Expressions Hair Design v. Schneiderman
808 F.3d 118
| 2d Cir. | 2015Background
- New York Gen. Bus. Law § 518 prohibits a seller from imposing a surcharge on credit-card payors.
- Plaintiffs—five NY businesses and owners—sued NY officials, alleging First Amendment and due process vagueness challenges, and a preemption claim.
- The district court enjoined enforcement and held § 518 unconstitutional and void for vagueness in part as applied.
- The court concluded § 518 burdens speech by labeling and urged abstention for broader applications under Pullman.
- The Second Circuit vacated, held § 518 constitutional as applied to single-sticker-price sellers, and abstained on broader applications; remanded for dismissal.
- Background includes history of federal surcharges, cash discounts, and NY’s 1984 enactment mirroring the lapsed federal ban.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 518 violate the First Amendment as applied to single-sticker-price sellers? | Plaintiffs contend the law curtails speech by labeling pricing schemes as surcharges. | New York argues the statute regulates conduct, not speech, and is permissible. | No First Amendment violation as applied to single-sticker-price sellers. |
| Does § 518 raise First Amendment issues outside the single-sticker-price context? | § 518 applies beyond single-sticker-price contexts, harming free speech and overbreadth. | Interpretation should be narrowed; abstention due to unsettled state-law questions. | Abstention and narrow construction; no ruling on broader applications. |
| Does § 518 fail the vagueness test under due process? | As-applied and facial vagueness challenges premised on non-single-sticker-pricing schemes. | Core meaning is clear for single-sticker prices; vagueness avoided by narrowing construction. | Not unconstitutionally vague on its face; abstention on broader reach. |
| Should the court abstain under Pullman on unresolved state-law questions about § 518's scope? | State-law interpretation could resolve constitutional issues; no premature ruling. | Pullman abstention appropriate due to unsettled NY state-law interpretation. | Abstention appropriate; remand to dismiss under state-law construction. |
| Is there a preemption or other merits-based challenge (antitrust)? | § 518 preempts by impeding pricing practices, affecting commerce. | Court focuses on First Amendment; abstention and narrow construction limit reach. | Preemption claim not reached on remand; not central to this decision. |
Key Cases Cited
- United States v. O’Brien, 391 U.S. 367 (1968) (conduct, not speech, when it regulates symbolic acts)
- Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988) (overbreadth and narrowing constructions; state interests)
- Fox, Board of Trustees v. FCC, 492 U.S. 469 (1989) (commercial speech overbreadth doctrine general principles)
- National Ass'n of Tobacco Outlets v. City of Providence, 731 F.3d 71 (1st Cir. 2013) (pricing regulations related to discounts not speech)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (facial challenges disfavored; restraint on overbreadth)
- Pullman Co. v. Richards, 312 U.S. 496 (1941) (abstention when state-law interpretation resolves federal question)