In Rowell v. Pettijohn, the Fifth Circuit deepened the circuit split on whether states’ anti-surcharge laws regulate economic conduct or implicate the First Amendment’s free speech protections. The court held that Texas’s anti-surcharge law, which forbids merchants from imposing surcharges for items purchased with credit cards, but allows the imposition of discounts for cash purchases, regulates economic conduct rather than speech, and therefore does not raise a First Amendment issue. In deciding the case, the court applied faulty reasoning in insisting that there is a meaningful distinction between a surcharge and a discount. This crucial misstep in its analysis led the court to hold that Texas’s anti-surcharge law does not implicate the First Amendment and, therefore, that merchants cannot choose how to label the prices of their goods and services.
Shelby T. Perry, First Amendment Commercial Speech—Swipe Fees Mute Texas Merchants, 70 SMU L. Rev. 197 (2017)