we'll hear argument first this morning in case fifteen thirteen ninety one expressions here design versus schneiderman mr chief justice and may it please the court this case is about whether the state may criminalize truthful speech that merchants believe is their most effective way of communicating the hidden cost of credit cards to their customers by design new york's law suppresses the message that your two groups of  s one wants to just give a cash price without any information about the surcharge and the other i thought wanted to give two separate prices so let everybody doesn't want to give truthful information about the search know they do you're under they all want to do the same thing i think what you're referring to is that some of them are doing different things now one of the petitioners expressions hair design is engaging in dual pricing the charging two different prices one for cash one for credit but they're trying as hard as they can to describe that as a as a discount so that they comply with the law the other petitioners right now are refraining from due and pricing all together because they don't want to run the risk of failing to comply with this regime adversary can to me well to get to what speech precisely do you think is being restricted the message that when you use a credit card you're paying more and to be more precise i think if you look at joint appendix one o three through one of four you'll find there the declaration supplemental direct declaration of expressions here design where they say exactly what they'd like to do and if you look at the yellow brief it's page one of the yellow brief we have a chart and what we'd like to do ideally is described the pastrami sandwich as ten dollars and then tell you that it's going to cost a certain percentage more two percent more to pay with a credit but i guess that's why i said like what speech precisely and you said the message that you're going to pay more if you use a credit card but you know as this this statute is not written in terms of speech it's written in terms of imposing a surcharge and let's say that somebody let's say that there is a merchant and the merchant charges the list price for something as a dollar and a person comes up to the cash register and offers a dollar bill and and and the cashier says oh no for you it's ninety five cents because i impose a surcharge for people who use credit cards right now would that  because the reason it wouldn't violate the law is because the conduct is you know fits the law right that essentially you're not imposing a surcharge on credit card users whatever you call it however you describe it you're not imposing a surcharge on credit card users well i think the way this law works is that you can engage in precisely the same conduct you can charge the two different prices one for cash one for credit and what runs afoul of the law is describing the price difference one way as a surcharge versus credit you know that's if you keep you said that again and i think my hypothetical was designed to show that that's just not right i mean i can imagine ways in which you might say that this is restricting speech but that's not it because as long as the price listed is the higher price is the price that a credit card company has to pay as long as that's true you can describe it any which way you please and you can describe it in terms of impose of of opposing a surcharge or charging credit card customers more and it still is not going to violate this law i don't think so justice kagan and i think in your hypothetical it's an it in your hypothetical the the merchant hasn't telegraphed to the consumer at the same time the two prices right that's not what our clients want to engage in if if new york wants to continue to enforce this statute against deceptive practices were false advertising we have no problem with that this is an as applied challenge and the merchants in this case want to engage statute says is you can't impose a surcharge very well you can't write and you want to know what's that got to do with speech i grant you all business activity takes place through speech so explain to me what it's got to do with speed and i agree if you look at this statute it doesn't scream first amendment probably not only doesn't it scream it i want to know unless you want to say whenever a businessman is regulated in what he can do or she is right that violates the first amendment or at least potentially because they do it through speech right but this is a regime that says you are allowed to call it a surcharge you just can't call it a discount and the enforced i don't see that in the statute most of my statute that i reading says you can't charge a surcharge well but you can charge a discount i know paul mcavoy i hate to bring up these long gone names but he was an economist with whom i wrote a book and he would have said what you said that well a discount and a surcharge are the same thing economically but we live in a world that not everybody's an economist and many people think it's quite a different thing and there are a lot of studies in this thing with the got you know that it was a different thing certainly what they can do right certainly consumers react to the way price information is communicated not in the way you have a regular price if you go above the regular price it's a surcharge if you go below the regular price it's a discount but in this in this case both sides agree the way the regular price is is defined is in relation to how you communicate that look at page twenty eight of the red brief they define regular price based on how it's communicated i think both sides come to this case with two propositions that they agree on we all agree that the regulation of prices that the kind of price regulation you're talking about just as briar is economic conduct that doesn't implicate first amendment concerns we also agree we also all agree and know from virginia board that communicating price information to there is a dual price regime some consumers are going to pay more some consumers are going to pay less right and in her hypothetical she says the sticker price is the higher price and then when the cash purchaser comes to the cash register the purchaser gets a pleasant surprise no you are going to be charged less but i thought your argument was that this if that is the correct interpretation of the statute and i don't really know what this statute means and we don't have that definitive interpretation but if that is the correct interpretation of the statute what new york state has done is to force the merchant to say to post a particular sticker price namely the higher sticker price as opposed to the lower sticker price so that is mandated speech isn't that your argument i think if new york it's not mandated speech in the sense they haven't told us precisely what to say well under that interpretation if it's ok to post the higher price and nothing more and the higher prices the credit card price they are if they are forcing the merchant to speak in a particular way i think what they're doing is they are they are forcing the merchant to speak in a particular way in the sense that you have to characterize the price difference a certain way in order to comply with it you know mr got it with this exchange i mean i think that these are two very different theories of what makes this a speech restriction and i guess the reason i asked my question was because justice alito stary does not appear to be your theory and i want to know which theory we're really talking about here justice alito is theory is that when the legislation says you have to post the higher price that that in itself is a restriction on speech and that's an interesting argument and maybe he's right about that i don't know now you were briefed took a different position your brief essentially said the problem is that this this this legislation affects the way a cashier or somebody in a store just affects it affects the way they describe transactions generally you know in the cashier is going to be worried that she can't say to the customer you charge more if you use a credit card and i guess i wanted to know which theory is your theory i think our theory is what you just described just just a leader not wrong that if it would certainly implicate first amendment concerns if the if the state were to say here's how you have to display your prices but justice kagan i did not sure what you or anybody saying about the statute or what it means that now because it's necessarily big i just still see anything about speech in the sense of well the statu simply says no so there isn't any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash check or similar means to me it's very one price for everything well just as you walk in i mean forget about that i don't know where they get the discount from or that the statute permits that because what it says on its own its plain terms is one price and used to justice prior that that was ok certainly would be i'm hard pressed to see if that's the interpretation given to you is the plain meaning of the sta that that would be unconstitutional but but this is not a statute that functions in a vacuum right and in the other states that inactive statutes at the same time some of them put in their text a surcharge is ok surcharge is not ok it didn't is not ok new york didn't but it but everyone has agreed that it has been interpreted in parallel with those statutes well then it's a really nice agreement except the state below had two different interpret the put the state has never wavered from its interpretation that framing the price differences as a discount is perfectly permissible under this regime and you don't have to take my word for it a look only at the text of the statute you can look at the way it's been enforced so the statute was enacted in the one nine hundred eighty s a few years thereafter there was the first reported criminal prosecution under that statute and in that case a gas station owner had the posted prices cash and credit but the what what caused the criminal prosecution is that the cashier made the mistake of describing the price difference as a nickel more for using a credit card rather than a nickel less for cash it was of that speech and that speech only that triggered the criminal prosecution and the prosecutor in that case and the judge all agreed that's what the stat that that's what the state's going to tell me that is the most credit since then you're going to be prosecuted for that well the state can try to run away from the enforcement history but i think it would be very difficult to run away from the most recent in for some history the state went after fifty or so merchants in two thousand and eight and two thousand and nine there were sweeps you have in the join appendix declarations for merchants who are caught up in that sweep the lawyers the trade association had and what happened in all of those cases was that somebody called up on the phone from the attorney general's office pretending to be a customer and they said what are your prices and those merchants said well it costs you know say ten dollars to buy the heating oil and then a you know this many cents more to pay with a credit card and that was the only speech that they engaged in the they disclosed their prices there's nothing deceptive about that and they were process they were they were targeted by the attorney general's office and then they asked the attorney general how do we comply with this statute and you'll find that a joint appendix one o seven the attorney general's office didn't say disclose the total credit card price they said you have to frame it as a discount you can charge more all you want and i think that shows that this speech is regulating nothing this is actually regulating nothing that suits your argument depend upon the fact that there is no difference from the consumer's perspective if he sees this product is one hundred dollars committed buy it and then he gets to the cash register and there's a surcharge you know it's one hundred three dollars and it's one hundred dollars he goes to the cash register pays cash and they say we're happy you it's ninety seven time i think it's really important to understand that this is an as applied challenge and the only thing we're challenging is the application of the statute to merchants who want to simultaneously prominently disclose both the cash price and the credit card price but want to frame the credit card price as a surcharge anything else is not within the scope of our as a plan i will tell you i wonder if you're under your argument it's one of us and i understand you say well that's it's not this case but under your argument how would you analyze  the hypothetical device i think if the state wants to have a regime where they think it's a deceptive practice because he wasn't telling people the higher price or the the price difference at the same time and that people are hoodwinked or there's bait and switch they're perfectly free to do that it's odd that there's a a criminal regime in this case and false advertising law certainly makes it possible to do that anyway but if the state wants to enforce this statute that way we have no problem with that they can continue to do that if you look at joint appendix one forty four you'll see an example of a bait and switch scenario like that the odd thing there is that the state didn't invoke its section five one eight the no surcharge statute they invoked the false advertising statutes which would suggest that this statute has something else in mind and i must say when i first read this statute without knowing anything about the background with a federal statute or reading the briefs or the second circuit opinion i interpreted it the way justice under my order that it mandates a single price now that may be a an uninformed interpretation but i feel somewhat uncomfortable about wooing on the constitutionality of the statute without knowing how the court of appeals in new york court of appeals would interpret the statute so why should we certify that question of interpretation to that court before we plunge into this first amendment issue well the stayed of new york didn't ask for certification below believe it or not you know more about the new york statute than you know about any of these statutes and the other courts that have confronted the florida statute the california statute they had no problem striking them down without an enforcement history they all have been understood to mean the same thing and i think you know what you said with this court said and surreal is that plaintiffs in a first amendment challenge have a right to prompt  adjudication despite ambiguities in state law and so this court used to abstain in first amendment challenges where there was some ambiguity in state law i think the modern trend in this court's cases has been to take a crack at it and you know you have the enforcement history you know what the statute means on the ground if you had a content neutral statute and the state were enforcing it consistently in a content discriminatory way you wouldn't say well we don't know what the statute means you can't challenge that in effect when you bring in as applied challenge you're bringing a challenge not just just some words in a statute book but also to the way that the statute is being enforced and the injunction in an as applied challenge would look the same whether you conceptualize that as a challenge to the that they have a church orange is that what it is is that the problem you clearly did say you can do exactly the same thing exactly they said you can charge all you say do exactly the same yesterday didn't they say you can have a discount they said you can charge and we are going to apply them speedy determination not as applied you know across the board there are lots of protective things and we're diving headlong into an area called price regulation it is a form of price regulation and price regulation is goes on all over the place in regulatory agencies and so the word that i fear begins with an l and ends with an r it's called lochner and there we go using the first amendment as a tool to get out price regulation that in forcers will sometimes say the wrong thing ok so that's a very general question but if you want to know what's worrying me that it is justice breyer i understand the concern i think it's a serious concern but it's not a concern at issue in this case and that's because this is not price regulation this is the regulation of how prices are communicated and i think that the joint the declaration in the joint appendix shows you that when the when the state says to someone you can charge more all you want you just have to call it something different that's the price regulation that's the regulation of how prices are communicated and i think here's the test justice breyer if you want to figure out because we all agree that virginia board is the law right communication of price information is protected by the first amendment we also all agree that price regulation is economic conduct so you ask can you come into compliance with the law simply by changing what you say without changing what you charge and that is the scenario here that's exactly what the state told those merchants they said you don't have to change what you charge charge the same thing mr green what you sir put in really a lot of emphasis on a few cases in which prosecutors described the law in a certain way but the law as written doesn't really do any of the things that you're saying i mean justice alito is right the law is written actually can be read and just sotomayor said this before as just requiring a single price and that's something that none of the parties here say but if you just look at the lot that's what the law says right and let's take that out of the picture even then the law can say the only thing that we are requiring is that you list the higher price that's the only thing that we're requiring and then you can describe what you're doing any way you like you can use the word surcharge you can use the word more you can use the word less you can use the word discount it doesn't matter so long as you list the higher price you're in the clear and that too is very different from what you're saying maybe from what the prosecutors said but just the way means on the ground and we have if the state agrees we have a credible fear of prosecution if we if we say what we want to say so there's no dispute about that that document fifty one in the district court they conceded that if we say what we want to say we could be prosecuted tomorrow that shows there's a case in controversy about whether we could be prosecuted for truthful speech if there you have a say in its brief that that's not the case that you can say what you want to say that you can call this a surcharge that you can  communicate in the way you want to communicate as long as you're listed price is the is the credit card credit that makes it impossible i mean that makes it impossible to frame the prices for charge because that make that normalizes the credit card pricing makes that the baseline price and that effectively defines away a surcharge and that's been the the purpose of this the federal constitution i think the the federal law was unconstitutional to we don't have to win that fight to win this case in writing i also there were not in the end the reason is the federal trade commission the federal reserve board and the consumer groups all opposed that regime because they thought it hid the cost of credit from consumers there was never any enforcement but you can look in the  refit pages eleven through thirteen we've tried to lay out how that regime worked and i don't think it is the way the solicitor general has characterized it you cannot find any regulations from the time that the federal regime was in effect that said all you have to do is list the words can they do that under this statute is that you know there is federal legislation that says that it is a violation of the statute to have private ordering that forbids a discount and that's why what you had just a skins were contract rules that made it illegal for merchants to frame the price difference as a surcharge those contract rules were rescinded in two thousand and thirteen in the face of antitrust scrutiny and that's what led to this litigation if you look at other questions i'm sorry you said something very interesting he said if you take the statute if you understand the statute just mean that the listed price has to be the credit card price that looks like a disclosure regime could you explain that sure i think a disclosure regime would look very different it would it wouldn't be a hidden accidental disclosure regime it would tell you exactly what it was requiring right and you wouldn't have any confusion and then you would have to probably analyze that under souder and you'd ask a few questions is it specifically price precise that merchant merchants have some warning or guidance is there some evidence that it's furthering some anti deception interest we do math all the time we know that we can add the sales sales charge as a percentage of the service charge on a restaurant menu nobody thinks that that's a problem for consumers to do math so why in this one place are they requiring the total price could it be because they want to suppress the message that merchants want to get across is it unjustified or burdensome is it possible for merchants if they have to frame only one price to do it this way or is it going to dissuade them from from getting their message across dollar ninety five with a five percent credit card surcharge and the question is whether the state can require the merchant to specifically identify a price of two dollars and five cents before charging a customer who wants to use a credit card that amount a law like that is very similar to a law that simply regulates pricing or requires a merchant to honor their offers to enter into a contract of the sort that we normally wouldn't think is subject to any first amendment scrutiny we nevertheless think that the requirement that everyone seems to agree is imposed here is best viewed under this court's precedents as a speech regulation because in effect it's prescribing how the merchant communicates an otherwise lawful pricing scheme but to the extent that new york's law like the federal law simply requires disclosure in dollars and cents form of any higher credit card price in circumstances where the merchant has decided to display the lower cash price in dollars and cents form it's a perfectly valid consumer disclosure law under this court's appeals i think much of this feud between the parties is the first twenty five minutes of questioning revealed involves what the new york law actually does under particular circumstances i can answer that question on the assumption that the new york law tracks the former federal law which the only thing the federal law actually did want to trace through the definitional sections was to require as i say as i was saying earlier disclosure in dollars and cents form of a higher credit card price when were say ten dollars cash price ten twenty credit price would be fine option b where it's ten dollars cash price twenty cents or charge per item added to credit card purchases would not be permissible you'd have to actually disclose in dollars and cents form this end to be trend you won't have to say ten dollars or twenty cents correct and then i'd like it in a speech it's not regulating the price because it's the same price whether i could do that now that that is why we think that this is better viewed as a speech regulation under this court's precedents but let me explain why i think it's a reasonable finish this closure see your honor which is ten dollars two percent surcharge would be the same as option b you'd have to actually say ten dollars and twenty cents and then the option d which is ten dollars and twenty cents twenty cent discount for cash purchases is fine because you're disclosing to the consumers the highest possible the price that they would have to pay in dollars and cents for and your understanding of why it is a speech regulation it is because if that's the way you list prices is that right that's right your honor so a lot for example that simply required a merchant who made a particular representation that the price of this item is a dollar ninety five and required that merchant to on and that was all the merchant said didn't say anything about surcharges at all and was simply required the merchant to honor that price when the consumer gets to the cash register that's an economic regulation that's just a regulation that is regulating pricing or contract offers but the the law here i think everyone agrees does something a little bit more in options b in c that i was just discussing with justice sotomayor you can have a price tag that does reveal a the existence of a surcharge expressed as a mathematical formula and the law would say that's not good enough you have to actually listed as a price  requiring an additional disclosure it has to finish off the math problem for the consumers and tell them that the credit card price is ten dollars and twenty cents the reason that's permissible constitutionally unders out of her is that i think it's important to keep in mind the legislators are legislating against a backdrop where there isn't necessarily any specific requirement at all to do even disclose the existence of the surcharge and i think for jews who are just really literally it's a very patronizing approach i mean you're saying in b when it says it's ten dollars cash it's twenty cents surcharge that they've got to do the math and say by the way that's ten dollars and twenty cents and let me explain why you're on i think there are two good reasons why that has to be done first if you are why it's reasonable for i thought it was ten dollars and two cents but i'll think about it i think there are two reasons why it's reasonable for a legislature to decide that if it's requiring a disclosure of the fact that the credit card price is going to be higher it can require that disclosure to be made in dollars and cents form rather than a mathematical formula first a price and go not i thought you were telling me that they that it's not enough even if it's in cash if they say that it's a twenty percent twenty cent surcharge that violates the statu your honor if all they said was ten dollar price and twenty cent surcharge they don't say ten dollars and twenty cents credit card price that as we understand it would be a violation of the federal statute but let me your honor it's not prohibiting them from saying what's an option is being c it's requiring a further disclosure in dollars and cents form i think there are two reasons why because congress or the new york legislature could permissibly require the disclosure to be made in dollars and cents form first that's the most easily digestible form in which people receive prices it allows for easy comparison of prices and doesn't require the consumer to complete a math problem second i think i'm holding my view you're saying that the american people are too dumb to understand that if you say ten dollars plus a twenty cent churchyards they can't figure out that that's ten dollars and twenty cents and the second reason you're on i think addresses that concern which is that there's which is th there's an administer ability concern here is a minister and minister ability concerned once you start allowing mathematical formulas you can get into a debate about when the formula becomes too complicated for your average consumer so you can imagine how much to say ten agree that a percent it is more complicated well let your twenty cents and ten dollars that's not too complicated unless you're taking a very patronizing and condescending view of the capabilities of the american consumer i think your honor under souter congress or new york legislature is entitled to draw clear lines i think it becomes more complicated if you shop at the store and you want to buy seventeen things than if you're just buying the one thing that increases the complexity of the math problem and it would be much harder to write a law that allows certain formulas but not certain other formulas you could imagine a store that says if you buy in here are prices in cash or if you buy an item in credit we're going to charge you a surcharge equal to the a percentage that is the fifth digit harder math problem of the sort that justice kagan supposed and again you could also be buying many items at once you could have only a certain amount of money that you want to spend and have trouble figuring out what you're going to be able to fit under that budget and i think you would send it makes for comparison pricing much easier but it can ask you a different question it does this does not look like a disclosure requirement it's just i mean one way to understand this is exactly what you said it requires disclosure whether everybody needs that disclosure whether only a few people need that disclosure in the ten dollar twenty cents case that requires disclosure to make sure that everybody is on the same page in terms of knowing prices but if you look at the language of the statute it just doesn't look like that and and if we're going to say that something's a disclosure requirement and so subject to a lesser form of first amendment preview shouldn't the state be making clear that that's what this is you're marri justice your honor i think the best thing for the court to do here is the federal law was clear i think you can use the federal law is kind of a baseline for discussing the issue remained of the second circuit and allowed for the new york court of appeals to have a definitive interpretation of the law because there's clearly some dispute about what the new york law does thank you counsel too mr chief justice that may have pleased the court the plain text of new york statute refers only to a pricing practice and not to any speech the statute prohibits the seller from imposing a surcharge on a customer who elects to use a credit card for sellers that list a single price as nearly all sellers do the application of the statute is straightforward the seller may not add to its listed prices and instead must adhere to those prices if a customer decides to pay by using a credit card and  just ask you a preliminary question about the division of litigation authority in new york state does the attorney general or the solicitor general have the authority under new york law to bind all of district attorneys in the state to an interpretation of the statute and has the attorney general issued an official interpretation so that all the district attorneys will be required to and to enforce this in the same way so the attorney state there are there are many there are many so you tell us how you interpret this but how do we know how all of these other district attorneys are going to interpret the statute they may interpret it differently well i don't think fundamentally there should be a debate about the statute here and and it's because a plane reading of the text here means reading what it means to impose a surcharge but you know that there does seem to have been a debate about what the statute means because i look at some of this and for some and history and i think i don't really understand why this violates that law and in fact you've walked away from some of that enforcement history in your briefing and said look the cashier can call it whatever she wants to call it as long as the listed price is the credit card price but that is contradict in some of this unfortunate history where different understanding of the slow was used so how do we deal with that just as kate and i disagree that we are walking away from the enforcement history here i think if you actually look at what the enforcement history looks like especially from the attorney general's office that it confirms sort of the plain reading of the statute in a single price scheme and the heating oil company example i think is the clearest one in each of those cases when the investigator from our office called up and asked what is your price they were given a single dollars and cents answer you know on page one hundred six of the joint appendix they asked parkside oil how much is a gallon of oil and they said three dollars and forty five cents and it was only when the investigator said i'd like to pay by a credit card but at that point the oil company representative said i'm going to impose a surcharge of an extra five cents per gallon set on top of the previous price and i think that pricing practice reflects the commonsense understanding of the word surcharge which is an addition one hundred dollars that is lawful that's that's that's correct i mean if the heating oil representative then it's a matter of how the pricing structure is communicated and what speech well i mean let me respond in this way which is of course the definition or the determination of whether there's a surcharge will look back to the seller's original pricing practices that because that's the meaning of a surcharge is a difference from some previously conveyed price but the first amendment doesn't prohibit the state from using a previously conveyed price as a base example they said it's one hundred three dollars is it one hundred dollars and that's because we impose a surcharge would that be lawful that that would be fine i take that to be similar to justice kagan's example about the one dollar charge for a cup of coffee with with a with a description of a surcharge and the statute does not prohibit that scheme because at the end of the day listed price which is in that case conveyed over the phone is the same as the price charged to a credit card customer reply brief example is the same as the solicitor general's office and you have a concern the way it is that this statute could be read more broadly so we are answers are the same as to the fo examples there and we do not think it is read more broadly i mean one thing that is crystal clear from the legislative history here is that new york intended to carry out the same policies and same purpose as the federal statute that had just lapsed and the same history is present in all the other states have adopted a similar then why did well new york and new york adopted this against the backdrop of a lot of consideration of the federal level why did it not adopt the federal definitions i can't answer that question because nothing in the l statute well the vast majority of them did not adopt the federal definition as far as i'm aware only massachusetts adopted the federal definitions and there are some exceptions where some of the statutes actually have a separate definition of a surcharge which is just the plain meaning definition that we have adopted here which is in addition to a previously disclosed or regular price and so all of these statutes are really should be used we think reb similarly here well if i had the authority to interpret the new york statute which i really don't and i saw that they copied part of a prior statute but they deliberately omitted it other parts of the prior statute i buy would be tempted to infer that they had a reason for omitting the definitions and that was that they didn't want to be bound by that so they wanted something different i don't think there's anything in the history that would support that interpretation justice alito and i will just say part of the reason that they may not have felt it necessary was because just as the federal statute originally did not have these definitions for a period of many years the legislature may have believed that the ordinary meaning of a surcharge is obvious enough that they didn't need the clarifying definitions of the federal  statute i think it does hide the cost but has nothing to do with this too i think that the reason we're having so much trouble is because it's so difficult but not impossible to distinguish between surcharge and discount and if you want to distinguish and they are different words are very helpful they're evidentiary but what we're after is not the words they're  but that's all almost we have three the fact that you have the questions you've had and both sides of the bench have had such trouble with this to me is strong evidence that the court should stay out of this under normal first amendment standards because if we don't we are going to discover all kinds of price regulation all over the place that suffers to greater or lesser degrees from this kind of problem and you'll have judges all over the country substituting for regulators and others in trying to regulate that's where i'm coming from now you tell me how to do it well that is you tell me given precedent et should we overrule or what should we narrow if as i believe is true these regulatory areas are areas that are not normal first amendment tough you can't do it principles apply we conforms might because it applies everywhere in a sense but it used to be rational basis it used to be rational basis but water is flowed over that they are under that bridge or wherever and so i want to know your best thinking on what would you would do in terms of trying to write a rule of law that would favor you i think of two responses to that i mean the first goes back to the text of the statute and recognizes that this statute is not phrased in any way that touches on what we would ordinarily think of as speech in contrast to for example the statute in the middle of its case which talked about regulating the advice that a debt relief agency would give asking me to take a lot of steps which is start with the language of the statute ignore it and go to a federal statute and apply its definitions how many of them you haven't quite tool to me how you differ and you haven't quite told me and what i'm going to assume the federal definitions apply even though none of them are used here so i'm i'm very confused why you're starting your answer to justice briar by saying look at the statute and see what the words of the statue are doing well if i could get to that in just one second and finish the answer to justice briar's because i price which i agree to have a free choice about then its ability to change that price for someone who uses a credit card is constrained and i think this is easiest to understand the scope of a single transaction you walk into a store they give you a menu with a list of prices for their food those prices are in large part unadorned by any conditions about when those prices apply and you know in the course of that transaction between when you sit down and when you pay the bill that those prices will be the prices charged to you even if at the end of the transaction you take a credit discounts etc but i think those actually support our point here because what do those price adjustments apply to and at the end of the day new york's position under the ordinary definition definition of a surcharge is all of those adjustments apply regular or starting price the list of a good or prada mean here is the the narrow way in which this seems to affect communications speech i'm a seller i set my prices i say i want to charge cash customers a dollar and i want to charge credit card customers a dollar five all right now if i put my list price is a dollar five and then the cash customers get a happy surprise that seems fine but if i put my list price as a dollar and then the credit card companies get a not so happy surprise that can't be done so it does affect the way a seller communicates which price he's going to say is the regular price is the list price so why isn't that a speech regulation they might say as the solicitor general does it is a speech regulation but it's only a disclosure regulation and subjects to a lower standard but you are saying it's not a speech regulation at all and i want to know why given that it is a fact in which price you choose to say is your list price so even if it does affect what a seller doesn't that case it's only because the list price is being used as evidence to support whether an imposition whether a surcharge has been imposed later and it's perfectly pretty under the first amendment for conduct to be defined in relation to previous acts of speech you know conduct can be initiated evidence or carried out through speech and the first moment doesn't bar a state from regulating it in that way and i'll just use a couple of examples that i think make this clear under a statute that says the seller shall add here to a previously advertised price that regulation  united states says is an economic regulation would be susceptible to the same analysis if somebody wants to charge one hundred dollars they know that what they have to do is list one hundred dollars in their advertisements or in their stores the countless ninety eight dollars or ninety five dollars or ninety dollars and a similar example comes from this course decision in rumsfeld versus fair which recognizes that part of determining whether law schools had improperly excluded military recruiters from kept this might be looking at the contents of e mails or notices or other evidence of the underlyin conduct of exclusion and that's the only way that a seller's prices are being used here it's being used as the benchmark to determine whether the seller has engaged in the unlawful conduct of increasing a previously disclosed price now why this is clear under the statute getting back to just a sort of my last question is in part because of the posture of this case we have a set of petitioners here who are bringing as as their counsel has an egg knowledge and as applied challenge and if you look at the conduct that they want to engage in here there is no ambiguity about what they think is the baseline a regular price all of that a part of pose that a business makes a point of its reputation if it is meeting all prices we meet prices and there an option where all the surcharges are permitted and surcharges are are disclosed then the state and to the seller and in this state says you know we will charge the lowest price we will meet the price but we add three cents for credit cards and because that's difficult to enforce all of our prices are increased by three percent for everybody because of the difficulty of applying surcharges in some cases that will i think it probably would be deemed to be a credit card surcharge in that case i was you know court has addressed that specific question that's not presented by any of the petitioners here and i don't mean to be a base of about it i  think that's an important point because in an as applied challenge the relevant question is whether the statute can be applied to what the petitioners want to do and none of them want to engage in these complicated pricing schemes all of them seem to be on the action plus just this is so complicated doesn't that indicate the statute as it does not because under the vagueness doctrine under the due process clause as long as that of course out of cases that people can understand and that's enough to sustain and especially when it is clear how would it would  set of prices a single set of prices for each of their goods and services and then collect an additional man on top for for a surcharge now it might be the case that other petitioners or other pointers what engage in more complicated pricing schemes but the proper way to resolve those questions is in future as applied cases if and when they arise and one of the things that we can say from the enforcement history here is it's deeply unclear whether those cases will arise sellers first have to engage in those   think that's what you're saying that's right one of them in this you're saying this is how they advertise but that there's a further disclosure that when a customer calls up the gas station the gas station can't do any one of these were things and potentially other things too right i don't think that's our argument and i should clarify i do think some of these schemes are are not ok in the sense that you couldn't impose a credit card surcharge under some of these boxes  but if i understand your question correctly we are not i know what i'm saying if we say it's ok but i know you're claiming that but but but but one point i want to respond to is the idea that what somebody says over the phone here can affect the underlying price structure right and we treat the phone calls including the phone calls and the enforcement history here as just evidence of what the underlying prices are in the same way that a printed placard itself although an act of communication what itself be evidence of the underlying prices and there them and says i'd like to buy that with a credit card it might happen today i have but i have never seen anybody under than me buy anything with cash but that would be a violation if they put the one dollar there on the assumption that everybody is go cash for their lemonade the these are tech savvy kids so they can could process a credit card purchase of they want it the statute has no exemption for kids selling lemonade i think i think  there could be lots of regulatory rules that affect how the energy company presents the pricing of selling it or about element including if i think that in all these areas of the correct first amendment standard is rational basis nothing stronger how then do i distinguish the cases which you've talked about how you what you say in  because after all even if it's just evidentiary this statute does affect what people say as to price so if in fact i need this legal distinction here to get  i think the first amendment is driving out with your best effort well they affect only what you say about prices that incident to preventing you from engaging a certain price in practice in the first instance and i think this is that it stinks in this court has drawn in cases like virginia state board of pharmacy i mean that's a case about price advertisements but the understanding there is that the advertisements are describing an underlying price that would be applied for instance if a consumer walked into a pharmacy and wanted to buy a prescription drug and  case is about that consumer transaction the descriptions of the prices are incidental to the regulation of the underlying consumer transaction and the price that the seller may impose here and i think the point about the other regulations that may apply is also an important one in a in a couple of respects i think the most important point of these other regulations is that they demonstrate that there are multiple ways in which the legislature or congress can address what happens to a default or regular price and they all operate in tandem the legislature could for instance say you can't do a credit card surcharge as here they can also say you can increase your prices or a car rental agency if you add an additional driver or if you have a car seat and all of these would operate on the same underlying price structure thus starting point for all of these as we've of a credit card purchase well it's not suppressing the actual costs of a credit card purchases only preventing well i'll say two things at most that is preventing one way of conveying a credit card price but the better way to look at it as the government explains is that it's just requiring abstaining on it seems to me that that's quite relevant to this question of whether this is a disclosure requirement because of the dual pricing scheme it's not legal it is really hard to characterize this as a disclosure requirement would you agree with that i think that it would  be but i think it's important to recognize also why the second circuit abstained on this question it didn't do so because it rejected our interpretation of the law which would allow double pricing it did so because it found that the statute was readily susceptible to an interpretation that would allow d pricing because of the clear indications that new york intended to follow the federal statute and so it wouldn't adopt an interpretation that would raise constitutional problems and although although we think this court could adopt our interpretation of the of the state law it would also be fair to recognize that there's no reason to deviate from the federal statute on this friday but i also want to respond to one other point that justice ginsburg had raised which is whether this suppresses information about credit card cost and it does not in this important sense nothing about the statute prevent seller from educating consumers about credit card costs informing them about it talking about it many of the petitioners here do do so broken pharmacy for instance has told its customers not to use credit cards because of the judicial cost that they impose and they remain free to do so under th statute and in an important sense that speech is actually a better and more direct way of advocating about credit card costs in the near imposition of a surcharge you know expressions her design for instance wants to impose a flat three percent surcharged without apparently any further speech here and the difficulty with that as a message about credit card costs is one it doesn't explain why the surcharge is being imposed to it doesn't say that it's being imposed because of a specific thing that was a merchant interchange fee the credit card issuers charge and three it says nothing about the amount of the inter change fee a flat three percent fee actually that bears no relationship whatsoever to the actual costs which range from one point one to two point seven percent that sellers actually and there's nothing when they manage this scheme that addresses that has no disclosure requirement what was your actual critic or charge of verses which are charging that the scheme does nothing to that situation if i could answer just this question that that's correct but i think this supports our point the scheme does solicitor general agrees with us that this is a restriction of speech but posits that the only thing that's left on the is a disclosure rationale that new york abandoned in the courts below and  barely pressing here and the problem with that is that this is a criminal speech restriction and so if your merchant is faced with compliance they've got to know if you think this is a disclosure regime what are we supposed to say and typically a disclosure regime doesn't leave you in the dark about what you have to say the government tells you precisely what to say and souter recognized this problem it said that there are serious constitutional problems if you have a disclosure regime that does not tell the merchant precisely what to say is outer isn't a free pass the government has hypothesized a regime that could exist but if it did exist it would still be subject to some for the first amendment scrutiny and you would have to ask of that regime the question that chief justice roberts asked which is do we think people are too dumb to do math and why in this one context do we think that could it be that it had something to do with suppressing the cost of credit cards thinking thank you counsel the case is submitted