Remember Reed: Might Supreme Court Apply it to Commercial Speech?

The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violates the First Amendment.

Here is why this case matters to local governments: An amicus brief filed on behalf of a number of retailers asking the Court to hear this case and overturn the Second Circuit decision argues that the Court should use this case as an opportunity to rule that strict (almost always fatal) scrutiny should apply to restrictions on commercial speech per Reed v. Town of Gilbert, Arizona (2015). In Reed the Supreme Court held that strict scrutiny applies to content-based restrictions on speech. In the Reed opinion, the Court did not extend its holding to the commercial speech context where states and local governments historically have had more latitude to regulate speech. Continue reading