The case of Expressions Hair Design v. Schneiderman, 2016 revolved around a New York law that prohibited businesses from imposing surcharges on customers who chose to pay with credit cards but allowed discounts for those paying in cash. The plaintiffs, five businesses and their owners, argued that the law violated their First Amendment rights by controlling how they communicated their prices. They contended it was easier to impose surcharges than offer discounts due to psychological factors affecting consumer behavior. However, the Second Circuit Court ruled against them stating the law regulated conduct rather than speech because price is a matter of numbers not words. The U.S Supreme Court vacated this judgment and remanded the case back for reconsideration under First Amendment principles as it found that communication about prices (not just prices themselves) were affected by this statute; hence there was an element of free speech involved which required further scrutiny.

In the dissenting opinion for Expressions Hair Design v. Schneiderman, Justice Breyer argued that the New York law in question did not regulate speech but rather regulated conduct. He contended that the statute merely prohibited businesses from imposing surcharges on customers who choose to pay with credit cards, which is a form of economic regulation and not a restriction on free speech. Therefore, he believed it should be analyzed under rational basis review - a more lenient standard of judicial scrutiny - instead of heightened scrutiny as applied by the majority opinion. Under this standard, he concluded that there was no First Amendment violation because states have legitimate interests in preventing consumer deception and maintaining an efficient marketplace.