Tucked within an obscure case involving credit card surcharges that the Supreme Court handed down on Wednesday is some good news for LGBT Americans, and potentially some good news for unionized workers as well.
On the surface, Expressions Hair Design v. Schneiderman has nothing whatsoever to do with LGBT rights or the right to organize. It’s a case challenging the state of New York’s unusual legal regime governing how merchants can treat customers that pay with credit cards.
Chief Justice Roberts’ opinion for the Court holds that a law prohibiting merchants from applying surcharges to credit card transactions is a speech regulation that can be challenged under the First Amendment. That’s a much less ridiculous decision than it sounds.
The law effectively prohibits merchants from upcharging customers who use credit cards, but does not forbid them from offering discounts to customers who pay with cash. So a business that wants to advertise “haircuts cost $10.30, but people who pay cash will get a 30 cent discount” are permitted to do so. But a business which wants to say “haircuts cost $10, but there’s a 30 cent surcharge for people who use credit cards” may not do so, even though there’s no economic distinction between these two pricing schemes.
The most important passage from Roberts’ opinion, however, could be a section explaining that the Court’s decision is narrow and does not give businesses broad license to challenge regulations they would prefer not to comply with on free speech grounds.
Imagine, Roberts writes, “a law requiring all New York delis to charge $10 for their sandwiches.” This law would not raise First Amendment issues, even though it would have some impact on the delis’ speech. Roberts goes on:
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 determining 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, evidenced, or carried out by means of language, either spoken, written, or printed.”
This explanation by Roberts — that a law does not raise First Amendment problems simply because it has some incidental impact on people’s speech — may seem obvious, but it hasn’t been obvious at all to conservative litigators seeking to transform the First Amendment into a weapon against business regulation.
The most comic example of this genre of cases was a suit filed by conservative superlawyer Paul Clement, which claimed that Seattle’s minimum wage law violates the First Amendment because it forces employers to spend money on wages that they could otherwise spend on advertising. That suit did not fare well.
Two other suits seeking to weaponize the First Amendment, however, are more likely to be taken seriously by the Supreme Court. The first, as ACLU LGBT rights attorney Joshua Block notes on Twitter, are a series of lawsuits claiming that the First Amendment gives anti-LGBT business owners a right to discriminate.
Last month, for example, the Washington Supreme Court unanimously ruled against a florist who claimed a free speech right to discriminate against LGBT customers. If she was not allowed to discriminate, she claimed, then she would have to sell flowers to same-sex weddings, and that would somehow convey a message that she endorses such marriages.
Similar cases are common in the lower courts, and the U.S. Supreme Court is likely to feel compelled to weigh in on them if the conservative legal groups bringing these suits eventually find a lower court that is willing to hand them a victory. But Roberts’ opinion in Expressions Hair Design should shut these suits down.
Just as a hypothetical law requiring deli owners to charge a certain price for their sandwiches does not create First Amendment problems even if it does have some incidental impact on speech, Washington’s anti-discrimination law is primarily about preventing discrimination, and any impact it has on people’s speech is merely incidental to that primary effect.
The right to unionize
The other suits that Expressions Hair Design should shut down — at least in a world where precedents actually matter in politically charged cases — are a series of suits seeking to hobble public sector unions.
Shortly before Justice Antonin Scalia’s death, the Supreme Court heard Friedrichs v. California Teachers Association, an effort to strip public sector unions of much of their funding. Friedrichs involved a common provision in union contracts intended to prevent non-union members from enjoying the benefits of being in a union without having to pay their share of the costs.
By law, unions must bargain on behalf of every worker within a bargaining unit, regardless of whether each individual worker actually joins the union. That creates a risk that non-members will gain the higher wages and other benefits that come from unionization — according to one study, workers in unionized shops enjoy a wage premium of nearly 12 percent — while free-riding off the dues their co-workers who join the union pay for these benefits.
Eventually, so many workers could they want something for nothing that the union will lack the funds it needs to adequately represent the bargaining unit, and the entire system collapses.
To prevent this outcome, union contracts often provide for “fair share service fees,” which require non-union members to pay their share of the costs of collective bargaining. The plaintiffs in Friedrichs made a fairly byzantine argument claiming that these contracts violate the First Amendment.
Essentially, they argue that public employers cannot enter into a contract that provides for fair share service fees, because these contracts require employees to pay the union even when they may object to the positions the union takes at the bargaining table — and that is a kind of free speech violation.
But this impact on free speech is, like the speech compelled by Roberts’ hypothetical sandwich law, merely incidental to the union bargaining process. The primary effect of this process is to empower workers, to provide higher wages and better benefits, and to allow employers to negotiate with their employees as a single unit rather than having to reach numerous individual arrangements regarding work conditions. It’s hard to see how the plaintiffs in Friedrichs could prevail under the framework Roberts announced in Expressions Hair Design.
To be sure, it would be naive to assume that Expressions Hair Design will matter if Judge Neil Gorsuch is confirmed to the Supreme Court and a case similar to Friedrichs makes its way to the justices. All four of the Supreme Court’s conservatives, including Roberts, are already on record supporting the plaintiffs in Friedrichs, and Gorsuch is all but certain to provide them with the fifth vote if he is confirmed. Indeed, it is likely that the Friedrichs plaintiffs would have prevailed before the Supreme Court last year if not for Scalia dying before he could provide them with the fifth vote.
But Roberts’ Expressions Hair Design opinion will prove to be quite an awkward embarrassment if Roberts votes to defund public-sector unions in a Friedrichs-style case.