Free Speech Challenges to Credit Card Surcharge Laws

I recently helped write and organize an amicus brief urging the Supreme Court to grant cert in Expressions Hair Design v. Schneiderman. The case involves a circuit split on the constitutionality of “no surcharge” laws in New York, Florida, and a few other states. These states allow retailers to give “discounts” to cash and check payers but forbid […]

Still Not a Dump Truck: Net Neutrality and the First Amendment

The D.C. Circuit’s decision in U.S. Telecom Assn. v. FCC came down yesterday. To the delight of net neutrality fans and dismay of many big ISPs, the court held 2-1 that the FCC’s reclassification of broadband under Title II was permissible as a matter of statutory, administrative, and constitutional law. I’m still digesting the first […]

Signs, Sex, and Strict Scrutiny

In the latest installment of the Porn Wars, the Third Circuit Court of Appeals has, upon rehearing, remanded a challenge to the age verification provisions of 18 U.S.C. 2257 / 2257A, with instructions that the district court should apply strict scrutiny in its First Amendment analysis. Perhaps strict scrutiny is not fatal in fact, but […]