Berkeley once marched for free speech

Berkeley once marched for free speech

No one seriously disputes that the government is entitled to adopt broadly applicable laws that require a product seller to disclose truthful information about its product so that consumers can know what they are buying. But governments with increasing frequency have been requiring sellers to convey information that cannot plausibly be deemed the sort of truthful, noncontroversial information that consumers expect to see on product labeling.

Unfortunately, recent decisions suggest that at least some courts are unwilling to protect the First Amendment right of product sellers not to be forced to communicate controversial government messages that they do not wish to convey. Such rulings undermine constitutional protections against compelled government speech that the Supreme Court has consistently recognized for the past 75 years.

A September district court decision upholding Berkeley, California’s effort to compel speech by cell-phone retailers is a prime example of this disturbing trend. CTIA-The Wireless Ass’n v. City of Berkeley upheld the city’s requirement that cell-phone retailers warn customers about supposed safety risks of carrying a cell phone too close to one’s body and thereby exposing oneself to excessive levels of “RF radiation.” While conceding that the Federal Communications Commission has concluded that scientific evidence has not linked “exposure to radio frequency energy from mobile devices with any known health problems,” the court nonetheless upheld a requirement that retailers convey Berkeley’s message that cell phones may pose that very health risk. (An October 9 WLF Legal Pulse post by a former FCC Commissioner takes on the agency’s troubling silence about the Berkeley ordinance)

Even more disturbing than the outcome of the case was the extremely lax standard the court adopted for scrutinizing compelled speech claims. The court concluded that, although the mandated written message is to be conveyed by retailers, it is actually “government speech.” The court reached that remarkable conclusion because the mandated message must include the following preface: “The City of Berkeley requires that you be provided the following message.” In light of that preface, the court concluded, consumers would realize that the message represents the views of Berkeley, not the retailer. Because of its conclusion that the message qualifies as “government speech,” the court scrutinized it under the extremely lenient “rational basis” standard—and the court held that the Berkeley government had not acted irrationally.

The court’s decision is a gross distortion of the “government speech” doctrine. That doctrine permits the government to regulate speech that occurs in settings whose traditional control by the government would lead reasonable observers to conclude that any speech appearing in those settings is the government’s own speech. Thus, the Supreme Court has held that the government is not subject to First Amendment constraints when it imposes content-based speech limits on monuments erected in public parks or on state-issued license plates. But the Court has also made clear that the “government speech” doctrine does not authorize the government to regulate speech outside of such settings, and as the Court recently re-affirmed, it may not be invoked to justify government efforts to “compel private persons to convey the government’s speech.” Walker v. Texas Division, Sons of Confederate Veterans, Inc.

The district court also erroneously concluded that the First Amendment provides fewer protections for commercial entities being compelled to speak by the government than it does for those entities wishing to engage in commercial speech on their own. That conclusion was based on a blatant misreading of the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, a misreading that (unfortunately) has been adopted far too many lower federal courts.

Zauderer never suggested that governments should be given a freer hand when seeking to require commercial entities to speak. To the contrary, it made clear that such compulsion is subject to First Amendment scrutiny at least as strict as that applied to government restrictions on commercial speech: the government must demonstrate that its actions directly advance a substantial government interest and do so in a “narrowly tailored” manner. Zauderer represents a special application of the commercial-speech standard in cases in which the government has a substantial interest in regulating potentially misleading advertising but in which, instead of banning the commercial speech altogether, it seeks to advance its substantial interest by requiring the commercial speaker to disclose additional information designed to minimize the danger that consumers will be misled. Under those circumstances, Zauderer held that a government-compelled disclosure passes First Amendment muster so long as the disclosure is limited to “purely factual and uncontroversial information.”

In this case, Berkeley cannot plausibly contend that the speech it seeks to compel is designed to prevent consumers from being misled. Moreover, its compelled disclosure is anything but “uncontroversial.” Its use of the word “radiation” to describe radio frequency energy is intentionally alarmist. City leaders surely realize that many people associate “radiation” with nuclear energy, not with the sorts of radio waves that we all encounter in everyday life. Moreover, Berkeley’s warning inaccurately suggests that FCC has determined that exposure to radio frequency energy from cell phones is unsafe if the phone is held or stored within one millimeter of one’s body.

The district court bought Berkeley’s claim that every statement contained in its mandated message is literally true. Even if that claim were accurate (and it is not), Berkeley’s message can hardly be deemed “uncontroversial” when it is likely to cause many consumers to inaccurately infer that cell-phone usage raises significant safety concerns. Berkeley is entitled to its own version of science when it speaks in its own name, but the First Amendment does not permit the city to force its unsubstantiated fears into the mouths of others.

The district court’s decision is also troubling because it flies in the face of a 2012 Ninth Circuit decision that struck down a similar effort by San Francisco to compel retailers to disseminate government information about supposed safety risks from cell-phone usage. CTIA-The Wireless Ass’n v. City & Cty of San Francisco. The Ninth Circuit expressly found that the mandated disclosures were not “purely factual and uncontroversial” and thus were constitutionally impermissible. Yet, the district court made no effort to distinguish the 2012 decision. Another appeal to the Ninth Circuit is warranted here in order to protect commercial speech from government compulsion.

Also published by at WLF’s contributor site.