Mar 29, 2017
Retailers welcome Supreme Court free speech ruling on credit card swipe fees

The National Retail Federation welcomed a U.S. Supreme Court ruling today that First Amendment free speech rights should be considered when determining how merchants show consumers credit card swipe fees that drive up the price of merchandise by billions of dollars a year.

“Most retailers have no desire to surcharge their customers for using credit cards,” NRF Senior Vice President and General Counsel Mallory Duncan said. “That would be the opposite of our industry’s goal of bringing credit card swipe fees under control. But merchants do want to be able to show customers the cost of using a credit card without running afoul of the law.”

“Today’s ruling is a clear stand in favor of the free speech protections of the First Amendment,” Duncan said. “The nation’s highest court has recognized that whether a merchant chooses to communicate credit card fees through a surcharge or through a cash discount is a matter of speech.”

“While merchants don’t want to surcharge, having the ability to do so would be an important negotiating tool in convincing the card industry to charge reasonable fees instead of continuing to drive up consumer prices through this skyrocketing hidden tax,” Duncan said.

The Supreme Court this morning struck down an appellate court ruling that upheld a New York state law banning credit card surcharges and sent the case back to the appeals court to be reconsidered. The justices said the appeals court incorrectly concluded that the surcharge ban regulated only conduct rather than speech.

The surcharge ban “is not like a typical price regulation which simply regulates the amount a store can collect,” the Supreme Court said. “The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves (it) regulates speech.”

The ruling came in a case challenging the New York law and similar measures in nine other states that prohibit merchants from imposing a surcharge when customers use a credit card. The laws, which were passed at the urging of the card industry, can be traps for merchants who give a cash discount. The lawsuit before the court argues that the laws violate merchants’ free speech rights under the First Amendment and are unconstitutionally vague under the Due Process Clause of the 14th Amendment.




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