“The decision below, if left to stand, would allow government regulators to transform a First Amendment test created to correct false or misleading speech into a justification for foisting false or misleading speech onto the public.”
—Cory Andrews, Vice President of Litigation
Click here for WLFs brief.
(Washington, D.C.)—Washington Legal Foundation (WLF) today filed an amicus curiae brief urging the U.S. Supreme Court to review—and ultimately to strike down—a Berkeley, California ordinance that requires all cell-phone retailers to warn their customers about the supposed dangers of ordinary cell-phone use.
The petition marks CTIA’s second time asking the high court to review the Berkeley ordinance. The Court granted an earlier petition without opinion in 2018, vacating a decision of the U.S. Court of Appeals for the Ninth Circuit that upheld the ordinance and remanding the case for reconsideration in light of National Institute of Family and Life Advocates v. Becerra (2018). Even so, the Ninth Circuit once again sustained the ordinance against a First Amendment challenge, holding that the city’s mandated warning qualifies as a purely factual and noncontroversial disclosure under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985).
Berkeley’s mandated warning informs cell-phone users how to avoid the purported dangers of being overexposed to radiofrequency (RF) from their cell phones. But the Federal Communications Commission (FCC), in concert with other federal agencies responsible for ensuring health and safety, already ensures that U.S. cell phones have RF-exposure limits 50 times below the level of any adverse biological effect. As a result, the FCC has determined that any cell phone legally sold in the United States is a “safe phone.”
In its brief, WLF explains that by divorcing the government’s authority to compel speech from any need to remedy pre-existing commercial speech, the decision below grants Berkeley a roving commission to compel speech entirely on its own terms. The city’s mandated warning is thus not a traditional commercial-speech disclosure under Zauderer, but a freestanding speech compulsion subject to strict scrutiny. And even if Zauderer applies, WLF’s brief argues, Berkeley’s mandated warning misleads readers into believing that ordinary cell-phone use may be dangerous. Not only is that message intentionally misleading, it is highly controversial and thus cannot pass constitutional muster under Zauderer.
Celebrating its 42nd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.