ATLANTA–Is a Florida law that bars merchants from adding surcharges to credit card payments but permits them to discount cash payments actually a matter of free speech?
A lawyer for four Florida merchants is making that argument, alleging that current law unconstitutionally regulates how merchants communicate with their customers, according to the Daily Report. But a lawyer for the state of Florida has countered that the statute regulates only conduct that included "incidental" communication.
The case is now before the U.S. Court of Appeals for the Eleventh Circuit after it was appealed following a district court judge’s ruling that the statute is clearly worded and that the First Amendment does not apply. But the Daily Report said judges for the Eleventh Circuit asked “tough questions” of the Florida Deputy Solicitor General Osvaldo Vazquez, for the state of Florida.
"How can you say it's conduct and not speech that you're regulating?" Judge David Sentelle, visiting from the D.C. Circuit, asked Vazquez, according to The Daily Report. "I don't understand the difference."
The law, § 501.0117, defines a surcharge as any additional amount imposed at the time of a sale or lease "for the privilege of using a credit card to make a payment."
According to the Daily Report, Vazquez argued that the law placed no restrictions on a cashier's words, only on a cashier's actions: implementing a surcharge when a customer presents a credit card to pay for merchandise.
"If you don't learn about it until you pull out your wallet, that's a surcharge, and that's what the statute covers," Vazquez told the Eleventh Circuit, the Daily Report reported.
The judges indicated that they found the distinction confusing, with one judge stating, "It's regulation of the communication … just plain common sense.”
According to the Daily Report, the four merchants were all served with cease-and-desist letters from the Florida attorney general for advertising at their businesses that credit card users were charged extra, an attempt to encourage consumers to pay in cash and spare their businesses the added swipe fees. Upon receipt of the letters, the merchants all eliminated their surcharge policies to avoid criminal charges.