Prepare to be gouged (more than you normally are):
Anyone who has ever made a purchase at a gas station, corner store, or shopping mall will not be shocked to learn that swiping a credit card is often more expensive than is paying with cash. What may be shocking to learn is that Florida makes it a second-degree misdemeanor for “[a] sellor or lessor in a sales or lease transaction” to “impose a surcharge on the buyer or lessee for electing to use a credit card,” Fla. Stat. § 501.0117(1)–(2), while the State expressly allows “the offering of a discount for the purpose of inducing payment by cash.” Id. § 501.0117(1). Tautologically speaking, surcharges and discounts are nothing more than two sides of the same coin; a surcharge is simply a “negative” discount, and a discount is a “negative” surcharge. As a result, a merchant who offers the same product at two prices—a lower price for customers paying cash and a higher price for those using credit cards—is allowed to offer a discount for cash while a simple slip of the tongue calling the same price difference a surcharge runs the risk of being fined and imprisoned.Live free or die, plebes (no surcharge has been applied to this blog post....yet)!
The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference. Florida’s no-surcharge law directly targets speech to indirectly affect commercial behavior. It does so by discriminating on the basis of the speech’s content, the identity of the speaker, and the message being expressed. Because the at-best plausible justifications on which the no-surcharge law rest provide no firm anchor, the law crumbles under any level of heightened First Amendment scrutiny. We, therefore, must strike down § 501.0117 as an unconstitutional abridgment of free speech.