Credit card surcharges and the First Amendment – The Daily Cougar
Credit card surcharges are synonymous with cash discounts. However, eleven states, including Texas, prohibitpassing credit card surcharges onto consumers as a way to cover the merchant fees associated with credit card payments. Bans on surcharges are not a new phenomenon in the United States, but when the federal ban expiredin 1984, these bans were largely left to state legislatures.
The most recent case regarding this matter, Expressions Hair Design v. Schneiderman, was heard by the Supreme Court earlier this year and concerned New York businesses that fell under the bans jurisdiction.
The argument was made that banning a surcharge to cover the interchange fees when a customer opts for the use of a credit card in lieu of cash or other similar means was a violation of the First Amendment right of businesses.
While it is legal under the New York statute as well as many others to offer a cash discount, businesses are not allowed to label the transaction fee a credit card surcharge.
The First Amendment argument is weak. The idea that it is meant to protect consumers with transparency is suspect. Aside from refusing merchants the right to label a cash discount or lack thereof a particular way, very little of the legal wording of these provisions mention anything explicitly regarding free speech.
A major problem with the free speech argument is that the enforcement history concerning the charges has been ambiguous over the years. Even the aim of the statute is slightly arbitrary.
Whether these statutes imply that two prices, one for credit cards and one for cash equivalents, is prohibited or these statutes are aimed at curbing bait-and-switch pricing tactics is not entirely clear.
If businesses were forced to convey the reason for the credit card surcharge instead of a cash discount, it would be a way of controlling speech as well.
The reason a business wouldnt want to convey the surcharge: to avoid the awkward conversation of why their customers suddenly have to bear the brunt on the transaction costs, which I imagine is a highly prevalent phenomenon.
Behavioral economic theories play a role in the case but are hard to quantify or find legitimate empirical evidenceaffirming a rejection of the ban. Overall, the argument that could potentially justify the overturn of such bans are not without merit. The surcharges could transfer more power from credit card companies to consumers.
Consumers sentiments could change regarding the frequent use of credit cards as well as provide consumers with more information about transactions with increased transparency. All that aside, even with commercial speech taken into account, these laws most definitely regulate conduct as opposed to speech.
In effect, this renders the First Amendment argument as an appeal that comes off as little more than grasping at straws.
Opinion columnist Nicholas Bell is an MBA graduate student and can be reached at opinion@thedailycougar.com
Tags: Credit Cards, economics
See the article here:
Credit card surcharges and the First Amendment - The Daily Cougar
- Historys Lessons for the Second Committee for the First Amendment - The Nation - October 21st, 2025 [October 21st, 2025]
- Why did the city turn off social media comments? Does that violate the First Amendment? - WQOW - October 21st, 2025 [October 21st, 2025]
- Euphemisms, Political Speech, and the First Amendment - The Dispatch - October 21st, 2025 [October 21st, 2025]
- Indiana University Fires Student Newspaper Adviser Who Refused To Block News Stories - First Amendment Watch - October 21st, 2025 [October 21st, 2025]
- Mike Johnson Accuses No Kings Protesters of Blatantly Exercising First Amendment Rights - The Borowitz Report - October 21st, 2025 [October 21st, 2025]
- Florida chooses harassment and intimidation, over the First Amendment | Letters - Tampa Bay Times - October 19th, 2025 [October 19th, 2025]
- Test your Constitutional knowledge: Are these protests protected by the First Amendment? - AL.com - October 19th, 2025 [October 19th, 2025]
- Know Your First Amendment Rights Before the Assignment - National Press Foundation - October 19th, 2025 [October 19th, 2025]
- Lawrence school board candidates share how they would apply the First Amendment while in office - Lawrence Journal-World - October 19th, 2025 [October 19th, 2025]
- Florida chooses harassment and intimidation, over the First Amendment | Letters - Yahoo - October 19th, 2025 [October 19th, 2025]
- First Amendment rights and whether you really should say that - The Republic News - October 19th, 2025 [October 19th, 2025]
- The Knight Institutes Ramya Krishnan on the Trump Administrations Unconstitutional Targeting of Noncitizen Speech - First Amendment Watch - October 19th, 2025 [October 19th, 2025]
- A Brief Legal Analysis of the Department of Educations Proposed Compact for Higher Education - | Knight First Amendment Institute - October 17th, 2025 [October 17th, 2025]
- Attorney General Bonta Co-Leads Multistate Coalition in Defense of First Amendment Protections for Noncitizen Students and Faculty - State of... - October 17th, 2025 [October 17th, 2025]
- Brown University Rejects Trumps Offer for Priority Funding, Citing Concerns Over Academic Freedom - First Amendment Watch - October 17th, 2025 [October 17th, 2025]
- Prominent First Amendment lawyer Floyd Abrams to give annual Amanpour lecture Rhody Today - The University of Rhode Island - October 17th, 2025 [October 17th, 2025]
- Do Government Media Policies Like the Pentagons Violate the First Amendment? - Freedom Forum - October 17th, 2025 [October 17th, 2025]
- COLUMN: Jimmy Kimmel cant hide behind the First Amendment | Mike Rosen - Denver Gazette - October 17th, 2025 [October 17th, 2025]
- Journalists Turn in Access Badges, Exit Pentagon Rather Than Agree to New Reporting Rules - First Amendment Watch - October 17th, 2025 [October 17th, 2025]
- 5 days and the First Amendment's future: CSU reinstates free speech policy following weeklong protests - The Rocky Mountain Collegian - October 17th, 2025 [October 17th, 2025]
- Federal Judge Blocks Texas From Enforcing Law Giving the First Amendment a Bedtime by Banning Overnight Protest Encampments - The New York Sun - October 17th, 2025 [October 17th, 2025]
- Fox News rebuke shows Trumps attacks on First Amendment are hitting roadblocks - CNN - October 15th, 2025 [October 15th, 2025]
- Americans agree the First Amendment is important, but many are unsure why, survey says - AL.com - October 15th, 2025 [October 15th, 2025]
- Chiles v. Salazar : a Defining Test for the First Amendment - City Journal - October 15th, 2025 [October 15th, 2025]
- State of the First Amendment Address to focus on algorithms, free expression, AI - University of Kentucky - October 15th, 2025 [October 15th, 2025]
- New York Times, AP, Newsmax Among News Outlets Who Say They Wont Sign New Pentagon Rules - First Amendment Watch - October 15th, 2025 [October 15th, 2025]
- Editors notebook: The First Amendment under threat in Tennessee - Tennessee Lookout - October 15th, 2025 [October 15th, 2025]
- U.S. news organizations reject Pentagon reporting rules, say they undermine First Amendment - The Globe and Mail - October 15th, 2025 [October 15th, 2025]
- Why free speech rights got left out of the Constitution and added in later via the First Amendment - The Fulcrum - October 15th, 2025 [October 15th, 2025]
- California Wants To Punish Social Platforms for Aiding and Abetting the First Amendment - Reason Magazine - October 15th, 2025 [October 15th, 2025]
- Hegseths First Amendment war: The press is correct to walk away from ridiculous Pentagon pledge - New York Daily News - October 15th, 2025 [October 15th, 2025]
- The First Amendment is fading and we are letting it happen - Talon Marks - October 15th, 2025 [October 15th, 2025]
- Friday Oct. 17 12:30pm-1:30pm Zoom event: Trump, the Media, and the First Amendment - Reason Magazine - October 15th, 2025 [October 15th, 2025]
- California wants to make platforms pay for offensive user posts. The First Amendment and Section 230 say otherwise. - FIRE | Foundation for Individual... - October 13th, 2025 [October 13th, 2025]
- 'Retaliation For Protected First Amendment Activity' - NASA Workers Union Sues Trump Over 'Unlawful' Effort To Strip Collective Bargaining Rights -... - October 13th, 2025 [October 13th, 2025]
- We took the freedom of speech away: On First Amendment, Trump says quiet part out loud - MSNBC News - October 11th, 2025 [October 11th, 2025]
- Opinion: Why NPRs dispute with CPB really is about the First Amendment - current.org - October 11th, 2025 [October 11th, 2025]
- Jane Fonda Helps Revive Committee For The First Amendment - Honolulu Civil Beat - October 11th, 2025 [October 11th, 2025]
- Pastor shot in the head by ICE agents sues Trump administration over First Amendment threats in Chicago - the-independent.com - October 11th, 2025 [October 11th, 2025]
- Are KY mans Halloween decorations protected by First Amendment? What experts say - Lexington Herald Leader - October 11th, 2025 [October 11th, 2025]
- National Review : The First Amendment Applies to the Doctors Office, Too - Pacific Legal Foundation - October 11th, 2025 [October 11th, 2025]
- Are College GameDay Signs Protected by the First Amendment? - Freedom Forum - October 11th, 2025 [October 11th, 2025]
- Kirk, Kimmel and the First Amendment | Letter to the editor - Mercer Island Reporter - October 11th, 2025 [October 11th, 2025]
- Jimmy Kimmels First Amendment right to be annoying | Andrew D. Hayes - MassLive - October 11th, 2025 [October 11th, 2025]
- Muslim activists cite First Amendment as defense for vandalizing Texas church with anti-Israel graffiti - Christian Post - October 11th, 2025 [October 11th, 2025]
- When Conversion Therapy Meets the First Amendment: A Landmark Case Before the U.S. Supreme Court - ZENIT - English - October 11th, 2025 [October 11th, 2025]
- Your right to know: What the First Amendment really says about freedom of the press - The Laconia Daily Sun - October 11th, 2025 [October 11th, 2025]
- A Matter of Fact: The gift of the First Amendment - 9News - October 11th, 2025 [October 11th, 2025]
- Rutherford Co. teacher fired for comments about Kirk files First Amendment lawsuit - The Daily News Journal - October 11th, 2025 [October 11th, 2025]
- Why free speech rights got left out of the Constitution and added in later via the First Amendment - The Conversation - October 9th, 2025 [October 9th, 2025]
- Mary Rose Papandrea Installed as Burchfield Professor of First Amendment and Free Speech Law - GW Today - October 9th, 2025 [October 9th, 2025]
- Supreme Court Weighs First Amendment Challenge to Colorados Ban on Conversion Therapy for Minors - Law Commentary - October 9th, 2025 [October 9th, 2025]
- 'We took the freedom of speech away:' Trump on flag burning protection, First Amendment - USA Today - October 9th, 2025 [October 9th, 2025]
- Jane Fonda heads celebrity-organized Committee for the First Amendment - The Tufts Daily - October 9th, 2025 [October 9th, 2025]
- Pastor shot in the head by ICE agents sues Trump administration over First Amendment threats in Chicago - The Independent - October 9th, 2025 [October 9th, 2025]
- CAC Release: Colorado Banned Conversion Therapy Because It Is Harmful. That Conversion Therapy is Accomplished Through Speech Does Not Make Colorados... - October 9th, 2025 [October 9th, 2025]
- Board of Health gets updates in wake of First Amendment audit controversy - Hopkinton Independent - October 9th, 2025 [October 9th, 2025]
- A new lawsuit claims the federal government is infringing on first amendment rights | First Listen - NPR Illinois - October 9th, 2025 [October 9th, 2025]
- Letter to the editor: Beware of abridgement of the First Amendment - The Independent Record - October 9th, 2025 [October 9th, 2025]
- NPPA raises First Amendment concerns over largest drone flight ban ever issued in US - Editor and Publisher - October 9th, 2025 [October 9th, 2025]
- Why free speech rights got left out of the Constitution and added in later via the First Amendment - EL OBRERO | Periodismo Transversal - October 9th, 2025 [October 9th, 2025]
- Cancel culture is undermining the First Amendment and the press is helping | Column - Tampa Bay Times - October 7th, 2025 [October 7th, 2025]
- Charlie Kirks Death Has Created New Debates Around The First Amendment - Religion Unplugged - October 7th, 2025 [October 7th, 2025]
- FBI Cuts Ties With Southern Poverty Law Center, Anti-Defamation League After Conservative Complaints - First Amendment Watch - October 7th, 2025 [October 7th, 2025]
- How Unique is the First Amendment? featuring Floyd Abrams Harrington School of Communication and Media - The University of Rhode Island - October 7th, 2025 [October 7th, 2025]
- Apple and Google Block Apps That Crowdsource ICE Sightings. Some Warn of Chilling Effects - First Amendment Watch - October 7th, 2025 [October 7th, 2025]
- Iconic First Amendment Attorney To Offer Forecast 2026 Keynote - Radio & Television Business Report - October 7th, 2025 [October 7th, 2025]
- Opinion: Local journalism is too important to give up on, and the First Amendment is too important to surrender - Anchorage Daily News - October 7th, 2025 [October 7th, 2025]
- The Trump administration is waging a systematic assault on First Amendment - The Durango Herald - October 7th, 2025 [October 7th, 2025]
- Press, protesters sue Trump administration over First Amendment violations at ICE facility in Broadview - Yahoo - October 7th, 2025 [October 7th, 2025]
- SCOTUS To Consider Whether Conversion Therapy Bans Violate First Amendment - GO Magazine - October 7th, 2025 [October 7th, 2025]
- California educators First Amendment rights face test in wake of Charlie Kirks killing - EdSource - October 4th, 2025 [October 4th, 2025]
- Reagan-Appointed Judge Calls Out Trumps Full-Throated Assault on the First Amendment - Democracy Docket - October 4th, 2025 [October 4th, 2025]
- Federal judge overturns part of Fla. book-ban law, drawing on nearly 100 years of precedent protecting First Amendment access to ideas - Middle... - October 4th, 2025 [October 4th, 2025]
- Senators Blumenthal and Warren on First Amendment and the FCC - C-SPAN - October 4th, 2025 [October 4th, 2025]
- A Word From Legal: Social Media, the First Amendment, and You - Maryland State Education Association - October 4th, 2025 [October 4th, 2025]
- League of Women Voters spotlights First Amendment - Midland Daily News - October 4th, 2025 [October 4th, 2025]
- A grave dancing teacher tests the First Amendment in San Jacinto public schools - Orange County Register - October 4th, 2025 [October 4th, 2025]
- Clemson University being sued, claiming the school violated First Amendment - WLTX - October 4th, 2025 [October 4th, 2025]
- First Amendment invoked in bid to demolish Holy Cross Catholic Church. Here's what historic board decided - IndyStar - October 2nd, 2025 [October 2nd, 2025]