Cross-posted at’s WLF contributor site


To find out what it means to the City by the Bay, read the request for rehearing en banc City Attorney Dennis Herrera filed October 19 with the U.S. Court of Appeals for the Ninth Circuit. The request seeks a full-circuit reconsideration of a Ninth Circuit panel’s September 10 per curiam, unpublished, three-page ruling on the city’s cell phone warning ordinance. As we noted in a previous Legal Pulse post, the panel reversed the District Court and held that a law requiring retailers to inform customers that cell phones may cause cancer violated retailers’ First Amendment rights.

San Francisco urged the Ninth Circuit to

order rehearing en banc to give this important constitutional issue the treatment it deserves, to give San Francisco’s democratically elected policymakers the respect they deserve, and to provide jurisdictions in the circuit with the guidance they deserve.” (our emphasis)

The same city which two years ago banned Happy Meals feels righteous about their progressive, precautionary cell phone warning. The Board of Supervisors jumped ahead of California and the federal government, neither of which has felt the need to warn consumers about the alleged risks. The World Health Organization had classified RF Energy—which cell phones emit—as a “possible carcinogen,” and that was good enough for San Francisco. So of course the city felt dissed by the appeals court’s cursory dismissal.

As for San Francisco’s argument that the unpublished opinion failed to provide sufficient guidance on issues of significant public interest, the city emphasized several questions in the rehearing petition, including:

  • Should courts only apply Zauderer‘s deferential “reasonable relationship” test to government disclosure requirements when the disclosure’s intent is to prevent consumer deception?
  • “Does the First Amendment preclude the government from requiring a health-related disclosure until there is absolute scientific proof that a product is harmful?”
  • Does a disclosure requirement violate “the First Amendment if it includes not merely a description of a health or environmental risk but also statements about how consumers can avoid or mitigate the risk”?

An amicus brief filed yesterday by Environmental Working Group and Public Citizen supports these points and argues that the Ninth Circuit’s ruling creates a circuit split on the First Amendment issues.

In our opinion, the Ninth Circuit reached the right result in its September 10 decision. The “fact sheets” included information, like how consumers could mitigate RF Energy exposure (such as images showing to keep phones away from your brain and your reproductive organs), which conveyed the city’s opinion that cell phones were dangerous. And if the graphic warnings FDA proposed for tobacco products couldn’t withstand First Amendment scrutiny in the D.C. Circuit, then “disclosures” where no evidence exists that cell phone exposure causes cancer certainly should not either.

Those of us who have a constitutional aversion to compelled speech might be tempted to root for en banc review. This case may not be the best vehicle for progressive cities like San Francisco and activist groups like Public Citizen to achieve a precedent favoring government intervention. The brevity of and the dismissive statements in the Ninth Circuit’s opinion could reflect a belief on the court that San Francisco was out on a limb and out of its league with this ordinance. There might be a better than average chance that First Amendment fans would get a more definitive (and precedential) ruling on the issues noted above.

Then again, this is the Ninth Circuit we’re talking about, so there is no guarantee that the case would come out the right way twice.