expressions hair design et al schneiderman attorney general new york et argued january decided march new york general business law provides seller sales transaction may impose surcharge holder elects use credit card lieu payment cash check similar means petitioners five new york businesses owners wish impose surcharges credit card use filed suit state officials arguing law violates first amendment regulating communicate prices unconstitutionally vague district ruled favor merchants appeals vacated judgment instructions dismiss appeals concluded context pricing merchants post one price like charge customers pay credit card law required sticker price price charged credit card users context law regulated relationship two prices relying precedent holding price regulation alone regulates conduct speech appeals concluded violate first amendment appeals abstained reaching merits constitutional challenge pricing practices outside context held review limited whether unconstitutional applied particular pricing scheme petitioners argued seek employ regime merchants post cash price additional credit card surcharge pp section prohibits pricing regime petitioners wish employ section define surcharge relying term ordinary meaning appeals concluded merchant imposes surcharge posts single sticker price charges credit card user sticker price generally accord great deference interpretation application state law courts appeals pembaur cincinnati interpretation appeals clearly wrong brockett spokane arcades follows interpretation pp section regulates speech appeals concluded posed first amendment problem price controls regulate conduct speech section however like typical price regulation simply regulates amount store collect law tells merchants nothing amount allowed collect cash credit card payer instead regulates sellers may communicate prices regulating communication prices rather prices regulates speech appeals concluded otherwise determine whether survives first amendment scrutiny remand appeals analyze speech regulation pp section vague applied petitioners explained bans pricing petitioners argue wish employ plaintiff whose speech clearly proscribed raise successful vagueness claim holder humanitarian law project pp vacated remanded roberts delivered opinion kennedy thomas ginsburg kagan joined breyer filed opinion concurring judgment sotomayor filed opinion concurring judgment alito joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press expressions hair design et petitioners eric schneiderman attorney general new york et al writ certiorari appeals second circuit march chief justice roberts delivered opinion time customer pays item credit card merchant selling item must pay transaction fee credit card issuer merchants balk paying fees want discourage use credit cards least pass fees customers use one method achieving ends differential pricing charging credit card users customers using cash merchants wish employ differential pricing may two ways relevant impose surcharge use credit card offer discount use cash gen bus law new york banned former practice question presented whether regulates merchants speech whether statute violates first amendment conclude regulate speech remand appeals determine first instance whether regulation unconstitutional credit cards first introduced contracts card issuers merchants barred merchants charging credit card users higher prices cash customers congress put partial stop practice amendments truth lending act tila amendments prohibited card issuers contractually preventing merchants giving discounts customers paid cash see stat law however said nothing surcharges use credit two years later congress refined dissimilar treatment discounts surcharges first version tila barred merchants imposing surcharges customers use credit cards act stat second congress added definitions two terms discount reduction made regular price surcharge means increasing regular price cardholder imposed upon customers paying cash check similar means ibid congress delineated distinction discounts surcharges defining regular price merchant tagged posted single price regular price single price cash discount act stat price tagged posted merchant employed approach posting one price credit another cash regular price whatever charged credit card users ibid surcharge defined increase regular price credit card surcharge regular price amount charged customers using credit cards effect merchant violate surcharge ban posting single price charging credit card users posted price federal surcharge ban short lived congress allowed expire renewed ban since see ibid provision preventing credit card issuers contractually barring discounts cash however remained place lapse federal surcharge ban several new york among immediately enacted surcharge bans passed gen bus law adopted operative language federal ban verbatim providing seller sales transaction may impose surcharge holder elects use credit card lieu payment cash check similar means gen bus law ann west see also unlike federal ban new york legislation included definition surcharge addition state legislative bans credit card companies though barred prohibiting discounts cash included provisions contracts prohibiting merchants imposing surcharges credit card use history new york law essentially coextensive contractual prohibitions recent years however merchants brought antitrust challenges contractual provisions suits created uncertainty legal validity contractual surcharge bans result otherwise redundant legislative surcharge bans like increasingly gained importance increasingly come scrutiny petitioners five new york businesses owners wish impose surcharges customers use credit cards time one customers pays credit card merchants must pay transaction fee company issued credit card fee generally two three percent purchase price fees add merchants allege pay tens thousands dollars every year credit card companies rather increase prices across board absorb costs merchants want pass fees along customers choose use credit cards also want make clear bad guys credit card companies merchants responsible higher prices merchants believe surcharges credit effective discounts cash accomplishing goals several major credit card issuers agreed drop contractual surcharge prohibitions merchants filed suit new york attorney general three new york district attorneys challenge remaining obstacle charging surcharges credit card use relevant argued law violated first amendment regulating communicated prices unconstitutionally vague liability law turn ed blurry difference surcharges discounts app complaint district ruled favor merchants read statute draw ing line prohibited permissible based words labels rather economic realities supp sdny concluded law therefore regulated speech violated first amendment commercial speech doctrine addition law turned virtually incomprehensible distinction vendor tell customers district found law unconstitutionally vague appeals second circuit vacated judgment district instructions dismiss merchants claims began considering pricing merchants post one price like charge customers pay credit card law context appeals explained regulate relationship two prices sticker price price charged credit card user requiring two prices equal relying precedent holding price regulation alone regulates conduct speech appeals concluded violate first amendment also considered types pricing regimes example posting separate cash credit prices appeals thought far clear prohibited pricing schemes federal surcharge ban modeled apply outside context merchants clearly shown broader reach federal law ibid deciding petitioners challenge regard turn ed unsettled question state law appeals abstained reaching merits constitutional question beyond context citing railroad tex pullman granted certiorari ii preliminary matter note petitioners present us limited challenge observing merchants always particularly clear scope suit appeals deemed bringing facial attack well challenge application statute two particular pricing regimes pricing pricing us however merchants disclaimed facial challenge assuring us challenge see tr oral arg remains question precise application law seek challenge although merchants presented wide array hypothetical pricing regimes expressly identified one pricing scheme seek employ posting cash price additional credit card surcharge expressed either percentage surcharge additional amount see app tr oral arg pricing approach petitioner expressions hair design might example post sign outside salon reading haircuts add surcharge pay credit card petitioner brooklyn farmacy soda fountain might list one sundaes menu costing surcharge credit card users take petitioners word limit review question whether unconstitutional applied particular pricing iii next question whether prohibits pricing regime petitioners wish employ appeals concluded read surcharge mean additional amount seller regular price found basically applies sellers post single sticker price sticker price price sellers may charge customers additional amount sticker price also charged cash customers interpretation signs kind merchants wish post surcharge credit card users violate identify one sticker price indicate credit card users charged amount generally accord great deference interpretation application state law courts appeals pembaur cincinnati deference warranted render unnecessary review decisions respect lower federal courts better schooled able interpret laws respective brockett spokane arcades quoting cort ash internal quotation marks omitted surely authority differ lower federal courts meaning state statute done instances lower construction clearly wrong plain error internal quotation marks omitted case section define surcharge appeals looked ordinary meaning term charge excess usual normal amount quoting webster third new international dictionary internal quotation marks omitted seller posts single sticker price reasonable treat sticker price usual normal amount conclude merchant imposes surcharge charges credit card user sticker price short dismiss appeals interpretation clearly wrong accordingly consistent customary practice follow interpretation iv concluded bars pricing regime petitioners wish employ turn constitutional arguments law unconstitutionally regulates speech impermissibly vague appeals concluded posed first amendment problem law regulated conduct reaching conclusion appeals began premise price controls regulate conduct alone see liquormart rhode island plurality opinion thomas concurring part concurring judgment concurring judgment section regulates relationship seller sticker price price seller charges credit card customers requiring two amounts equal law regulating relationship two prices regulates speech law regulating single price appeals concluded therefore simply conduct regulation like typical price regulation regulation example law requiring new york delis charge sandwiches simply regulate amount store collect words regulate sandwich seller conduct sure order actually collect money store likely put menus employees tell customers price written oral communications speech law determining amount charged indirectly dictate content speech law effect speech incidental primary effect conduct never deemed abridgment freedom speech press make course conduct illegal merely conduct part initiated evidenced carried means language either spoken written printed rumsfeld forum demic institutional rights quoting giboney empire storage ice internal quotation marks omitted see also sorrell ims health section different law tells merchants nothing amount allowed collect cash credit card payer sellers free charge cash amount credit law regulate sellers may communicate prices merchant wants charge cash credit may convey price way pleases free say credit card surcharge plus credit displays identify single sticker price less amount credit card users charged instead merchant wishes post single sticker price must display sticker price accordingly agree appeals regulates relationship sticker price price charged credit card users accept conclusion nothing price regulation regulating communication prices rather prices regulates speech concluded otherwise appeals occasion conduct inquiry whether speech regulation survived first amendment scrutiny question parties dispute whether valid commercial speech regulation central hudson gas elec public serv whether law upheld valid disclosure requirement zauderer office disciplinary counsel ohio review first view nautilus biosig instruments slip internal quotation marks omitted accordingly decline consider questions first instance instead remand appeals analyze speech given way merchants presented case vagueness challenge gives us little pause pricing practice express interest employing regime listing one price separate surcharge amount explained bars plaintiff whose speech clearly proscribed raise successful vagueness claim holder humanitarian law project although merchants argue one seem put finger far law sweeps brief petitioners least clear proscribes intended speech accordingly law vague applied judgment appeals second circuit vacated case remanded proceedings consistent opinion ordered breyer concurring judgment expressions hair design et petitioners eric schneiderman attorney general new york et al writ certiorari appeals second circuit march justice breyer concurring judgment agree new york statute regulates speech virtually government regulation affects speech human relations take place speech human relations include community activities kinds commercial otherwise government seeks regulate activities often wiser try distinguish speech conduct see post democracy expertise academic freedom instead normally simply ask whether challenged statute rule regulation affects interest first amendment protects example challenged government regulation negatively affects processes political discourse public opinion formed expressed interests close first amendment protective core courts normally scrutinize regulation great care see boos barry challenged regulation restricts informational function provided truthful commercial speech courts apply lesser still elevated form scrutiny central hudson gas elec public serv however challenged regulation simply requires commercial speaker disclose purely factual uncontroversial information courts apply permissive standard review zauderer office disciplinary counsel ohio kind regulation normally minimal effect first amendment interests normally need reasonably related state interest preventing deception consumers ibid courts apply similarly permissive standard review regulatory legislation affecting ordinary commercial transactions carolene products since legislation normally significantly affect interests first amendment protects normally look assurance legislation rests upon rational basis ibid repeat general standards judicial approaches believe determining proper approach typically important trying distinguish speech conduct see sorrell ims health breyer dissenting parties differ approach applies difference reflects fact clear new york law face law seems simply tell merchants charge higher prices users ordinary piece commercial legislation subject rational basis review see liquormart rhode island opinion stevens may however make sense interpret statute working like expired federal law replaced require merchant posts prices wants charge higher price simply disclose price see ed see also post sotomayor concurring judgment case though affecting merchant speech hinder transmission information public merchant remain free say whatever wanted long also revealed price customers accordingly law still receive deferential form review see zauderer supra nonetheless petitioners suggest statute see brief petitioners arguing statute forbids raming price difference credit surcharge statute operation unclear interpretation matter state law agree majority remand case second circuit also agree justice sotomayor remand may well helpful second circuit ask new york appeals clarify nature obligations statute imposes see comp code rules tit rule permitting appeals certify dispositive questions new york law new york appeals sotomayor concurring judgment expressions hair design et petitioners eric schneiderman attorney general new york et al writ certiorari appeals second circuit march justice sotomayor justice alito joins concurring judgment addresses one part one half petitioners first amendment challenge new york statute issue outcome worse none vacate judgment remand directions certify case new york appeals definitive interpretation statute permit full resolution petitioners claims thus concur judgment new york prohibits merchants impos ing surcharge customer elects use credit card lieu payment cash check similar means gen bus law ann west merchant violates prohibition commits misdemeanor risks fine exceed five hundred dollars term imprisonment one year ibid section interpreted several ways first read prohibition impos ing surcharge credit card customers appears prohibit charging customers pay credit card pay means see black law dictionary ed surcharge means additional tax charge cost may require merchant charge customers price matter form payment earlier federal law containing almost identical prohibition muddies path plain text reading amendment truth lending act set temporary prohibition barring seller sales transaction impos ing surcharge cardholder elects use credit card lieu payment cash check similar means stat amendment also defined surcharge means increasing regular price cardholder imposed upon customers paying cash check similar means ibid egular price later defined mean displayed price merchant displayed one price credit card price merchant either display prices displayed cash credit card prices stat definition merchant violated federal prohibition impos ing surcharge displaying form one price cash price charging credit card customers higher federal law lapsed new york enacted sets ban impos ing surcharge new york borrowed federal prohibition almost verbatim chose without explanation borrow federal definitions enact clarifying definitions difference laws leaves open least three interpretations read line plain text require merchant charge price customers read line lapsed federal ban permit merchant charge different prices cash credit card customers prohibit merchant displaying form cash price charging credit card customers higher price reading apply merchant displays form credit card price charges lower price cash customers merchant displays cash credit card prices form read broadly based omission definitions limited federal ban scope reading might prohibit merchant characterizing difference cash credit card prices surcharge matter displays confirming elusive nature new york pressed almost interpretations litigation district viewed mirroring lapsed federal ban see supp sdny second circuit offered lapsed federal ban narrowing interpretation thus suggesting applies broadly provision see explained prosecutorial entities new york bound interpretation interpretations state district attorneys parties case leaving open possibility still interpretations see tr oral arg petitioners five new york merchants customer pays credit card petitioners like merchants charged processing fee card issuer petitioners want pass fee credit card paying customers cash paying customers want charge cash customers one price credit card customers higher price includes processing fee one petitioner expressions hair design currently pass costs credit card processing fees credit card paying customers four charge one price customers set prices account processing fees predict incur five prefer use different pricing system display ones use expressions hair design five points academy like charge cash credit card customers two different prices display cash price alongside extra charge credit card customers say credit card charge credit card charge brooklyn farmacy soda fountain brite buy wines spirits want charge cash credit card customers two different prices characterize difference prices surcharge display convey prices customers app five use preferred pricing systems displays fear violating expressions hair design five points academy believe prohibits pricing display convey credit card processing costs impermissibly surcharge rather permissibly discount say discount cash payment discount cash payment three petitioners believe regulates describe difference cash credit card prices view clearly state regulates descriptions decided uncertainty counsels change petitioners view unconstitutional restriction ability display describe prices customers sued challenged law first amendment grounds ii resolving petitioners challenge requires accurate picture exactly statute works understanding needed decide whether prohibits petitioners preferred pricing systems displays whether prohibition consistent first amendment see ante second circuit decide far extends instead decided applies part petitioners challenge pricing display expressions hair design five points academy wish use declined decide even applies rest challenge evades easy interpretation partial decision neither required right erred asking new york appeals definitive interpretation errs correcting given constitutional challenge turned interpretation ambiguous state statute yet definitively interpreted state courts second circuit faced problem interpretation gave authoritative since state courts federal courts final word interpretation state statutes two routes abstention certification solution allowed secure authoritative interpretation resolving constitutional challenge context abstention certification serve goals recognize outcome constitutional challenge turns proper interpretation state law federal resolution constitutional question may turn unnecessary state courts later interpret state statute differently state different interpretation might result statute implicates constitutional question renders federal constitutional analysis irrelevant see arizonans official english arizona brockett spokane arcades concurring abstention certification avoid risk deferring federal decision constitutionality state statute state authoritatively resolved antecedent question abstention blunt instrument railroad tex pullman federal decision abstain sends plaintiff state plaintiff obtains state courts views statute may return federal decision hand resolution constitutional question pullman abstention thus entail full round litigation state system resumption proceedings federal arizonans official english certification offers precise tool authorized certification federal may put question directly state highest reducing delay cutting cost increasing assurance gaining authoritative response ibid rule relevant typical certification statutes new york allows federal appeals certify determinative questions new york law involved case pending controlling precedent appeals exists new york appeals comp code rules tit rule decision certify rests sound discretion federal lehman brothers schein repeatedly emphasized certification offers clear advantages abstention ere difficulty ascertaining local law excuse abstaining remitting parties state tribunal start another lawsuit keeping case waiting answer certified question fully resolving issues long run save time energy resources helps build cooperative judicial federalism result availability certification greatly simplifies analysis whether abstain bellotti baird see also arizonans official english certification today covers territory dominated deferral device called pullman abstention internal quotation marks omitted described abstention particularly problematic challenge state statute rests first amendment cf virginia american booksellers certification contrast cumbersome context problematic abstention doctrine method may expeditiously obtain construction houston hill chose convoluted course rejected certification abstained part decided question part dividing petitioners challenge two parts first part held prohibit pricing display expressions hair design five points academy prefer displaying cash price alongside credit card found application consistent first amendment see second part declined address whether speaks unconstitutionally restricts petitioners wish display cash credit card prices form describe difference prices see doubted whether reach broadly assumed even new york state courts construe statute narrowly line lapsed federal provision declined certify question chose instead abstain deciding part petitioners challenge see even though new york responsible enforcing never quite abandon ed position might reach broadly lapsed federal provision second circuit exercised discretion certify antecedent question pricing schemes pricing displays prohibit certification might avoided need constitutional ruling altogether state reads price regulation constitutional concerns implicated compare liquormart rhode island plurality opinion direct regulation prices involve restriction speech virginia bd pharmacy virginia citizens consumer council price advertisements contain protected speech convey merchant sell prescription drug certification might limited scope constitutional challenge case state reads mirror lapsed federal ban eliminate need constitutional ruling second part petitioners challenge premised reading prohibits lapsed federal ban least certification allowed resolve petitioners entire challenge one go second circuit declined exercise discretion certify viewed state record underdeveloped thought new york appeals interpret resolve challenge based record issues pure questions law whether prohibits petitioners preferred pricing displays statutory interpretation question new york appeals whether survives petitioners first amendment challenge constitutional question second circuit issues turn limited set facts pricing systems displays petitioners wish use discussed record contains facts state record thus counsel certification given significant benefits certification offered given absence persuasive downsides identified second circuit decision certify abuse discretion consequences decision certify reverberate throughout opinion today lack definitive interpretation chooses address first part petitioners challenge defer second circuit partial interpretation ante holds restrict constitutionally protected speech ante decide whether restriction constitutionally permissible require answer question case whether statute permits pricing schemes like one expressions currently uses ante sends case back second circuit proceedings ante iii complexity case might avoided arizonans official english second circuit certified question meaning case first opinion foreclose second circuit choosing route remand rather contributing piecemeal resolution case vacate judgment remand instructions certify case new york appeals allow definitively interpret thus concur judgment footnotes petitioner expressions hair design currently posts separate prices cash credit posts something like cash credit displays prices way however considers compelled challenged law wants charge different prices prior becoming aware law expressions posted single prices along notice informing customers three percent surcharge added bill paid credit card expressions indicated prefer return prior practice see app complaint given petitioners representations narrow scope challenge limit consideration pricing regime present purposes petitioners affidavits briefing reference potential pricing schemes may considered appeals extent deems appropriate see brief petitioners relying fully claim regulated speech petitioners advance argument appeals constitutionally problematic even deemed regulation conduct see noting petitioners challenged assess statute constitutionality appeals may need consider question need answer whether statute permits pricing schemes like one petitioner expressions currently uses see supra respondents argument constitutionally valid disclosure requirement rests interpretation statute allows schemes similar reasons petitioners related argument regarding abstention longer issue appeals abstained deciding whether constitutional outside context merchants disavowed intent challenge law outside context footnotes interpretation lapsed federal ban offered accepted majority purposes opinion assume interpretation correct section sparse enforcement history clear ambiguity new york pursued one prosecution resulted conviction later set aside appeal decision supports require giving broader reading lapsed federal ban see people fulvio misc stating permits conviction careless enough describe higher price terms amount price derived adding charge lower price emphasis deleted recent enforcement spree opaque group merchants state customer called asking prices quote cash price tell customers charged example surcharge payment credit card see app state new york attorney general office told violated directed stop explained comply quoting credit card price offering discoun payment cash ibid merchants acts violated lapsed federal ban stating single cash price charging higher price credit card customers recent enforcement actions demonstrate prohibits acts stretches new york attorney general lacks adopt interpretation binds prosecutorial entities state enforcement actions speak attorney general may interpret see tr oral arg multiple available interpretations render vague violate due process clause render ambiguous enough warrant asking new york appeals resolve statute meaning new york appeals regularly accepts answers certified questions see flo eddie sirius xm radio certified apr pasternack laboratory holdings june certified matter viking pump may certified june beck chevrolet general motors llc may certified may ministers missionaries benefit bd snow certified mar second circuit actively vigorously employed certification kaye tribute judge guido calabresi annual survey noting based service chief judge new york appeals certification second circuit done enormous amount bridge gap state federal systems truly engage plain text reading merchant may charge different prices cash credit card customers see free consider reading remand light constitutional holding invoking interpretive rule deference lower federal construction law state within jurisdiction line general principle resolve issues state law read deference second circuit holding defer lower federal interpretation state law even cast serious constitutional doubt invalidate state law rule incorrect see frisby schultz describing lower courts interpretation plain error extent endorsed broad reading law issue lower courts ran afoul principle statutes interpreted avoid constitutional difficulties silence relevance avoidance canon second circuit interpretation consistent unexpressed conclusion disagree narrowing construction available avoid constitutional concerns broader constriction raises constitutional concerns