(Slip Opinion)              OCTOBER TERM, 2016                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

                                       Syllabus

       EXPRESSIONS HAIR DESIGN ET AL. v.

   SCHNEIDERMAN, ATTORNEY GENERAL OF NEW

                 YORK, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE SECOND CIRCUIT

   No. 15-1391. Argued January 10, 2017 - Decided March 29, 2017
New York General Business Law §518 provides that "[n]o seller in 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."
 Petitioners, five New York businesses and their owners who wish to
 impose surcharges for credit card use, filed suit against state offi-
 cials, arguing that the law violates the First Amendment by regulat-
 ing how they communicate their prices, and that it is unconstitution-
 ally vague. The District Court ruled in favor of the merchants, but
 the Court of Appeals vacated the judgment with instructions to dis-
 miss. The Court of Appeals concluded that in the context of single-
 sticker pricing - where merchants post one price and would like to
 charge more to customers who pay by credit card - the law required
 that the sticker price be the same as the price charged to credit card
 users. In that context, the law regulated a relationship between two
 prices. Relying on this Court's precedent holding that price regula-
 tion alone regulates conduct, not speech, the Court of Appeals con-
 cluded that §518 did not violate the First Amendment. The Court of
 Appeals abstained from reaching the merits of the constitutional
 challenge to pricing practices outside the single-sticker context.
Held:
    1. This Court's review is limited to whether §518 is unconstitution-
 al as applied to the particular pricing scheme that, before this Court,
 petitioners have argued they seek to employ: a single-sticker regime,
 in which merchants post a cash price and an additional credit card
 surcharge. Pp. 5-6.
2         EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                                  Syllabus

       2. Section 518 prohibits the pricing regime petitioners wish to em-
    ploy. Section 518 does not define "surcharge." Relying on the term's
    ordinary meaning, the Court of Appeals concluded that a merchant
    imposes a surcharge when he posts a single sticker price and charges
    a credit card user more than that sticker price. This Court "generally
    accord[s] great deference to the interpretation and application of
    state law by the courts of appeals." Pembaur v. Cincinnati, 475 U. S.
    469, 484, n. 13. Because the interpretation of the Court of Appeals is
    not "clearly wrong," Brockett v. Spokane Arcades, Inc., 472 U. S. 491,
    500, n. 9, this Court follows that interpretation. Pp. 6-8.
       3. Section 518 regulates speech. The Court of Appeals concluded
    that §518 posed no First Amendment problem because price controls
    regulate conduct, not speech. Section 518, however, is not like a typi-
    cal price regulation, which simply regulates the amount a store can
    collect. The law tells merchants nothing about the amount they are
    allowed to collect from a cash or credit card payer. Instead, it regu-
    lates how sellers may communicate their prices. In regulating the
    communication of prices rather than prices themselves, §518 regu-
    lates speech.
       Because the Court of Appeals concluded otherwise, it did not de-
    termine whether §518 survives First Amendment scrutiny. On re-
    mand the Court of Appeals should analyze §518 as a speech regula-
    tion. Pp. 8-10.
       4. Section 518 is not vague as applied to petitioners. As explained,
    §518 bans the single-sticker pricing petitioners argue they wish to
    employ, and "a plaintiff whose speech is clearly proscribed cannot
    raise a successful vagueness claim," Holder v. Humanitarian Law
    Project, 561 U. S. 1, 20. Pp. 10-11.
808 F. 3d 118, vacated and remanded.

  ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, GINSBURG, and KAGAN, JJ., joined. BREYER, J., filed an opinion
concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring
in the judgment, in which ALITO, J., joined.
                       Cite as: 581 U. S. ____ (2017)                              1

                            Opinion of the Court

    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
                                  _________________

                                  No. 15-1391
                                  _________________

EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF

               NEW YORK, ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

           APPEALS FOR THE SECOND CIRCUIT

                               [March 29, 2017]

   CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
   Each time a customer pays for an item with a credit
card, the merchant selling that item must pay a transac
tion fee to the credit card issuer. Some merchants balk at
paying the fees and want to discourage the use of credit
cards, or at least pass on the fees to customers who use
them. One method of achieving those ends is through
differential pricing - charging credit card users more than
customers using cash. Merchants who wish to employ
differential pricing may do so in two ways relevant here:
impose a surcharge for the use of a credit card, or offer a
discount for the use of cash. In N. Y. Gen. Bus. Law §518,
New York has banned the former practice. The question
presented is whether §518 regulates merchants' speech
and - if so - whether the statute violates the First
Amendment. We conclude that §518 does regulate speech
and remand for the Court of Appeals to determine in the
first instance whether that regulation is unconstitutional.
2      EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                     Opinion of the Court

                              I

                             A

  When credit cards were first introduced, contracts be
tween card issuers and merchants barred merchants from
charging credit card users higher prices than cash cus
tomers. Congress put a partial stop to this practice in the
1974 amendments to the Truth in Lending Act (TILA).
The amendments prohibited card issuers from contractu
ally preventing merchants from giving discounts to cus
tomers who paid in cash. See §306, 88 Stat. 1515. The
law, however, said nothing about surcharges for the use of
credit.
  Two years later, Congress refined its dissimilar treat
ment of discounts and surcharges. First, the 1976 version
of TILA barred merchants from imposing surcharges on
customers who use credit cards. Act of Feb. 27, 1976,
§3(c)(1), 90 Stat. 197. Second, Congress added definitions
of the two terms. A discount was "a reduction made from
the regular price," while a surcharge was "any means of
increasing the regular price to a cardholder which is not
imposed upon customers paying by cash, check, or similar
means." §3(a), ibid.
  In 1981, Congress further delineated the distinction
between discounts and surcharges by defining "regular
price." Where a merchant "tagged or posted" a single
price, the regular price was that single price. Cash Dis
count Act, §102(a), 95 Stat. 144. If no price was tagged or
posted, or if a merchant employed a two-tag approach -
posting one price for credit and another for cash - the
regular price was whatever was charged to credit card
users. Ibid. Because a surcharge was defined as an in
crease from the regular price, there could be no credit card
surcharge where the regular price was the same as the
amount charged to customers using credit cards. The
effect of all this was that a merchant could violate the
surcharge ban only by posting a single price and charging
                 Cite as: 581 U. S. ____ (2017)           3

                     Opinion of the Court

credit card users more than that posted price.
   The federal surcharge ban was short lived. Congress
allowed it to expire in 1984 and has not renewed the ban
since. See §201, ibid. The provision preventing credit
card issuers from contractually barring discounts for cash,
however, remained in place. With the lapse of the federal
surcharge ban, several States, New York among them,
immediately enacted their own surcharge bans. Passed in
1984, N. Y. Gen. Bus. Law §518 adopted the operative
language of the federal ban verbatim, providing that "[n]o
seller in 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." N. Y. Gen. Bus. Law
Ann. §518 (West 2012); see also 15 U. S. C. §1666f(a)(2)
(1982 ed.). Unlike the federal ban, the New York legisla
tion included no definition of "surcharge."
   In addition to these state legislative bans, credit card
companies - though barred from prohibiting discounts for
cash - included provisions in their contracts prohibiting
merchants from imposing surcharges for credit card use.
For most of its history, the New York law was essentially
coextensive with these contractual prohibitions. In recent
years, however, merchants have brought antitrust chal
lenges to contractual no-surcharge provisions. Those suits
have created uncertainty about the legal validity of such
contractual surcharge bans. The result is that otherwise
redundant legislative surcharge bans like §518 have in
creasingly gained importance, and increasingly come
under scrutiny.
                            B
  Petitioners, five New York businesses and their owners,
wish to impose surcharges on customers who use credit
cards. Each time one of their customers pays with a credit
card, these merchants must pay some transaction fee to
the company that issued the credit card. The fee is gener
4      EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                     Opinion of the Court

ally two to three percent of the purchase price. Those fees
add up, and the merchants allege that they pay tens of
thousands of dollars every year to credit card companies.
Rather than increase prices across the board to absorb
those costs, the merchants want to pass the fees along
only to their customers who choose to use credit cards.
They also want to make clear that they are not the bad
guys - that the credit card companies, not the merchants,
are responsible for the higher prices. The merchants
believe that surcharges for credit are more effective than
discounts for cash in accomplishing these goals.
   In 2013, after several major credit card issuers agreed to
drop their contractual surcharge prohibitions, the mer
chants filed suit against the New York Attorney General
and three New York District Attorneys to challenge
§518 - the only remaining obstacle to their charging sur
charges for credit card use. As relevant here, they argued
that the law violated the First Amendment by regulating
how they communicated their prices, and that it was
unconstitutionally vague because liability under the law
"turn[ed] on the blurry difference" between surcharges
and discounts. App. 39, Complaint ¶51.
   The District Court ruled in favor of the merchants. It
read the statute as "draw[ing a] line between prohibited
'surcharges' and permissible 'discounts' based on words
and labels, rather than economic realities." 975 F. Supp.
2d 430, 444 (SDNY 2013). The court concluded that the
law therefore regulated speech, and violated the First
Amendment under this Court's commercial speech doc
trine. In addition, because the law turned on the "virtually
incomprehensible distinction between what a vendor can
and cannot tell its customers," the District Court found
that the law was unconstitutionally vague. Id., at 436.
   The Court of Appeals for the Second Circuit vacated the
judgment of the District Court with instructions to dismiss
the merchants' claims. It began by considering single
                 Cite as: 581 U. S. ____ (2017)           5

                     Opinion of the Court

sticker pricing, where merchants post one price and would
like to charge more to customers who pay by credit card.
All the law did in this context, the Court of Appeals ex
plained, was regulate a relationship between two prices -
the sticker price and the price charged to a credit card
user - by requiring that the two prices be equal. Relying
on our precedent holding that price regulation alone regu
lates conduct, not speech, the Court of Appeals concluded
that §518 did not violate the First Amendment.
   The court also considered other types of pricing re
gimes - for example, posting separate cash and credit
prices. The Court of Appeals thought it "far from clear"
that §518 prohibited such pricing schemes. 808 F. 3d 118,
137 (CA2 2015). The federal surcharge ban on which §518
was modeled did not apply outside the single-sticker con
text, and the merchants had not clearly shown that §518
had a "broader reach" than the federal law. Ibid. Decid
ing that petitioners' challenge in this regard "turn[ed] on
an unsettled question of state law," the Court of Appeals
abstained from reaching the merits of the constitutional
question beyond the single-sticker context. Id., at 135
(citing Railroad Comm'n of Tex. v. Pullman Co., 312 U. S.
496 (1941)).
   We granted certiorari. 579 U. S. ___ (2016).
                             II
  As a preliminary matter, we note that petitioners pre
sent us with a limited challenge. Observing that the
merchants were not always particularly clear about the
scope of their suit, the Court of Appeals deemed them to
be bringing a facial attack on §518 as well as a challenge
to the application of the statute to two particular pricing
regimes: single-sticker pricing and two-sticker pricing.
Before us, however, the merchants have disclaimed a
facial challenge, assuring us that theirs is an as-applied
challenge only. See Tr. of Oral Arg. 4-5, 18.
6          EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                          Opinion of the Court

   There remains the question of what precise application
of the law they seek to challenge. Although the merchants
have presented a wide array of hypothetical pricing re
gimes, they have expressly identified only one pricing
scheme that they seek to employ: posting a cash price and
an additional credit card surcharge, expressed either as a
percentage surcharge or a "dollars-and-cents" additional
amount. See, e.g., App. 101-102, 104; Tr. of Oral Arg. 4-5,
18. Under this pricing approach, petitioner Expressions
Hair Design might, for example, post a sign outside its
salon reading "Haircuts $10 (we add a 3% surcharge if you
pay by credit card)." Or, petitioner Brooklyn Farmacy &
Soda Fountain might list one of the sundaes on its menu
as costing "$10 (with a $0.30 surcharge for credit card
users)." We take petitioners at their word and limit our
review to the question whether §518 is unconstitutional as
applied to this particular pricing practice.1
                            III
  The next question is whether §518 prohibits the pricing
regime petitioners wish to employ. The Court of Appeals
concluded that it does. The court read "surcharge" in §518
to mean "an additional amount above the seller's regular
 -  -  -  -  -  -
    1 Petitioner
               Expressions Hair Design currently posts separate dollars
and-cents prices for cash and credit - that is, it posts something like
"$10 cash, $10.30 credit." It displays its prices in this way, however,
only because it considers itself compelled to do so by the challenged law
if it wants to charge different prices. Prior to becoming aware of the
law, Expressions posted single prices along with a notice informing
customers that a three percent surcharge would be added to their bill if
they paid by credit card. Expressions has indicated that it would prefer
to return to its prior practice. See App. 19, Complaint ¶3; id., at 103-
104. Given petitioners' representations about the narrow scope of their
as-applied challenge, we limit our consideration to the single-sticker
pricing regime for present purposes. Petitioners' affidavits and briefing
reference other potential pricing schemes, which may be considered by
the Court of Appeals to the extent it deems appropriate. See, e.g., id.,
at 56; Brief for Petitioners 50.
                  Cite as: 581 U. S. ____ (2017)            7

                      Opinion of the Court

price," and found it "basically self-evident" how §518
applies to sellers who post a single sticker price: "the
sticker price is the 'regular' price, so sellers may not
charge credit-card customers an additional amount above
the sticker price that is not also charged to cash custom
ers." 808 F. 3d, at 128. Under this interpretation, signs of
the kind that the merchants wish to post - "$10, with a
$0.30 surcharge for credit card users" - violate §518 be
cause they identify one sticker price - $10 - and indicate
that credit card users are charged more than that amount.
   "We generally accord great deference to the interpreta
tion and application of state law by the courts of appeals."
Pembaur v. Cincinnati, 475 U. S. 469, 484, n. 13 (1986).
This deference is warranted to "render unnecessary review
of their decisions in this respect" and because lower fed
eral courts "are better schooled in and more able to interpret
the laws of their respective States." Brockett v. Spokane
Arcades, Inc., 472 U. S. 491, 500 (1985) (quoting Cort v.
Ash, 422 U. S. 66, 73, n. 6 (1975); internal quotation
marks omitted). "[W]e surely have the authority to differ
with the lower federal courts as to the meaning of a state
statute," and have done so in instances where the lower
court's construction was "clearly wrong" or "plain error."
472 U. S., at 500, and n. 9 (internal quotation marks
omitted). But that is not the case here. Section 518 does
not define "surcharge," but the Court of Appeals looked to
the ordinary meaning of the term: "a charge in excess of
the usual or normal amount." 808 F. 3d, at 127 (quoting
Webster's Third New International Dictionary 2299
(2002); internal quotation marks omitted). Where a seller
posts a single sticker price, it is reasonable to treat that
sticker price as the "usual or normal amount" and con
clude, as the court below did, that a merchant imposes a
surcharge when he charges a credit card user more than
that sticker price. In short, we cannot dismiss the Court
of Appeals' interpretation of §518 as "clearly wrong."
8       EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                         Opinion of the Court

Accordingly, consistent with our customary practice, we
follow that interpretation.
                            IV
  Having concluded that §518 bars the pricing regime
petitioners wish to employ, we turn to their constitutional
arguments: that the law unconstitutionally regulates
speech and is impermissibly vague.
                              A
  The Court of Appeals concluded that §518 posed no First
Amendment problem because the law regulated conduct,
not speech.2 In reaching this conclusion, the Court of
Appeals began with the premise that price controls regu
late conduct alone. See 44 Liquormart, Inc. v. Rhode
Island, 517 U. S. 484, 507 (1996) (plurality opinion); id., at
524 (THOMAS, J., concurring in part and concurring in
judgment); id., at 530 (O'Connor, J., concurring in judg
ment). Section 518 regulates the relationship between
"(1) the seller's sticker price and (2) the price the seller
charges to credit card customers," requiring that these two
amounts be equal. 808 F. 3d, at 131. A law regulating the
relationship between two prices regulates speech no
more than a law regulating a single price. The Court of Ap-
peals concluded that §518 was therefore simply a conduct
regulation.
  But §518 is not like a typical price regulation. Such a
regulation - for example, a law requiring all New York
delis to charge $10 for their sandwiches - would simply
regulate the amount that a store could collect. In other

 -  -  -  -  -  -
  2 Relying fully on their claim that §518 regulated speech, petitioners

did not advance any argument before the Court of Appeals that §518
was constitutionally problematic even if deemed a regulation of con
duct. See 808 F. 3d 118, 135 (CA2 2015) (noting that petitioners had
not challenged §518 under United States v. O'Brien, 391 U. S. 367
(1968)).
                 Cite as: 581 U. S. ____ (2017)            9

                     Opinion of the Court

words, it would regulate the sandwich seller's conduct. To
be sure, in order to actually collect that money, a store
would likely have to put "$10" on its menus or have its
employees tell customers that price. Those written or oral
communications would be speech, and the law - by deter
mining the amount charged - would indirectly dictate the
content of that speech. But the law's effect on speech
would be only incidental to its primary effect on conduct,
and "it has never been deemed an abridgment of freedom
of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evi
denced, or carried out by means of language, either spo
ken, written, or printed." Rumsfeld v. Forum for Aca-
demic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006)
(quoting Giboney v. Empire Storage & Ice Co., 336 U. S.
490, 502 (1949); internal quotation marks omitted); see
also Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011).
  Section 518 is different. The law tells merchants noth
ing about the amount they are allowed to collect from a
cash or credit card payer. Sellers are free to charge $10
for cash and $9.70, $10, $10.30, or any other amount for
credit. What the law does regulate is how sellers may
communicate their prices. A merchant who wants to
charge $10 for cash and $10.30 for credit may not convey
that price any way he pleases. He is not free to say "$10,
with a 3% credit card surcharge" or "$10, plus $0.30 for
credit" because both of those displays identify a single
sticker price - $10 - that is less than the amount credit
card users will be charged. Instead, if the merchant wishes
to post a single sticker price, he must display $10.30 as
his sticker price. Accordingly, while we agree with the
Court of Appeals that §518 regulates a relationship be
tween a sticker price and the price charged to credit card
users, we cannot accept its conclusion that §518 is nothing
more than a mine-run price regulation. In regulating the
communication of prices rather than prices themselves,
10      EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                         Opinion of the Court

§518 regulates speech.
   Because it concluded otherwise, the Court of Appeals
had no occasion to conduct a further inquiry into whether
§518, as a speech regulation, survived First Amendment
scrutiny. On that question, the parties dispute whether
§518 is a valid commercial speech regulation under Cen-
tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of
N. Y., 447 U. S. 557 (1980), and whether the law can be
upheld as a valid disclosure requirement under Zauderer
v. Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626 (1985).
   "[W]e are a court of review, not of first view." Nautilus,
Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014)
(slip op., at 14) (internal quotation marks omitted). Ac
cordingly, we decline to consider those questions in the
first instance. Instead, we remand for the Court of Ap
peals to analyze §518 as a speech regulation.3
                              B
   Given the way the merchants have presented their case,
their vagueness challenge gives us little pause. Before
this Court, the only pricing practice they express an inter
est in employing is a single-sticker regime, listing one
price and a separate surcharge amount. As we have ex
plained, §518 bars them from doing so. "[A] plaintiff
whose speech is clearly proscribed cannot raise a success
ful vagueness claim." Holder v. Humanitarian Law Pro-
ject, 561 U. S. 1, 20 (2010). Although the merchants argue
that "no one can seem to put a finger on just how far the
law sweeps," Brief for Petitioners 51, it is at least clear
 -  -  -  -  -  -
  3 To assess the statute's constitutionality, the Court of Appeals may

need to consider a question we need not answer here: whether the
statute permits two-sticker pricing schemes like the one petitioner
Expressions currently uses, see n. 1, supra. Respondents' argument
that §518 is a constitutionally valid disclosure requirement rests on an
interpretation of the statute that allows such two-sticker schemes.
                     Cite as: 581 U. S. ____ (2017)                   11

                          Opinion of the Court

that §518 proscribes their intended speech. Accordingly,
the law is not vague as applied to them.4
                            C
  The judgment of the Court of Appeals for the Second
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
                                          It is so ordered.

 -  -  -  -  -  -
   4 For similar reasons, petitioners' related argument regarding absten

tion is no longer at issue. The Court of Appeals abstained from decid
ing whether §518 was constitutional outside of the single-sticker
context, but the merchants have disavowed any intent to challenge the
law outside of this context.
                 Cite as: 581 U. S. ____ (2017)           1

               BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                          _________________

                         No. 15-1391
                          _________________

EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF

               NEW YORK, ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

           APPEALS FOR THE SECOND CIRCUIT

                       [March 29, 2017]

   JUSTICE BREYER, concurring in the judgment.
   I agree with the Court that New York's statute regu-
lates speech. But that is because virtually all government
regulation affects speech. Human relations take place
through speech. And human relations include community
activities of all kinds - commercial and otherwise.
   When the government seeks to regulate those activities,
it is often wiser not to try to distinguish between "speech"
and "conduct." See R. Post, Democracy, Expertise, and
Academic Freedom 3-4 (2012). Instead, we can, and
normally do, simply ask whether, or how, a challenged
statute, rule, or regulation affects an interest that the
First Amendment protects. If, for example, a challenged
government regulation negatively affects the processes
through which political discourse or public opinion is
formed or expressed (interests close to the First Amend-
ment's protective core), courts normally scrutinize that
regulation with great care. See, e.g., Boos v. Barry, 485
U. S. 312, 321 (1988). If the challenged regulation re-
stricts the "informational function" provided by truthful
commercial speech, courts will apply a "lesser" (but still
elevated) form of scrutiny. Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 563-
564 (1980). If, however, a challenged regulation simply
2      EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

               BREYER, J., concurring in judgment

requires a commercial speaker to disclose "purely factual
and uncontroversial information," courts will apply a more
permissive standard of review. Zauderer v. Office of Dis-
ciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626,
651 (1985). Because that kind of regulation normally has
only a "minimal" effect on First Amendment interests, it
normally need only be "reasonably related to the State's
interest in preventing deception of consumers." Ibid.
Courts apply a similarly permissive standard of review to
"regulatory legislation affecting ordinary commercial
transactions." United States v. Carolene Products Co., 304
U. S. 144, 152 (1938). Since that legislation normally does
not significantly affect the interests that the First
Amendment protects, we normally look only for assurance
that the legislation "rests upon some rational basis." Ibid.
   I repeat these well-known general standards or judicial
approaches both because I believe that determining the
proper approach is typically more important than trying to
distinguish "speech" from "conduct," see Sorrell v. IMS
Health Inc., 564 U. S. 552, 582 (2011) (BREYER, J., dissent-
ing), and because the parties here differ as to which ap-
proach applies. That difference reflects the fact that it is
not clear just what New York's law does. On its face, the
law seems simply to tell merchants that they cannot
charge higher prices to credit-card users. If so, then it is
an ordinary piece of commercial legislation subject to
"rational basis" review. See 44 Liquormart, Inc. v. Rhode
Island, 517 U. S. 484, 507 (1996) (opinion of Stevens, J.).
It may, however, make more sense to interpret the statute
as working like the expired federal law that it replaced. If
so, it would require a merchant, who posts prices and who
wants to charge a higher credit-card price, simply to dis-
close that credit-card price. See 15 U. S. C. §§1602(q), (x),
1666f(a)(2) (1982 ed.); see also post, at 9 (SOTOMAYOR, J.,
concurring in judgment). In that case, though affecting
the merchant's "speech," it would not hinder the transmis-
                 Cite as: 581 U. S. ____ (2017)           3

               BREYER, J., concurring in judgment

sion of information to the public; the merchant would
remain free to say whatever it wanted so long as it also
revealed its credit-card price to customers. Accordingly,
the law would still receive a deferential form of review.
See Zauderer, supra, at 651.
  Nonetheless, petitioners suggest that the statute does
more. See, e.g., Brief for Petitioners 28 (arguing that the
statute forbids "[f ]raming the price difference . . . as a
credit surcharge"). Because the statute's operation is
unclear and because its interpretation is a matter of state
law, I agree with the majority that we should remand the
case to the Second Circuit. I also agree with JUSTICE
SOTOMAYOR that on remand, it may well be helpful for the
Second Circuit to ask the New York Court of Appeals to
clarify the nature of the obligations the statute imposes.
See N. Y. Comp. Code, Rules & Regs., tit. 22, Rule
500.27(a) (2016) (permitting "any United States Court of
Appeals" to certify "dispositive questions of [New York]
law to the [New York] Court of Appeals").
                 Cite as: 581 U. S. ____ (2017)            1

             SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 15-1391
                         _________________

EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF

               NEW YORK, ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

           APPEALS FOR THE SECOND CIRCUIT

                       [March 29, 2017]

   JUSTICE SOTOMAYOR, with whom JUSTICE ALITO joins,
concurring in the judgment.
   The Court addresses only one part of one half of peti-
tioners' First Amendment challenge to the New York
statute at issue here. This quarter-loaf outcome is worse
than none. I would vacate the judgment below and re-
mand with directions to certify the case to the New York
Court of Appeals for a definitive interpretation of the
statute that would permit the full resolution of petitioners'
claims. I thus concur only in the judgment.
                             I
  New York prohibits its merchants from "impos[ing] a
surcharge on a [customer] who elects to use a credit card
in lieu of payment by cash, check, or similar means." N. Y.
Gen. Bus. Law Ann. §518 (West 2012). A merchant who
violates this prohibition commits a misdemeanor and risks
"a fine not to exceed five hundred dollars or a term of
imprisonment up to one year, or both." Ibid.
                             A
  Section 518 can be interpreted in several ways. On first
read, its prohibition on "impos[ing] a surcharge" on credit
card customers appears to prohibit charging customers who
pay with a credit card more than those who pay by other
2       EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                SOTOMAYOR, J., concurring in judgment

means. See Black's Law Dictionary 1579 (9th ed. 2009)
("surcharge" means "[a]n additional tax, charge, or cost").
That is, §518 may require a merchant to charge all cus-
tomers the same price, no matter the form of payment.
   An earlier federal law containing an almost identical
prohibition muddies the path to this plain text reading. A
1976 amendment to the Truth in Lending Act set out a
temporary prohibition barring a "seller in any sales trans-
action" from "impos[ing] a surcharge on a cardholder who
elects to use a credit card in lieu of payment by cash,
check, or similar means." §3(c)(1), 90 Stat. 197. The
amendment also defined a "surcharge" as "any means of
increasing the regular price to a cardholder which is not
imposed upon customers paying by cash, check, or similar
means." §3(a), ibid. "[R]egular price" was later defined to
mean the displayed price if a merchant displayed only one
price or the credit card price if the merchant either did not
display prices or displayed both cash and credit card prices.
§102(a), 95 Stat. 144. Under that definition, a merchant
violated the federal prohibition on "impos[ing] a sur-
charge" by displaying in dollars-and-cents form only one
price - the cash price - and then charging credit card
customers a higher price.1
   When the federal law lapsed in 1984, New York enacted
§518, which sets out the same ban on "impos[ing] a sur-
charge." New York borrowed the federal prohibition al-
most verbatim. But it chose, without explanation, not to
borrow the federal definitions or to enact clarifying defini-
tions of its own.
   The difference between the laws leaves §518 open to at
least three interpretations. It could be read in line with
its plain text to require that a merchant charge the same
 -  -  -  -  -  -
  1 This is the interpretation of the lapsed federal ban offered by the

United States and accepted by the majority. For purposes of this
opinion, I assume that this interpretation is correct.
                     Cite as: 581 U. S. ____ (2017)                   3

                SOTOMAYOR, J., concurring in judgment

price to all his customers. It could be read in line with the
lapsed federal ban to permit a merchant to charge differ-
ent prices to cash and credit card customers but to prohibit
a merchant from displaying in dollars-and-cents form only
the cash price and then charging credit card customers a
higher price. On this reading, §518 would not apply where
a merchant displays in dollars-and-cents form only the
credit card price and then charges a lower price to cash
customers, or where a merchant displays both the cash
and credit card prices in dollars-and-cents form. Or it
could be read more broadly, based on the omission of the
definitions that had limited the federal ban's scope. On
this reading, §518 might prohibit a merchant from charac-
terizing the difference between the cash and credit card
prices as a "surcharge," no matter how he displays his
prices.2
 -  -  -  -  -  -
   2 Section 518's sparse enforcement history does not clear up the am-

biguity. New York has pursued one §518 prosecution, which resulted in
a conviction later set aside on appeal. The decision supports, but does
not require, giving §518 a broader reading than the lapsed federal ban.
See People v. Fulvio, 136 Misc. 2d 334, 344-345, 517 N. Y. S. 2d 1008,
1015 (1987) (stating that §518 permits a conviction for being "careless
enough to describe the higher price in terms which amount to the
'credit price' having been derived from adding a charge to the lower
price" (emphasis deleted)). A more recent enforcement spree is more
opaque. A group of merchants state that when a customer called
asking for their prices, they would quote the cash price and tell the
customers they charged, for example, "a $.05 surcharge" for payment
with a credit card. See, e.g., App. 107. They state that in 2009 the New
York Attorney General's Office told them that they had violated §518,
directed them to stop, and explained that they could comply with §518
by quoting the credit card price and offering a "discoun[t]" for payment
with cash. Ibid. While these merchants' acts would have violated the
lapsed federal ban - by stating a single cash price and then charging a
higher price to credit card customers - the recent enforcement actions
do not demonstrate that §518 prohibits only those acts and stretches no
further. And because the New York attorney general lacks the author-
ity to adopt an interpretation of §518 that binds other prosecutorial
entities in the State, these enforcement actions speak only to how the
4       EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                SOTOMAYOR, J., concurring in judgment

   Confirming the elusive nature of §518, New York has
pressed almost all of these interpretations during this
litigation. Before the District Court, it viewed §518 as
mirroring the lapsed federal ban. See 975 F. Supp. 2d
430, 442 (SDNY 2013). Before the Second Circuit, it of-
fered the lapsed federal ban as a narrowing interpretation,
thus suggesting that §518 applies more broadly than that
provision. See 808 F. 3d 118, 140, n. 13 (2015). And be-
fore this Court, it explained that other prosecutorial enti-
ties in New York are not bound by its interpretation of
§518 (or the interpretations of the state district attorneys
who are parties to this case), leaving open the possibility
of still other interpretations. See Tr. of Oral Arg. 40.3
                             B
  Petitioners here are five New York merchants. When a
customer pays with a credit card, petitioners (like all
merchants) are charged a processing fee by the card issuer.
Petitioners want to pass that fee on to their credit card
paying customers, but not their cash paying customers.
They want to charge cash customers one price and credit
card customers a higher price that includes the processing
fee. One petitioner, Expressions Hair Design, currently
does pass the costs of credit card processing fees on to its
credit card paying customers. The other four charge one
price to all customers. They set their prices to account for
the processing fees they predict they will incur.
  All five would prefer to use a different pricing system or
display than the ones they use now. Expressions Hair
Design and Five Points Academy would like to charge cash
and credit card customers two different prices and to
 -  -  -  -  -  -
attorney general may interpret §518. See Tr. of Oral Arg. 40-41.
  3 The multiple available interpretations of §518 do not render §518 so

vague as to violate the Due Process Clause. But they do render §518
ambiguous enough to warrant asking the New York Court of Appeals to
resolve the statute's meaning.
                  Cite as: 581 U. S. ____ (2017)            5

              SOTOMAYOR, J., concurring in judgment

display a dollars-and-cents cash price alongside the extra
charge for credit card customers - say, "$100 with a 3%
credit card charge" or "$100 with a $3 credit card charge."
Brooklyn Farmacy & Soda Fountain, Brite Buy Wines &
Spirits, and Patio.com want to charge cash and credit card
customers two different prices and to characterize the
difference in prices as a "surcharge" when they display or
convey their prices to customers. App. 47-48, 51, 57.
  All five do not use their preferred pricing systems or
displays for fear of violating §518. Expressions Hair
Design and Five Points Academy believe §518 prohibits
their pricing display because it would convey the credit
card processing costs impermissibly as a surcharge, rather
than permissibly as a discount - say, "$103 with a 3%
discount for cash payment" or "$103 with a $3 discount for
cash payment." The other three petitioners believe that
§518 regulates how they can describe the difference be-
tween cash and credit card prices. Because §518 does not,
in their view, clearly state just how it regulates those
descriptions, they have decided that the uncertainty coun-
sels against a change.
  Petitioners view §518 as an unconstitutional restriction
on their ability to display and describe their prices to their
customers. And so they sued and challenged the law on
First Amendment grounds.
                             II
  Resolving petitioners' challenge to §518 requires an
accurate picture of how, exactly, the statute works. That
understanding is needed both to decide whether §518
prohibits petitioners' preferred pricing systems and dis-
plays and, if so, whether that prohibition is consistent
with the First Amendment. See 808 F. 3d, at 141; ante, at
10, n. 3.
  But the Second Circuit did not decide just how far §518
extends. It instead decided how §518 applies to part of the
6      EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

             SOTOMAYOR, J., concurring in judgment

petitioners' challenge - the pricing display Expressions
Hair Design and Five Points Academy wish to use - and
declined to decide how, or even if, §518 applies to the rest
of the challenge. While §518 evades easy interpretation, a
partial decision was neither required nor right. The court
below erred by not asking the New York Court of Appeals
for a definitive interpretation of §518, and this Court errs
by not correcting it.
                              A
   Given a constitutional challenge that turned on the
interpretation of an ambiguous state statute not yet defin-
itively interpreted by the state courts, the Second Circuit
faced a problem. Any interpretation it gave §518 would
not be authoritative since state courts, not federal courts,
have the final word on the interpretation of state statutes.
But it had before it two routes - abstention and certifica-
tion - to a solution. Both would have allowed it to secure
an authoritative interpretation of §518 before resolving
the constitutional challenge.
   In this context, abstention and certification serve the
same goals. Both recognize that when the outcome of a
constitutional challenge turns on the proper interpretation
of state law, a federal court's resolution of the constitu-
tional question may turn out to be unnecessary. The state
courts could later interpret the state statute differently.
And the state court's different interpretation might result
in a statute that implicates no constitutional question, or
that renders the federal court's constitutional analysis
irrelevant. See, e.g., Arizonans for Official English v.
Arizona, 520 U. S. 43, 79 (1997); Brockett v. Spokane
Arcades, Inc., 472 U. S. 491, 507-509 (1985) (O'Connor, J.,
concurring). Abstention and certification avoid this risk
by deferring a federal court's decision on the constitution-
ality of the state statute until a state court has authorita-
tively resolved the antecedent state-law question.
                     Cite as: 581 U. S. ____ (2017)                    7

                SOTOMAYOR, J., concurring in judgment

   Abstention is a blunt instrument. Under Railroad
Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941), a
federal court's decision to abstain sends the plaintiff to
state court. Once the plaintiff obtains the state courts'
views on the statute, he may return to federal court, state-
court decision in hand, for resolution of the constitutional
question. Pullman abstention thus "entail[s] a full round
of litigation in the state court system before any resump-
tion of proceedings in federal court." Arizonans for Offi-
cial English, 520 U. S., at 76.
   Certification offers a more precise tool. In States that
have authorized certification, a federal court may "put the
[state-law] question directly to the State's highest court,
reducing the delay, cutting the cost, and increasing the
assurance of gaining an authoritative response." Ibid.
The rule relevant here is typical of certification statutes.
New York allows a federal court of appeals to certify "de-
terminative questions of New York law . . . involved in a
case pending before that court for which no controlling
precedent of the Court of Appeals exists . . . to the [New
York] Court of Appeals." N. Y. Comp. Code, Rules &
Regs., tit. 22, Rule 500.27(a) (2016).4

 -  -  -  -  -  -
  4 The New York Court of Appeals regularly accepts and answers certi-
fied questions. See, e.g., Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28
N. Y. 3d 583, ___ N. E. 3d ___ (Dec. 20, 2016) (certified Apr. 13, 2016);
Pasternack v. Laboratory Corp. of Am. Holdings, 27 N. Y. 3d 817, 59
N. E. 3d 485 (June 30, 2016) (certified Nov. 17, 2015); Matter of Viking
Pump, Inc., 27 N. Y. 3d 244, 52 N. E. 3d 1144 (May 3, 2016) (certified
June 10, 2015); Beck Chevrolet Co. v. General Motors LLC, 27 N. Y. 3d
379, 53 N. E. 3d 706 (May 3, 2016) (certified May 19, 2015); Ministers &
Missionaries Benefit Bd. v. Snow, 26 N. Y. 3d 466, 45 N. E. 3d 917 (Dec.
15, 2015) (certified Mar. 5, 2015). The Second Circuit has "actively and
vigorously employed" certification. Kaye, Tribute to Judge Guido
Calabresi, 70 N. Y. U. Annual Survey Am. L. 33, 34 (2014) (noting,
based on service as the Chief Judge of the New York Court of Appeals,
that certification by the Second Circuit "has done an enormous amount
to bridge the gap between our state and federal court systems").
8       EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                SOTOMAYOR, J., concurring in judgment

   While the decision to certify "rests in the sound discre-
tion of the federal court," Lehman Brothers v. Schein, 416
U. S. 386, 391 (1974), this Court has repeatedly empha-
sized that certification offers clear advantages over ab-
stention. "[M]ere difficulty in ascertaining local law is no
excuse for" abstaining and "remitting the parties to a state
tribunal for the start of another lawsuit." Id., at 390.
Keeping the case, waiting for an answer on the certified
question, and then fully resolving the issues "in the long
run save[s] time, energy, and resources and helps build a
cooperative judicial federalism." Id., at 391. As a result,
"the availability of certification greatly simplifies the
analysis" of whether to abstain. Bellotti v. Baird, 428
U. S. 132, 151 (1976); see also Arizonans for Official Eng-
lish, 520 U. S., at 75 ("Certification today covers territory
once dominated by a deferral device called Pullman ab-
stention" (internal quotation marks omitted)). And this
Court has described abstention as particularly problematic
where, as here, a challenge to a state statute rests on the
First Amendment. Cf. Virginia v. American Booksellers
Assn., Inc., 484 U. S. 383, 396 (1988) ("Certification, in
contrast to the more cumbersome and (in this context)
problematic abstention doctrine, is a method by which we
may expeditiously obtain that construction"); Houston v.
Hill, 482 U. S. 451, 467-468 (1987).
   The court below chose a convoluted course: It rejected
certification, abstained in part, and decided the question
in part. It did so by dividing petitioners' challenge into
two parts. As to the first part, it held that §518 did pro-
hibit the pricing display that Expressions Hair Design and
Five Points Academy prefer: displaying the cash price
alongside the credit card charge.5 It found this application
 -  -  -  -  -  -
  5 The court below did not truly engage with the plain text reading of

§518, under which a merchant may not charge different prices to cash
and credit card customers. See 808 F. 3d 118, 128 (CA2 2015). It is
                     Cite as: 581 U. S. ____ (2017)                    9

                SOTOMAYOR, J., concurring in judgment

of §518 consistent with the First Amendment. See 808
F. 3d, at 130. As to the second part, it declined to address
whether §518 speaks to, or unconstitutionally restricts,
how petitioners who wish to display both the cash and
credit card prices in dollars-and-cents form can describe
the difference between those prices. See id., at 136. It
doubted whether §518 did reach that broadly and assumed
that, even if it did, the New York state courts would con-
strue the statute more narrowly - in line with the lapsed
federal provision. And so the court declined to certify the
question and chose instead to abstain from deciding this
part of petitioners' challenge. See id., at 137-139. It did
so even though New York, responsible for enforcing §518,
had "never quite abandon[ed]" its position that §518 might
reach more broadly than the lapsed federal provision. Id.,
at 140, n. 13.
   The Second Circuit should have exercised its discretion
to certify the antecedent state-law question here: What
pricing schemes or pricing displays does §518 prohibit?
Certification might have avoided the need for a constitu-
tional ruling altogether. If the state court reads §518 only
as a price regulation, no constitutional concerns are impli-
cated. Compare 44 Liquormart, Inc. v. Rhode Island, 517
U. S. 484, 507 (1996) (plurality opinion) ("direct regula-
tion" of prices does "not involve any restriction on
speech"), with Virginia Bd. of Pharmacy v. Virginia Citi-
zens Consumer Council, Inc., 425 U. S. 748, 761 (1976)
(price advertisements contain protected speech because
they convey a merchant's " 'idea' " that " 'I will sell you the
X prescription drug at the Y price' "). Or certification
might have limited the scope of the constitutional chal-
lenge in the case. If the state court reads §518 to mirror
the lapsed federal ban, that would eliminate the need for a
 -  -  -  -  -  -

free to consider that reading on remand in light of the Court's constitu-
tional holding.

10       EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN

                 SOTOMAYOR, J., concurring in judgment

constitutional ruling on the second part of petitioners'
challenge (premised on a reading of §518 that prohibits
more than the lapsed federal ban). At the very least,
certification would have allowed the court to resolve peti-
tioners' entire challenge in one go.
   The Second Circuit declined to exercise its discretion to
certify because it viewed the "state of the record" as too
underdeveloped. 808 F. 3d, at 141. It thought that the
New York Court of Appeals could not interpret §518, and
that it could not resolve the challenge to §518, based
on that record. Both issues are pure questions of law:
whether §518 prohibits petitioners' preferred pricing sys-
tems and displays (a statutory interpretation question for the
New York Court of Appeals) and whether §518 survives
petitioners' First Amendment challenge (a constitutional
question for the Second Circuit). And both issues turn on
only a limited set of facts - the pricing systems and dis-
plays that petitioners wish to use. As discussed above, the
record contains those facts. The "state of the record" thus
does not counsel against certification. Given the signifi-
cant benefits certification offered and given the absence of
persuasive downsides identified by the Second Circuit, the
decision not to certify was an abuse of discretion.
                               B
  The consequences of the decision not to certify reverber-
ate throughout the Court's opinion today. For lack of a
definitive interpretation of §518, it chooses to address only
the first part of petitioners' challenge and to defer to the
Second Circuit's partial interpretation of §518.6 Ante, at
 -  -  -  -  -  -
  6 It does so by invoking an interpretive rule of deference to a lower

federal court's construction of the law of a State within its jurisdiction,
in line with the general principle that this Court does not resolve issues
of state law. I do not read the Court's deference to the Second Circuit
as holding that this Court will defer to a lower federal court's interpre-
tation of state law even where doing so would cast serious constitutional
                      Cite as: 581 U. S. ____ (2017)                     11

                 SOTOMAYOR, J., concurring in judgment

6-8. It then holds that §518 does restrict constitutionally
protected speech. Ante, at 8-10. But it does not decide
whether §518's restriction is constitutionally permissible
because doing so would require it to answer the ever-
present question in this case: "whether the statute permits
. . . pricing schemes like the one . . . Expressions currently
uses." Ante, at 10, n. 3. And so it sends this case back to
the Second Circuit for further proceedings. Ante, at 10.
                             III
  "The complexity" of this case "might have been avoided,"
Arizonans for Official English, 520 U. S., at 79, had the
Second Circuit certified the question of §518's meaning
when the case was first before it. The Court's opinion does
not foreclose the Second Circuit from choosing that route
on remand. But rather than contributing to the piecemeal
resolution of this case, I would vacate the judgment below
and remand with instructions to certify the case to the
New York Court of Appeals to allow it to definitively
interpret §518. I thus concur only in the judgment.

 -  -  -  -  -  -
doubt on, or invalidate, a state law. Such a rule would be incorrect.
See Frisby v. Schultz, 487 U. S. 474, 483 (1988) (describing lower
courts' interpretation as "plain error . . . [t]o the extent they endorsed a
broad reading of the" law at issue because "the lower courts ran afoul of
the well-established principle that statutes will be interpreted to avoid
constitutional difficulties"). The Court's silence on the relevance of the
avoidance canon to the Second Circuit's interpretation is consistent
with an unexpressed conclusion, with which I disagree, that no narrow-
ing construction is available that would avoid constitutional concerns or
that a broader constriction raises no constitutional concerns.


317 U.S. 264 (1942)
DEPARTMENT OF BANKING OF NEBRASKA, RECEIVER,
v.
PINK, SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK.
No. 466.
Supreme Court of United States.
Decided December 21, 1942.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW YORK.
*265 Messrs. Walter R. Johnson, Attorney General of Nebraska, Morris Amchan and Howard Saxton were on the brief for petitioner.
Mr. Edward F. Keenan was on the brief for respondent.
PER CURIAM.
This case is here on a petition for certiorari to the Supreme Court of New York. It appears from the record that a judgment of that court was affirmed by an order of the Appellate Division, which was on June 18, 1942 ordered affirmed by the Court of Appeals, whose remittitur to the Supreme Court was issued the same day. On June 25 the order and judgment of the Court of Appeals were made the order and judgment of the Supreme Court.
*266 A motion was afterwards filed in the Court of Appeals to amend its remittitur by adding to it the statement that a federal question, on which the petition for certiorari relies, was presented and necessarily passed upon in that court. So far as appears, the motion did not seek a reargument or rehearing of any part of the case; it was no more than a request that the Court of Appeals declare what had in fact occurred upon its previous decision of the case. On July 29 the Court of Appeals granted the motion and amended its remittitur accordingly. On September 16, the Supreme Court directed that the order amending the remittitur be made the order of the Supreme Court. The petition for certiorari was filed in this Court on October 20.
Under the three-months limitation imposed by the statute, 28 U.S.C. § 350, the petition for certiorari is timely only if the amendment of the remittitur extended the time within which to apply for certiorari. We are unable to conclude that it had such effect. Unlike a motion for reargument or rehearing, it did not seek to have the Court of Appeals reconsider any question decided in the case. The final judgment already rendered was not challenged; what was sought was merely the court's certification that a federal question had been presented to it for decision, and this could have no different effect on the finality of the judgment than a like amendment of the court's opinion.
A timely petition for rehearing tolls the running of the three-months period because it operates to suspend the finality of the state court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties. Here no such alteration of the rights adjudicated was asked, and the finality of the court's first order was never suspended. Accordingly we must deny the petition *267 for certiorari on the ground that it was not filed within the time provided by law.
Certain questions with respect to the timeliness of applications for review of state court judgments, which are now pending before us in petitions for rehearing in two cases, have recurred so frequently that we think it appropriate to add a word for the guidance of the Bar. It is true that our writ to review a judgment of the highest court of a state may properly run to a lower court where the record is physically lodged, and where under New York practice a judgment is entered upon the remittitur of the Court of Appeals. It is nevertheless immaterial whether the record is physically lodged in the one court or the other, since we have ample power to obtain it from either. Atherton v. Fowler, 91 U.S. 143, 146. In reliance upon the early decision in Green v. Van Buskerk, 3 Wall. 448, the period for appeal or application for certiorari has on occasion been computed not from the judgment or order of the New York Court of Appeals, but from the judgment subsequently entered by the lower court upon the Court of Appeals' remittitur. This practice, which is a departure from the rule applied to cases from other states, is inconsistent with our many decisions on the nature of a final judgment under § 237 of the Judicial Code, 28 U.S.C. § 344, and cannot be sanctioned. See especially Chief Justice Waite's opinion in Mower v. Fletcher, 114 U.S. 127, where a state appellate court's judgment was held to be final and reviewable when it ended the litigation by fully determining the rights of the parties, so that nothing remained to be done by the lower court except the ministerial act of entering the judgment which the appellate court had directed. See also Wurts v. Hoagland, 105 U.S. 701, 702, and Clark v. Williard, 292 U.S. 112, 117-118. This rule applies with equal force to cases from New York, *268 in which the judgment or order of the Court of Appeals is reviewable here as a final judgment when the record reveals that it leaves nothing to be done by the lower court except the ministerial act of entering judgment on the remittitur. Such an order is, within the meaning of § 237 of the Judicial Code, a final judgment reviewable here.
For the purpose of the finality which is prerequisite to a review in this Court, the test is not whether under local rules of practice the judgment is denominated final (Wick v. Superior Court, 278 U.S. 575; Cheltenham & Abington Sewerage Co. v. Pennsylvania Public Utility Comm'n, post, p. 588), but rather whether the record shows that the order of the appellate court has in fact fully adjudicated rights and that that adjudication is not subject to further review by a state court (see Gorman v. Washington University, 316 U.S. 98). Where the order or judgment is final in this sense, the time for applying to this Court runs from the date of the appellate court's order, since the object of the statute is to limit the applicant's time to three months from the date when the finality of the judgment for purposes of review is established.
It was for this reason that we recently held that the three-months requirement had not been complied with in Monks v. Lee, post, p. 590, and Bunn v. Atlanta, post, p. 666, in which cases judgments were brought here for review from the courts of California and Georgia, and in each of which a petition for rehearing is today denied, post, p. 711. The petition for certiorari in this case must likewise be denied for want of jurisdiction.
So ordered.


177 U.S. 419
20 S.Ct. 701
44 L.Ed. 829
WILLIAM CRAWFORD, Appt.,v.WILLIAM L. HUBBELL, as Treasurer of the Adams  Express Company.
No. 248.
Argued November 8, 9, 1899.
Decided April 16, 1900.

Messrs. Frederic R. Kellogg, Allan L. McDermott, Harvey L. Christie, and Dill, Seymour, & Baldwin for appellant.
Messrs. Charles Steele, C. B. Alexander, William D. Guthrie, and Theodore S. Beecher for appellee.
Mr. Justice White delivered the opinion of the court:

1
The certificate and the questions which arise from it are as follows:

2
'This cause came before this court on February 2, 1899, upon      an appeal taken by the complainant to review a decree of the      circuit court, southern district of New York, sitting in      equity. Such decree dismissed the bill. As to a question of      law arising upon said appeal this court desires the      instruction of the Supreme Court for its proper decision.

3
'Statement of Facts.

4
'This suit is for an injunction to restrain the express      company from refusing to accept express packages from      complainant for transportation, except upon the condition      that complainant either pay for or provide the war revenue      stamp required to be affixed to each receipt in addition to      its usual and ordinary charges for transportation as the same      existed on and for a long time prior to July 1, 1898. The      defendant company since July 1, 1898, has fixed rates of      compensation which it offers to accept for services rendered      by it, whereby, in addition to the amount of its charges as      the same existed on and for a long time prior to July 1,      1898, it requires the shipper either to provide or pay for      the cost of the stamp on the bill of lading or receipt      required to be issued by the act of Congress of June 13,      1898, known as the 'War Revenue Act.' It has made known these      charges to shippers, and particularly to complainant, and      refuses to accept packages for transportation except upon      payment thereof. The pleadings are annexed to this      certificate.

5
'Questions Certified.

6
'Upon the facts set forth, the questions of law concerning      which this court desires the instruction of the Supreme Court      for its proper decision are:

7
'(1) Does the war revenue act of June 13, 1898, impose upon      the carrier exclusively the tax represented by the stamp to      be affixed to each bill of lading, manifest, or other      evidence of receipt required to be issued to each shipper of      goods accepted by the carrier for transportation, or does it impose      the tax merely upon the transaction of shipment, leaving it      to be paid indifferently by either party thereto?

8
'(2) If the war revenue act of June 13, 1898, does impose      such tax exclusively upon the carrier, does it preclude the      carrier, who is by such act required to issue to each shipper      a bill of lading, manifest, or other evidence of receipt,      from relieving itself of the expense of affixing and      canceling the stamp required to be attached to such bill of      lading, manifest, or other evidence of receipt?

9
'In accordance with the provisions of § 6 of the act of March      3, 1891, establishing courts of appeal, etc., the foregoing      questions of law are by the circuit court of appeals hereby      certified to the Supreme Court.'

10
The subject to which the certificate relates and the matter embraced in the questions submitted has been considered, and was passed on in an opinion this day announced in the case of American Exp. Co. v. Maynard ex rel. Moore, No. 220 of the docket of this term (177 U. S. 404, 44 L. ed.  -  - , 20 Sup. Ct. Rep. 695).

11
For the reasons given in the opinion in the case just referred to, it is unnecessary to answer the first question submitted, and a negative answer to the second question is required; and it is so ordered.


274 U.S. 619 (1927)
FEDERAL TRADE COMMISSION
v.
EASTMAN KODAK COMPANY ET AL.
No. 215.
Supreme Court of United States.
Argued March 10, 11, 1927.
Decided May 31, 1927.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*620 Mr. Adrien F. Busick, with whom Solicitor General Mitchell and Mr. Bayard T. Hainer were on the brief, for petitioner.
Mr. John W. Davis, with whom Messrs. Clarence P. Moser and Harold G. Hathaway were on the brief, for respondents.
MR. JUSTICE SANFORD delivered the opinion of the Court.
This writ brings up for review a decree of the Circuit Court of Appeals setting aside in part an order of the Federal Trade Commission, entered after a due hearing in a proceeding instituted by it under § 5 of the Federal Trade Commission Act,[1] by which the Eastman Kodak Company, the Allied Laboratories Association, Inc., and others were required to desist from acts held by the Commission to constitute unfair methods of competition in the manufacture and sale of positive cinematograph films in interstate and foreign commerce.
These positive films are raw materials used by film laboratories in making positive prints of motion pictures that are thrown upon the screen. The Eastman Company originated the commercial manufacture of such films many years ago. In 1920 it manufactured and sold 94 per cent. of those used in the United States; but in 1921, owing to competition by importers of films manufactured in foreign countries, its sales decreased to 81 per cent. Upon an agreed statement of facts, and the inferences which it drew therefrom, the Commission found, in effect, that thereafter the Eastman Company, with the purpose and intent of maintaining its monopoly and lessening competition in the sale of such films, acquired three laboratories used in making motion picture prints, whose combined capacity exceeded that of all the other laboratories *621 east of Chicago, and announced its intention of entering upon the manufacture of such prints; that this constituted an effective threat of overpowering competitive force which compelled the members of the Allied Laboratories  -  an association of manufacturers of such prints  -  to enter into an agreement or understanding with the Eastman Company that the members of the Allied Laboratories would use American-made films only, to the exclusion of foreign-made films, so long as the Company did not compete with them in manufacturing prints, and that the company  -  which continued to maintain its laboratories in readiness for operation  -  would not manufacture prints in competition with them so long as they used American-made films exclusively; that this agreement or understanding had the effect of lessening competition in the sale of the films in interstate and foreign commerce and sustaining the monopoly of the Company therein; and that its ownership of the three laboratories and their maintenance in condition for operation, continued to have the effect of inducing and compelling the manufacturers of prints to use only the films made by the Company.
On these and subsidiary findings, the Commission entered an order requiring the defendants to cease and desist from combining and cooperating in restraining competition in the manufacture and sale of positive films and maintaining the monopoly of the Eastman Company in their sale in interstate and foreign commerce, by the agreement and understanding that the members of the Allied Laboratories would use American-made films exclusively, provided the Company would not operate its laboratories in competition with them, and that the Company would not operate its laboratories for the manufacture of prints in competition with them, provided they used and continued to use American-made films exclusively; and by other incidental means. And the Commission *622 further ordered that for the purpose of preventing the maintenance of the monopoly of the Eastman Company in the manufacture and sale of positive films and restoring competitive freedom in their distribution and sale, the Company should with due diligence sell and convey its three laboratories to parties not directly connected, or indirectly interested, with it.
On a petition by the Eastman Company and the Allied Laboratories for a review of this order, the Circuit Court of Appeals  -  without referring specifically to the purpose for which the Eastman Company acquired and maintained the three laboratories  -  held, in substance, that the reciprocal agreement or understanding between the Eastman Company and the Allied Laboratories that their members would use only American-made films in the manufacture of prints, and the Company would not operate its laboratories for the manufacture of prints, was an unfair method of competition which the Commission had authority to prevent; but that  -  one judge dissenting  -  it was not unlawful for the Eastman Company to equip itself to enter upon the business of manufacturing prints, there being nothing unfair in its going into this business, and the Commission had no authority to order the Company to divest itself of the laboratories which it had lawfully acquired. 7 Fed. (2d) 994. A decree was accordingly entered affirming the order of the Commission in so far as it required the Eastman Company and the Allied Laboratories to desist from their agreement or understanding in reference to the use of American-made films and the operation of the Eastman Company's laboratories, but setting aside the order in so far as it required the Eastman Company to sell its laboratories, and in other incidental respects.
This writ of certiorari was then granted on a petition by the Commission which challenged the correctness of the decree of the Court of Appeals only in respect to the *623 setting aside of so much of the order as required the Eastman Company to dispose of its laboratories.
For present purposes we do not find it necessary to determine the questions whether the finding of the Commission as to the purpose for which the Eastman Company acquired the three laboratories  -  based in part at least upon inferences from the agreed statement of facts  -  was correct, and whether, in any event, it was conclusive upon the Court of Appeals; but, in the absence of any specific reference to this matter by the Court of Appeals, we shall assume the correctness of the Commission's finding, and proceed, on that assumption, to the consideration of the only other question presented in the petition for the writ of certiorari and pressed in this Court, namely, whether the Commission had authority to order the Eastman Company to sell and convey its laboratories to other parties.
The proceeding before the Commission was instituted under § 5 of the Federal Trade Commission Act, and its authority did not go beyond the provisions of that section. By these the Commission is empowered to prevent the using of "unfair methods of competition" in interstate and foreign commerce, and, if it finds that "any unfair method of competition." is being used, to issue an order requiring the offender "to cease and desist from using such method of competition." The Commission exercises only the administrative functions delegated to it by the Act, not judicial powers. National Harness, etc. Association v. Federal Trade Commission (C.C.A.), 268 Fed. 705, 707; Chamber of Commerce v. Federal Trade Commission (C.C.A.), 280 Fed. 45, 48. It has not been delegated the authority of a court of equity. And a Circuit Court of Appeals on a petition to review its order is limited to the question whether or not it has properly exercised the administrative authority given it by the Act, and may not sustain or award relief beyond *624 the authority of the Commission; such review being appellate and revisory merely, and not an exercise of original jurisdiction by the court itself.
The question here presented is in effect ruled by Federal Trade Commission v. Western Meat Co., 272 U.S. 554, 561, 563, in which the decisions in Federal Trade Commission v. Thatcher Mfg. Co. (C.C.A.), 5 F. (2d) 615, and Swift & Co. v. Federal Trade Commission (C.C.A.), 8 F. (2d) 595, that were relied upon by the Commission in its petition for the writ of certiorari, were reversed by this Court. In that case it was held that  -  although the Commission, having been granted specific authority by § 11 of the Clayton Act[2] to require a corporation that had acquired the stock of a competitive corporation in violation of law "to cease and desist from such violations, and divest itself of the stock held," might require the corporation to divest itself of such stock in a manner preventing its use for the purpose of securing the competitor's property  -  it could not, after the corporation by the use of such stock had acquired the property of the competitor, require it to divest itself of the property thus acquired so as to restore the prior lawful condition. As to this we said: "The Act has no application to ownership of a competitor's property and business obtained prior to any action by the Commission, even though this was brought about through stock unlawfully held. The purpose of the Act was to prevent continued holding of stock and the peculiar evils incident thereto. If purchase of property has produced an unlawful status a remedy is provided through the courts." And they "must administer whatever remedy there may be in such situation." Distinct reference was there made (p. 561) to § 15 of the Clayton Act, where express provision is made for the invocation of judicial remedies as need therefore may arise.
*625 So here, the Commission had no authority to require that the Company divest itself of the ownership of the laboratories which it had acquired prior to any action by the Commission. If the ownership or maintenance of these laboratories has produced any unlawful status, the remedy must be administered by the courts in appropriate proceedings therein instituted.
The decree of the Circuit Court of Appeals is accordingly
Affirmed.
MR. JUSTICE STONE, dissenting.
I am unable to agree that the Federal Trade Commission, in the performance of its duties under the Federal Trade Commission Act, lacks the power to order the divestment of physical property, or that the decision in Federal Trade Commission v. Western Meat Company, 272 U.S. 554, forecloses our consideration of that question here. In the Thatcher and Swift cases considered in that opinion, the stock of competing corporations had been acquired in violation of § 7 of the Clayton Act, which prohibits the acquisition by one corporation of the capital stock of another "where the effect of such acquisition may be to substantially lessen competition." The stock control having been followed by purchase of the physical assets of the competing corporations, the Commission, proceeding under §§ 7 and 11, ordered the offending corporations to divest themselves of both the stock and the physical property. In deciding that the Commission had exceeded its authority, so far as the property was concerned, the Court expressly limited its consideration to the grant of power under §§ 7 and 11 of the Clayton Act, § 11 in terms authorizing the Commission to make an order "requiring such person to cease and desist from such violations, and divest itself of the stock held . . . contrary to the provisions of section 7 . . ." *626 The effect of § 5 of the Federal Trade Commission Act, dealing with the different subject of unfair competition, was put to one side, the Court saying: "This section (referring to § 5) is not presently important; the challenged orders sought to enforce obedience to § 7 of the Clayton Act." (p. 557.) The scope of the decision was thus stated: "When the Commission institutes a proceeding based upon the holding of stock contrary to § 7 of the Clayton Act, its power is limited by § 11 to an order requiring the guilty person to cease and desist from such violation, effectually to divest itself of the stock, and to make no further use of it." (p. 561.)
It was not held that the Commission under no circumstances could compel the sale of physical property, and there was in fact a clear intimation in the opinion that under § 7 of the Clayton Act the acquisition of the property after a complaint had been filed against the corporation for illegal stock purchases would not find the Commission powerless.
Section 5 of the Trade Commission Act, with which we are now concerned, declares unlawful "unfair methods of competition in commerce," and empowers and directs the Commission to prevent the use of such methods. The Commission is directed upon finding that the method of competition under investigation is prohibited by the Act, to issue its order "requiring such person, partnership or corporation to cease and desist from using such method of competition."
The powers thus broadly given sharply contrast with the specific enumeration of §§ 7 and 11 of the Clayton Act. As was pointed out in the Western Meat Co. case, the Clayton Act prohibits only the acquisition of stock and not the assets of the competing corporation, and in terms merely authorizes an order requiring the corporation "to cease and desist from such violations, and divest itself of the stock held. . . ." For that reason alone, *627 the majority of the Court thought that the language of these provisions was not broad enough to enable the Commission to order the corporation to divest itself of the physical assets thus acquired, although their acquisition aggravated and brought to its final consummation the very evil aimed at by the statute.
The comprehensive language of § 5 neither invites nor supports a narrow construction. It is general in terms, and in the authorized prevention of unfair methods of competition the Commission is not limited to any particular method of making its orders effective. The power does not any the less exist because the Commission framed the present order in part in affirmative terms specifying the manner in which the company should abandon the unfair method of competition it found had been practiced. Nor does the fact that the Commission is not a court of equity lessen the power conferred upon it by the statute. It is of course essentially an administrative agency. Its orders never have the effect of an injunction and are enforcible only by proceedings instituted in the appropriate circuit court of appeals. Its powers are not enhanced by the circumstance that its orders are enforcible in courts having in their own right equity powers. But it is likewise true that it cannot be denied powers granted by Congress merely because its orders resemble in form familiar equitable decrees. To make its want of equity powers ground for limiting those expressly conferred by the statute is to condemn all the orders ever made by the Commission. Orders compelling the sale of stock, preventing price cutting, local price discrimination, resale price maintenance, exclusive dealing arrangements, boycotting, blacklisting, disparagement of competitor's wares, misrepresentation, misbranding, adulteration, dishonest advertising, espionage, commercial bribery, coercion, threats, intimidation, the use of "fighting brands" or bogus independents, to mention *628 only a few of the practices which the Commission has forbidden, remind of equitable relief no less than an order compelling the sale of physical property, the very acquisition and continued possession of which may be the indispensable element in a scheme of unfair competition.
The conclusion seems to me unavoidable, therefore, that this case cannot be disposed of without determining whether the acquisition and retention of the film laboratories by the Eastman Company, under the circumstances disclosed by the record, constituted in itself or was a part of or a step in an unfair method of competition. Until that is determined we cannot say that the Commission was without power under § 5 to make any appropriate order to prevent the use of such methods.
That ruinous competition, or the threat of it, when the aim is monopoly or the suppression of competition, may be the dominant factor in a violation of the Sherman Act is no longer fairly open to question. But, in determining the meaning of "unfair methods of competition," it should be borne in mind that the Trade Commission's function is to discourage certain trade tendencies before violations of the Sherman Act have occurred. The advised use of the phrase "unfair methods of competition" for the more familiar "unfair competition" of the common law indicates an unmistakable Congressional intent to confer on the Commission the power, subject of course to the judicial review provided for in the Act, to prevent unfair trade practices not included in the prohibition of the Sherman Act and of the common law. See Henderson, Federal Trade Commission, 36; cf. Federal Trade Commission v. Winsted Hosiery Co., 258 U.S. 483.
In that part of its order which now remains undisturbed, and which is not questioned here, the Commission has found and forbidden the agreement between the Eastman Company and the Association that the members of the Association would use American raw film, of which *629 it appears ninety-four per cent. of that used in the United States is produced by the Eastman Company, to the exclusion of foreign-manufactured film, provided the Eastman Company would not operate its laboratories commercially to produce positive prints in competition with the members of the Association.
The majority, not having found it necessary to consider whether the stipulated facts established unfair methods of competition because of the Commission's supposed want of power, any extended review of them here is uncalled for. But the evidence is sufficient to justify the inference drawn by the Commission that suppression of competition in the sale of foreign films, consummated by this agreement, was accomplished in part at least by the acquisition and retention of these laboratories as a constant and imminent threat to members of the Association of competition in the business field they occupy.
Superficial examination might suggest that the respondent's course of conduct involves nothing more than the innocuous process of extending its business to include an allied trade, but the matter may not be thus lightly disposed of. We may lay aside the question whether one already possessing monopoly powers in one field, especially where as here there is no available substitute for his products, may make use of his strategic position to dominate all phases of the industry from production to consumption. For here it seems fairly inferable from the stipulated facts that there was no intention of permanent expansion. The Eastman Company threatened to engage in temporary competition with the manufacturers of prints in order to attain its objective  -  the suppression of foreign competition in raw film. When that was attained, the laboratories were allowed to remain idle, and the assumed advantages to the public from permanent competition were lacking. I have no difficulty in concluding that this threat of temporary competition was unfair to the Eastman Company's purchasers and to its *630 foreign competitors, and was an unfair method of competition within the meaning of § 5. Compare Tuttle v. Buck, 107 Minn. 145; Dunshee v. Standard Oil Co., 152 Ia. 618, 626-627; United States v. Corn Products Refining Co., 234 Fed. 964, 984, 1010; United States v. Central West Publishing Co., Decrees and Judgments in Federal Anti-Trust Cases, 359, 360, 362; Thomsen v. Cayser, 243 U.S. 66, 87; for cases which, although not exactly in point, lend support to this view.
It would seem that that part of the order which still stands, forbidding the agreement for the suppression of competition, is futile if the Eastman Company may retain the laboratories as a threat to compel the manufacturers of prints to do that which they could not lawfully agree to do. In my view, the decree below should be reversed and the order of the Commission upheld.
MR. JUSTICE BRANDEIS joins in this dissent.
NOTES
[1]   38 Stat. 717, c. 311; U.S.C., Tit. 15, § 45.
[2]   38 Stat. 730, c. 311; U.S.C., Tit. 15, § 21.