Noah Feldman, Columnist

Cash Discounts, Credit Surcharges and Free Speech

The Supreme Court considers whether states can regulate how a price is described.

January 10, 2017 at 7:10 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Choose wisely.
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In New York and nine other states, merchants are barred from charging credit-card purchasers a surcharge, but are allowed to offer discounts for paying in cash. The U.S. Supreme Court on Tuesday took up the fascinating question of whether this requirement violates the merchants’ freedom of speech.

It’s a juicy constitutional question: Are prices subject to the First Amendment at all? And it sweetens the pot with an intellectual problem in law and economics: Given that we know customers react differently to surcharges and discounts, even when they’re economically equivalent, should the state be allowed to ban one and require the other?