is a deceptive practice because you aren't telling people the higher price or price difference at the same time and people are hoodwinked or there is bait and switch they are free to do that. it is odd there is a criminal regime, false advertising law makes it possible to do that but if the state wants to enforce the statute that way we have no problem continuing to do that. if you look at joint appendix 144 you will see an example of a bait and switch scenario like that but the state didn't invoke its section 5 of the 180 but the false advertising statutes which suggests this statute has something else in mind. >> when i first read this statute without knowing about the background, the second circuit opinion, i interpreted
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the way sonia sotomayor or did. it mandates the price. that may be an uninformed interpretation but i feel uncomfortable about ruling on the constitutionality of the statute without knowing how the court of appeals would interpret the statute. why shouldn't we certify that interpretation to that course before we plunge into this first amendment issue. >> the state of new york did not ask certification below. you know more about the new york statute than any of these statutes and the courts that confronted the california statute had no problems striking them down without enforcement history, they were understood to mean the same thing and what you said is plaintiffs in a first amendment challenge have a right to prompt adjudication despite ambiguities in state law and so
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this court used to abstain in first amendment challenges where there is some ambiguity in state law. the modern trend is to take a crack at it and you have the enforcement history, you know what the statute means on the ground. if you had a content neutral statute and the state were enforcing it consistently in a content discriminatory way you would say we don't know what the statute means, you can't challenge that. we bring the challenge not just to wear dinner statute but to the way the statute is being enforced and the injunction would look the same whether you conceptualize that as a challenge to the statute as written or the state's enforcement policy but we wanted injunction that says -- >> what threw me, totaled merchants, they cannot say they have a surcharge. is that what it is? is that the problem?
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you can do exactly the same thing. >> you can charge -- >> they do the same or do they say you can have a discount? >> you can charge more all you want or just have to call -- >> did they call it a discount? what we are doing here is we are taking principles which are important of the first amendment case and apply speedy determination, not as applied, lots of protective things and diving headlong into an area called regulation. it is a form of price regulation and price regulation goes on all over the place in regulatory agencies so the words i fear begin with an l and ends with an are, there we go, the first amendment as a tool to get at
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price regulation, and sources say the wrong thing, that is a very general question, that is it. >> i understand the concern. it is a serious concern. this is not price regulation but the regulation how prices are communicated. when the state says to someone you can charge more all you want, that is not price regulation but how prices are communicated and here is the test if you want to figure it out, virginia board is the law, communication, price information protected by the first amendment, price regulation is economic conduct, in compliance with the law by changing what
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you say, without changing what you charge, that is the scenario here, that is what the state told those merchants -- >> you put a lot of emphasis on a few cases in which prosecutors describe the law in a certain way but the law as written doesn't do the things you are saying. justice alito is right the law as written can be read as sonia said mayor said, requiring a single price, something none of the reporters say but if you look at the law that is what the law says. even then, the law can say the only thing we are requiring is lift the higher price, and describe what you are doing any way you like, use the word surcharge, use the word more or
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less, and you are in the clear. and what these prosecutors say don't match what the law says. >> the conduct you can charge. >> we have an incredible fear of prosecution, if we say what we want to say, there is no dispute about that. they needed if we say what we want to say we could be prosecuted tomorrow. there is a case in controversy whether we could be prosecuted for truthful speech. >> that is not the case. you can say what you want to say, call this a surcharge, you can communicate in the way you
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want to communicate as long as your listed price is the credit card price. >> that makes it impossible to frame the surcharge because the number rises the credit card price making in the baseline price and effectively defines a surcharge and that is the purpose. >> you said it was unconstitutional as well. >> the federal law was unconstitutional, we don't have to win that fight to win this case. the reason is the federal trade commission, the federal reserve board and consumer groups all oppose that regime because it had the cost of credit from consumers. there was never any enforcement but you can look at pages 11 through 13, laying out how the regime worked and i don't think it is the way the solicitor general characterized it, you cannot find any regulations from the time the federal regime was in effect, you just list the highest credit card price.
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>> as far as discounts, is there protection the merchants can offer? >> can they do that under the statute? >> is there legislation that permit it? >> there is federal legislation that says it is a violation of the statute to have private ordering that permit the discount. that is what you had, contract rules that frame the price different as a surcharge. this contract rules were rescinded in 2013 in the case of antitrust me that led to this litigation. >> you said something interesting, if you understand the statute, the listed price is the credit card price looks like a disclosure regime. explained that. >> it might be accidental, what
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is requiring, and if is specifically -- guidance. there is evidence that it is further, and the percentage of service charges and restaurant menu, no one think that is a problem for consumers to do math. and suppress the essence merchants get across. is it possible for merchants to frame only one price to do it this way or is it going to dissuade them from getting their message across? >> a minute for rebuttal.
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>> mister fagan. >> thank you, may it please the court -- i want to focus on the dispute between parties that centers around a merchant that wants to cost $1.95 with a 5% credit card surcharge and the question is whether the state can require the merchant to identify a price of $2.05 before charging a customer who wants to use a credit card that amount. a lot like that is very similar to a law that regulates pricing or requires a merchant to honor offers to enter into a contract of the sort we normally would not think is subject to any first amendment scrutiny. nevertheless think requirements that everyone seems to agree is
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imposed here is best viewed under this court's precedents as speech regulation. in effect it is prescribing how the merchant communicates an otherwise lawful pricing scheme. to the extent new york's law like the federal law simply requires disclosure in dollars and cents form of any higher credit card price in the circumstances where the merchant has decided to display the lower cash price in dollars and cents, a perfectly valid consumer disclosure law under the court's decision. >> can you be more concrete for me? take the list of four ways they would like to advertise, which ways do you think, or would be new york law potentially or actually make any of this illegal?
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>> i don't think i can answer that question as to the new york law because we lack a definitive interpretation in the new york court of appeals. much dispute between the parties is the first 25 minutes of questioning involving what the new york law does under particular circumstances. i can answer the question on the assumption that the new york law tracks former federal law which the only thing federal law did through the definitional sections was require as i said earlier disclosure in dollars and cents of a higher credit card price, when the merchant -- >> if that is what this law means, which of these ways of advertising would be permissible and which would not be permissible? >> option a, dollar cash price, would be fine. option e, where $10 cash price,
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$.20 surcharge for item added to credit card purchases would not be permissible. you would have to disclose in dollars and cents -- >> you would have to say $10.20. it is not regulating price, it is the same price, i can do that math. >> it is better viewed as speech regulation under the first president but -- you can see $10 surcharge the same as option b, you would have to say $10.20. option the which is $10.20, a discount for cash purposes because you're disclosing to the consumers the highest price they would have to pay in dollars and cents. >> your understanding of why it is speech regulation is it is the way you list prices, is that right? >> that is right. a law that simply requires
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merchants who made a particular representation that the price of this item is $1.95 and requires the merchant, that was all the merchant said, nothing about surcharges at all, requiring the merchant to honor that price when the consumer gets to the cash register is economic regulation, not just regulation regulating pricing or contract offers, but the law everyone agrees is a little bit more, options b and c i was discussing, you can have a price tag that does reveal the existence of a surcharge expressed as mathematical formula -- >> prohibiting options b and c in the pastrami sandwich
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example. >> i wouldn't characterize this but simply requiring additional disclosure, finish the math problems with consumers and tell them the credit card price is $10.20. the reason that is permissible constitutionally, it is important to keep in mind the legislators are legislating a backdrop where there is no specific requirement to disclose the existence of a surcharge. >> that is very patronizing approach. it is $10 cash, $.20 surcharge, they have to do the math and that is $10.20. >> let me explain there are two good reasons that has to be done, it is reasonable -- >> $10.02. >> there are two reasons it is reasonable for legislature to
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decide, if it is requiring disclosure of the fact that credit card price is higher it can required to be made in dollars and cents rather than mathematical formula. >> it is not enough even if it is cash, $.20 surcharge violates the statute. >> all they said was in dollar price, $.20 surcharge, don't say $10.20 credit card price, it would be a violation -- >> a violation of the new york statute, is that a violation of the first amendment? that is truthful information. >> it is requiring further disclosure in dollars and cents
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form. there are two reasons the legislature can require disclosure to be made in dollars and cents, people receive prices and allows easy comparison of prices and doesn't require a consumer math problem. >> the american people are too them to say that if you say $10 plus $.20 surcharge they can't figure out that is $10.20? >> the second reason addresses that concern. which is that in new stability concerns, once you start allowing mathematical formulas you can get into a debate when the formula becomes too complicated for average consumer. >> $10 plus 20 is a mathematical
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formula. >> if you said 3246+2% then you are requiring people to do some work and you would rather just have them know, i can't do it that fast. >> i agree that is point c, percentage is more complicated, $.20, $10 is not too complicated unless you are taking a patronizing and condescending view of the capabilities of the american consumer. >> the legislator is entitled to draw clear lines. it is more complicated if you want to buy 17 things and if you are just buying one thing that increases complexity of the math problem and it would be harder to write a lot with certain formulas but not others. you can imagine, here are prices and cash, if you buy an item in
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credit we will charge a surcharge equal to the percentage that is the fifth digit of pie. >> it takes longer to figure out but you are saying it violates the law of $10 plus $.20. >> they are entitled to a bright line will, you can have price that creates a harder math problem and could be buying many items at once, you could have a certain amount of money you want to spend and have trouble figuring out what to fit under the budget. it makes comparison pricing easier. >> it does not look like a disclosure requirement. one way to understand it requires disclosure, a few people need the disclosure in the $.20 case, requiring it to
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make sure everybody is on the same page but if you look at the language of the statute it doesn't look like that and if we are going to say the disclosure requirement subject to a lesser form of first amendment review should the state be making clear that is what this is? >> the best for the court to do is federal law is clear, you can use federal law as a baseline for discussing the issue, the new york court of appeals to have a definitive interpretation of the law which there is dispute about what the law does. >> thank you, counsel. >> may it please the court, plaintext of new york statute refers to a pricing practice, the statute prohibits the seller
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from imposing a surcharge a customer who elect to use a credit card. for so is the list have also is due, the application of the statute is straightforward the seller may not add to its listed prices and must adhere to the prices of the customer decides to pay by using credit card. >> preliminary question about division of litigation authority, the attorney general or solicitor general have authority under new york law to district attorney's office stated interpretation of the statutes and the attorney general issued an official interpretation so district attorney's are required to enforce this in the same way. >> attorney general and district attorney are separate authorities. the relevant district attorneys where they are located are parties of this case. >> how many district attorneys
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are there? >> there are many. >> you tell us how you interpret this but how do we know how all these other district attorneys are going to interpret the statute, they may interpret it differently. >> i don't think there should be debate about the statute and it is because of plane reading of the text, reading what it means to impose surcharge. >> there seems to have been a debate because i look at this enforcement history and don't understand why this violates that law. you walked away from some of that force went and said the cashier can call it whatever she wantss to call it as long as the listed price is the credit card price, but that is contradicting some of this enforcement history, different understanding of this law was used. >> i disagree we are walking
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away from the enforcement history, if you look at what the history looks like from the attorney general's office it confirms a plane reading of the statute, the heating oil example, when the investigator called and asked what is your price, you is dollars and cents answer, they asked parkside oil, $3.45. i would like to pay by credit card, at that point the oil company said i'm going to impose a surcharge of $0.05 a gallon, and the word surcharge is an additional fee or charge on top of a baseline the seller has established. >> it is $103 by credit card.
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if you do not pay by credit card it is $100, that is lawful. >> if the heating oil -- >> it is created. >> let me respond in this way, the definition or determination of the surcharge, looking back to the seller's pricing package, a difference from a conveyed price but the first amendment doesn't prohibit the state from a previously conveyed price as a baseline for price regulation and regulation that just said you shall adhere to these prices or advertised prices, perfectly understandable economic regulation. >> it is $103 with cash, $100, that is because we impose -- >> i take that to be similar to the one dollar charge of coffee
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with the description of the surcharge and the statute does not prohibit that scheme because at the end of the day the listed price is the same as the price charged to a credit card customer. >> your answer to the reply brief example is the same as the solicitor general's office and do you have a concern the way it does that the statute could be read more broadly. >> our answers are the same, that is crystal clear is to carry out the same policy and purpose as the federal statute lapsed and the same is present in other states that adopted similarly. >> new york adopted this against the backdrop of a lot of consideration. why did it not adopt -- >> i can't answer the question
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because nothing explains why they did not. >> the other states that picked up after this didn't renew the statute, what did the other states do? did they hit the federal statute? >> the vast majority did not adopt the federal definition we only messages and adopt the federal definition and there are some sections where some of the statutes had a separate definition of surcharge which is the definition we have adopted here which is in addition to previously disclosed a regular price. all these statutes should be read similarly. >> if i interpreted the new york statute which i don't and i saw they copied part of the statute, they deliberately omitted other parts of the statute i would be tempted to infer that they had a reason for omitting the definitions and that is they didn't want to be bounded by
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that so they wanted something different. >> nothing in the history would support that interpretation and i would say part of the reason they may not have felt it necessary was because justice -- just as the federal statute for many years, the legislature, the ordinary meaning of a surcharge is not, they did need the clarifying definitions of the federal statute. >> i may be the only one that needs this help but i do have this problem. if this were legislator i would have voted against this, it does hide the cost, has nothing to do with this. i think the reason we are having so much trouble is because it is difficult but not impossible to distinction between surcharge and discount, if you want to distinguish and they are
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different, words are very helpful, they are evidentiary, they are evidentiary of something but that is all we have. the fact they had the questions they had and had trouble with this, and it is normal first amendment standards, we will discover all kinds of price regulation, and in this kind of problem and judges all over the country substituted for regulators and others, you tell me how to do it. >> what should we narrow if, as
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i believe is true, regulatory areas are areas that are not normal first amendment talks, you can't do it, principles apply. it applies everywhere in a sense but it used to be rational basis, used to be rational basis, water has flowed over that dan or under that bridge. i want to know your best thinking on what you would do in terms of trying to write a rule of law that would favor you. >> the first goes back to the text of the statute and recognizes the statute is not phrased in any way that touches what we would ordinarily think of as speech. in contrast to the statue that talks about regulating the advice where the agency would give. >> i can't look at the statute and rely on its words or make
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judgments on words because nothing of what you are saying is on the face of the statute. start with the language of the statute, ignore and go to a federal statute and apply definitions which how many we haven't told me, how you differ, haven't quite told me and i am going to assume federal definitions apply even though none of them are used here. i am very confused why you are starting your answer to justice breyer by saying look at the statute and see the words of the statute. >> if i could finish the answer, the way the statute is phrased,
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recognized the price regulation, and the first amendment -- >> it doesn't set any price at all, it lets the merchant set the price and how it is described is quite different feeling prices which is you cannot charge -- the merchants in charge without regulating the price of the goods. >> the way to understand the statute, once the seller has chosen that price, then its ability to change the price for someone who is constrained. you walk into a store, they give you a menu with a list of prices, those in large part are unadorned by any condition about
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when those prices should apply it in the course of the transaction between when you sit down and pay the bills those prices will be the prices charged to you even if you take a credit card and pay for it. >> i have to pay sales tax, every state has to figure out what the sales taxes and i have to do the math in my own head. >> there are a lot of price adjustments dollars could impose, member discounts, those support our point. what do those price adjustments apply to? at the end of the day, on the definition of a surcharge, all the adjustments apply to the regular or starting price. >> here is the narrow way this seems to affect communications, speech. i am the seller, i set my prices, i want to charge cash customers a dollar and i want to charge credit card customers $1.05.
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if i put my list price as one dollar high and cash customers get a happy surprise, that fine but if i put my list price as one dollar and the credit card companies get a not so happy surprise, that can't be done. so it affects the way a seller communicates, which price he is going to say is the regular price. why isn't that speech regulation? you might say as the solicitor general does it is speech regulation but only disclosure regulation and subject to a lower standard but you are saying it is not speech regulation at all and i want to know why given it is affecting which price you choose to say is your list price. >> if it affects what the seller does because it is being used as evidence to support whether a surcharge has been imposed and
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it is permissible under the first amendment for conduct to be defined in previous acts of speech, initiated evidence carried out in the speech and doesn't bar a state from regulating and a couple examples, under a statute, the seller shall adhere to a previously advertised price, that regulation, economic regulation is susceptible to the same analysis. of someone charges $100 they have to list $100 in their advertising, they can't was $98 or $95 or $90. and rumsfeld versus fair which recognized the heart determining whether it included military recruiters that might be looking at the content of email or notices or other evidence of the underlying conduct exclusion, that is the only way the seller's prices are used here, it is used as a benchmark to determine whether the seller
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engaged in the unlawful conduct of increasing a previously disclosed price. why this is clear, getting back to sonja soto mayor's question is in part because of the posture of this case, as the council acknowledged, if you look at the conduct they want to engage in there is no ambiguity about the baseline or regular price. >> there is a point, meeting all prices, we meet prices and business is close to another state and the other state allows cash as an option for surcharges and surcharges are disclosed,
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then the seller in this state says we will charge the lowest price, meet the price but we add $0.03 for credit cards. all our prices are increased by 3% for everybody because of the difficulty of applying surcharges in cases. >> it would be deemed to be a credit card surcharge. it is not presented by any of the petitioners. i don't mean to be evasive, that is an important point because the relevant question is whether the statute can be applied what petitioners want to do and don't want to engage inculcated pricing schemes. >> the that indicate the statute? >> it does not. under the vaguest option of the due process clause, the cases
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people can understand is enough to sustain and especially when it is clear how to apply in the context of plaintiff, this is clear from page 101-102 of the joint appendix, what petitioners will do the moment the statute is invalidated is list a single set of prices each of their goods and services and collect an additional amount of pop for a surcharge. it might be the case other petitioners would engage in complicated pricing schemes but way to resolve those questions are is in future out of port cases when they arrive and something we say from enforcement histories is deeply unclear whether those cases will arrive, and -- >> i hope your adversary will confirm this, they want to do these four things, one or the
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other. if we say these are okay, whatever else the law means, we are not reaching because it implied change. if we say they are okay or new york state court of appeals says it is okay it is okay. you are saying it is more than this, it is how they advertise but there's a further disclosure law, when a customer calls of the gas station, the gas station can't do any one of these four things and potentially other things. >> that is not our argument. you think so of these schemes are not okay because you could not involve a credit card surcharge. >> i am saying if we say it is okay. >> what somebody says over the
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phone can affect the underlying price structure. we keep phone calls as evidence of the underlying prices in the same way a printed blackard itself although an act of communication would be evidence of the underlying prices, and they were describing something they had settled on. >> does this apply to all merchants, anyone who sells anything? >> there are limited exceptions for government. >> suppose some kids are washing cars and a glass of lemonade, somebody comes up to them and says i want to buy that with a credit card it might happen today. i have never seen anybody by anything with cash, that would be a violation, under the
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assumption every but he will pay cash, these are the tech savvy kids, the credit card purchases. >> the statues has no exemption, to exercise that situation. >> big examples but i can in areas like energy, make their own energy, time of day and regulatory rules that affect energy company presents the pricing of this element or that element included at all these areas, first amendment standard is rational basis going stronger. how do i distinguish the cases,
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what they say in respect to price. and even if it is evidentiary area, the statute does affect what people say to price, and what the amendment is driving at, what is the best? >> what they are saying about prices to prevent you from engaging price in the first instance, in cases like virginia state board of pharmacy, and underlying price that would be applied to a consumer walked into a pharmacy to buy prescription drugs, description is incidental to the regulation of the underlying consumer transaction and the price the seller made. the point about other
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regulations, and the other regulations demonstrate there are multiple ways the legislature accomplished can address a regular price. and the credit card surcharge, you can increase prices if you add an additional driver of these would operate on the same underlying price structure is the starting point is the baseline price. >> if we agree with the government, it affects how the merchant characterizes his price. would you also take the position the government takes as a disclosure law? >> we think that it can be because we agree with the
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federal government about compliance options under the statute. under new york law and federal law, the way it complies is to display dollars and said that charges the credit card customers. >> explain how a disclosure requirement to suppress the actual cost of credit card purchase. >> it is only preventing -- the better way to look at it, it is requiring a different price for credit card customers. >> you think that the dual price is legal. that is something the second circuit did not decide and standing on, that is quite
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relevant. price indices, it is the disclosure requirement. >> i think it would be. why the second circuit abstained do so because it rejected our interpretation of the law which allows pricing, the statute was susceptible to an interpretation that would allow pricing because of clear indication new york follows federal statute and would not adopt an interpretation that would raise problems. we think this court could adopt our interpretation of state law it would be fair to recognize no need to deviate from the federal statute but i want to respond to another point justice ginsburg raised, whether this suppresses information about credit card costs. the think about statute prevents the seller from educating consumers about credit card costs, talking about it, many
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petitioners do so and told customers that use credit cards that they impose and they remain free to do so under this statute. an important sense that speech is a better and more direct way of advocating credit card costs with the surcharge. to impose a flat surcharge without a penalty any further speech here, a message about credit card costs doesn't explain why the surcharge is imposed, it is imposed because of specific interchange fee, it says nothing about the amount, bears no relationship, to the actual cost to 2.7%. >> the scheme addresses that. no disclosure requirement of your actual credit card charge versus what you are charging,
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the scheme does nothing to help that situation. >> this supports our point, it does not affect anything sellers say about their credit card costs. the imposition of a surcharge, that is the classic conduct resolution. >> a minute. >> thank you, mister chief justice. this is a restriction of speech, disclosure rationale that new york abandon in the courts below and barely pressing here and the problem is criminal speech restriction and your merchant is faced with compliance, if you think this is a disclosure, what are we supposed to say? typically a disclosure regime doesn't leave you in the dark about what you had to say, the government tells you what to
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say. there are serious constitutional problems if you have a disclosure regime that does not tell the merchant what to say. it into pre--- free pass, the government hypothesized a regime that could exist, it is subject to first amendment scrutiny, the question chief justice roberts asked, do we think people are too them to do math? why in this context we think that? it has something to do with the present the cost of credit cards. >> the case is submitted. >> the us supreme court is considering a case over when to lease or be sued for excessive force, police shot them in a shack behind a house, the police were searching for a parolee and came across the couple, the man happened to be holding a bb gun he used to shoot rats. a $4 million award, listen to oral argument in the case in los
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angeles county versus mendez tonight at 8:00 eastern. former white house advisor mike flynn should ask for immunity before testifying before congress on russia ties. we will bring live coverage this afternoon for the white house briefing which is scheduled to start at 1:00 p.m. eastern. former deputy secretary of state and national security advisor tony pink and will talk about us/asia relations at johns hopkins university school of advanced international studies annual asia conference. live coverage begins at 1:00 eastern on c-span. live sunday at noon eastern investigative journalists, annie jacobson is our guests on booktv's in depth. >> what is clear is moving humans in the military environment toward being comfortable with the idea of
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merging man and machine. >> reporter: this jacobson known for writings on war, and government secrets, and will discuss or four recent books, area 51, operation paperclip, the pentagon after brain the 2016 pulitzer prize finalists in history and her most recent, phenomena and. join our live, 3 hour conversation with annie jacobson with your calls, emails and facebook questions live sunday at noon eastern on booktv's in depth on c-span2. sunday night on afterwards, rhode island senator sheldon whitehouse examined how the government is impacted by corporate money and special interest groups in his book captured, the corporate infiltration of american democracy. he is interviewed by eric lipton. >> when you have one corporate group spending $700


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