Atlantic Legal Challenges Government-Compelled Private Speech in Cell Phone Case

The Foundation this week filed a friend of the court brief on behalf of the National Association of Manufacturers in CTIA-The Wireless Association v. City and County of San Francisco, in the Ninth Circuit Court of Appeals. The case raises significant issues of First Amendment protections for commercial speech.

In 2011, the City of San Francisco enacted a Cell Phone Right to Know ordinance, which required cell phone retailers to display a large poster in their premises, affix stickers to cell phone displays, and distribute a lengthy leaflet it calls a factsheet, containing the Citys recommendations about who should use cell phones and when and how they should be used.

The City acknowledged that there is no known way to measure the actual amount of radio frequency electromagnetic energy that a user will absorb from a particular cell phone, and that there is no reliable scientific evidence that FCC compliant cell phones cause cancer or other adverse health effects. It nonetheless seeks as a precautionary measure to provide additional information to customers regarding radio frequency energy emitted by cell phones. San Francisco claims to have based its recommendations on studies by the World Health Organization and the Food and Drug Administration, but in fact the City misconstrues and misrepresents those studies in important and material ways, as we detail in our amicus brief. In fact, federal agencies and international scientific bodies have concluded that exposure to non-ionizing radio frequency radiation from cell phone usage is not likely to be carcinogenic. Based on the weight of scientific evidence, the federal government has determined that cell phones lawfully sold in the United States are safe.

If the mere possibility that some hypothetical health risk might exist were a sufficient justification for compelling private speech, local, state or federal government agencies would be able to require individuals, businesses and other organizations to communicate opinions with which they strongly disagree about a wide range of products.

The federal district court correctly found that the requirement that merchants display posters and affix stickers was unconstitutional, but that court erred in authorizing the City to require distribution of a revised factsheet.

In its challenge to the ordinance, CTIA raised two broad objections: first, the ordinance was preempted by federal law and the approval of cell phones by the Federal Communications Commission, the relevant federal agency; and, second, the ordinance violates the free speech rights of the merchants who are being compelled to place the posters, stickers and factsheets in their stores.

Atlantic Legals brief focused on the compelled speech aspect of the First Amendment analysis, and the appropriateness and need for heightened scrutiny in this case. Under U.S. Supreme Court precedent, there are three potential levels of First Amendment scrutiny, depending on the nature of the speech affected, the nature of the governments interest in regulating speech, and the nature of the speech that is being compelled. Strict scrutiny, which bars most government limits or interference with speech, is, we argue, the appropriate standard to apply in this case because the ordinance compels cell phone merchants to convey a message with which they disagree and which is neither factual nor non-controversial: that radiation from cell phones is dangerous. The district court erred in not applying a strict scrutiny standard to all mandates of the ordinance. The next level of scrutiny is heightened scrutiny, as described by the Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980). The district court also erred by failing to apply heightened scrutiny to the speech compelled by the ordinance because the court allowed the city to compel private parties to convey a controversial government message based on, in the courts own words, the mere unresolved possibility that a product may or may not be harmful. The third and least stringent level of scrutiny is a limited exception to heightened scrutiny – that the government can correct misleading commercial speech by adding purely factual and uncontroversial facts, a doctrine enunciated by the Supreme Court in Zauderer v. Office of Disciplinary Counsel (1986).

We argue that the First Amendment guarantees both the right to speak freely and the right to refrain from speaking at all and that the ordinance does not pass any level of scrutiny because the city has not shown that the ordinance and the speech it compels were appropriately tailored to prevent or remediate any realistic health or safety risks, and its enforcement therefore should have been enjoined completely. Here, the government seeks to require private citizens to communicate the governments message, and heightened scrutiny is the rule, not the exception, when the government forces a private party to speak. When the compelled speech is purely factual and uncontroversial and directed at preventing consumer deception, a less rigorous standard for compelled commercial disclosures applies under Zauderer, but when, as here, the message is not purely factual and uncontroversial, the governments requirement that a private party speak must satisfy traditional strict constitutional scrutiny. The ordinance fails intermediate scrutiny because it does not directly advance a substantial governmental interest and is more extensive than is necessary to serve that interest, as required by Central Hudson. Among other reasons, San Francisco has available many alternatives to accomplish its goal of informing the public of the citys concerns about cell phones that do not compel private parties to speak, including purchasing its own advertising time or space.

To view a copy of the Foundations brief, please click here.