Under What Level Of Scrutiny Is Compelled Commercial Speech Reviewed?
In California the City of Berkeley enacted an ordinance that requires cell phone retailers to post or distribute a message to consumers that carrying their cellphone on their person may expose them to excessive amounts of radiation. The city justified this and other compulsions of speech as providing “consumers with the information they need.” The city acknowledged there was 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 was no reliable scientific evidence in the FCC compliant that cell phones caused cancer or other adverse health effects. See Pet. App. 42a (Friedland, J., dissenting) (“Berkeley has not attempted to argue, let alone to prove, that [its] message is true.”). It nonetheless sought as a precautionary measure to provide additional information to customers regarding radio frequency energy emitted by cell phones. They did not make the argument that compelling the speech was necessary to prevent consumer deception.
Under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), the government is subject to intermediate scrutiny when it compels speech unless it seeks to combat misleading commercial speech by requiring the disclosure of “purely factual and uncontroversial information” that is not “unduly burdensome” and is “reasonably related to the State’s interest in preventing deception of consumers.” The Ninth Circuit in this case expanded the Zauderer exception by holding that the government may compel commercial speech, even in the absence of any allegedly false or deceptive communication, as long as the mandated message is “reasonably related to” any “more than trivial” governmental interest and is “literally true.”
Free Enterprise, Individual Liberty, Limited Government
CTIA – The Wireless Association v. Berkeley, No. 17-976 (Supreme Court) (petition stage)
Read the Amicus Brief:
- Whether Zauderer’s reduced scrutiny of compelled commercial speech applies in the absence of any need to prevent consumer deception.
- Whether Zauderer applies when (a) the compelled speech is merely reasonably related to any non-trivial governmental interest and (b) is literally accurate but controversial and potentially misleading when read as a whole.
Federal Courts across the country have asked for clarification of commercial speech standards of review, and Justices Thomas and Ginsburg have recognized this unsettled area of law. Borgner v. Fla. Bd. of Dentistry, 537 U.S. 1080 (2002) (Thomas, J., joined by Ginsburg, J., dissenting from denial of certiorari).
ALF’s Amicus Brief:
In an amicus brief the ALF argues that the Ninth Circuit has eviscerated the Zauderer exception, opening the door to seemingly unlimited government compulsion of speech (Will every city in the United States now compel different speech a company must include in order to sell their product, even if the speech in question is a controversial claim?). Restrictions involving commercial speech that is not itself deceptive must be narrowly crafted to serve the State’s purposes. See Central Hudson, 447 U.S. at 565, 569-571; Zauderer at 644. Compelled disclosures are excepted from strict scrutiny only if they are “purely factual and uncontroversial” and “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651.
Instead of strictly scrutinizing the compelled disclosure, the Ninth Circuit majority expanded the Zauderer exception to include any disclosure that is factually accurate and “reasonably related” to any “more than trivial” government interest – while removing the requirement of deception necessitating correction to protect consumers. The First Amendment guarantees “both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). The Supreme Court in Zauderer balanced the freedom that Americans have to refrain from speech, against government interests in protecting consumers from false speech. The Foundation asks the Supreme Court to grant a writ of certiorari to restore the balance that its precedents have already set.
On June 28, 2018, the petition was simultaneously granted, vacated, and remanded to the Ninth Circuit for further consideration in light of National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, (2018). On remand the Ninth Circuit affirmed that the ordinance did not violate the First Amendment. The subsequent certiorari petition (No. 19-439) was denied on December 9, 2019.
Date Originally Posted: February 8, 2018