Public Health Law Watch
An initiative of the George Consortium

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Amicus Brief to U.S. Supreme Court in Expressions Hair Design v. Schneiderman

In 2016, several New York businesses sued the state, claiming that a law prohibiting them from posting about and charging a fee for credit card transactions was an unconstitutional restriction on commercial speech.  The lower court disagreed and the U.S. Supreme Court agreed to hear the case.  As “Constitutional, Administrative, Contracts, and Health Law Scholars,” several George Consortium members filed a brief in support of the state. They highlighted that such commercial conduct being treated as speech protected by the First Amendment threatened “vast swaths” of regulations, including longstanding health, safety, and consumer protection laws.  In 2017, the Supreme Court issued a relatively narrow ruling, holding that the New York law did regulate speech and therefore implicated the First Amendment.  But the Court sent the case back to the lower court without determining the appropriate level of scrutiny to apply. 

Read the brief here.

Summary by Elisabeth J. Ryan