The Link "The government's Total Price Rule forbids the airlines from calling attention to the tax component of the price of a ticket by listing the price the airline charges and then the tax component with equal prominence. The rule mandates that any listing of the tax portion of a ticket's price "not be displayed prominently and be presented in significantly smaller type than the listing of the total price." The government is trying to prevent people from clearly seeing the burdens of government. Timothy Sandefur, of the public-interest, limited-government Pacific Legal Foundation, notes that decades ago the Supreme Court, without justification in the Constitution's text, structure or history, created a binary First Amendment. So today the amendment gives different degrees of protection to two kinds of speech -- strong protection to political speech, minimal protection to commercial speech. The court has never clearly defined the latter but has suggested that commercial speech proposes a commercial transaction between the speaker and the audience. And the court has held that freedom of commercial speech cannot be abridged if the speech is neither false nor deceptive nor related to an illegal activity. Note two things. The airlines' speech the government is regulating with the Total Price Rule would be protected even if it were just commercial speech. And it actually is political speech: It calls its audience's attention to, and invites disapproval of, government policy."
Well, as a lawyer, if I wanted to advertise, every word in the ad (including the name of the law firm) is subject to regulation not only for form (how prominent certain words are) but also for content (what we say, what we don't say, what claims we make about our performance, etc.), so I'm not especially sympathetic. Furthermore, I don't hear George Will or any politicians saying our free speech rights are being crapped on. Nevertheless, I was still a bit outraged after reading the article until I read the actual court opinion. The case and regulation have nothing to do with hiding the tax burden from anybody. Will (whose work I generally like) is harping on the prominence issue, but he ignores the legal definition of prominence, which comes from the DOT's interpretation of its rule. DOT's interpretation (which matters because they're the ones applying the rule), states that the rule means only that the“ ‘break-out of per-person charges cannot be in a more prominent place on a web page or in a print advertisement than the total advertised fare,’ ” such as “ ‘at the top of the page, ahead of the total price,’ ” or with “ ‘special highlighting that sets it apart and makes it more prominent than the total price,’ ” DOT Br. 28–29 (quoting Office of Aviation Enforcement & Proceedings, Dep’t of Transp., Answers to Frequently Asked Questions 22). The agency simply wants the airlines to make the total price prominent so unsophisticated customers (i.e. stupid people) will know the real cost to buy a ticket and get on a plane without having to scour a webpage to find it. If the agency really wanted to hide the taxes, it could prohibit a breakdown altogether or require the taxes to be in fine print. It doesn't do either. Another issue that was raised in the case that Will doesn't talk about at all (and admittedly isn't relevant to his point but makes me even less sympathetic to them) is that the airlines tried to get the court to invalidate the "Price Rule." This is the rule that prohibits airlines from increasing the price of your ticket, carry-on luggage, and first two checked bags after you've purchased your ticket. In other words, the airline would to be able to have this dialogue: AIRLINE OFFICIAL: Excuse me, Sir. I know you paid our asking price of $300 for your ticket 4 months ago, but back then, we didn't know how high the demand for our tickets would ultimately be. Mr. Jones here is willing to pay $600 for your seat, and of course, we aren't going to pull your reservation since you're a valued customer. However, we are increasing the price of your ticket from $300 to $600. Because you are such a valued customer, we are happy to accept your cash, check, or credit card! And I'll have to check with my manager first, but I might even be able to give you a free key chain with our airline's name on it for your trouble. CUSTOMER: Wait a minute, I paid for this ticket! We had a deal! AIRLINE OFFICIAL: Yes, but the law says we can do this. So if you would please stop being difficult and rude and give me another $300, or I will give your seat to Mr. Jones here. Isn't that nice? Doesn't that make you feel sorry for these poor airlines?
