Score one for the First Amendment

September 18, 2012 | By DEBORAH LA FETRA

The Ninth Circuit quietly but firmly slapped down a San Francisco ordinance that would require cell phone stores to distribute a “fact sheet” to customers, requiring the disclosure of an alarmist and misleading message about the safety of cell phones, even though the City concedes that there is absolutely no evidence that cell phones have adverse health effects, specifically carcinogenic effects, on human beings.

CTIA-The Wireless Association® sued to enjoin this compelled speech as violating the First Amendment.  The “facts” proposed by San Francisco contradict regulations enacted by the Federal Communications Commission, which adopted Radio Frequency energy emission safety standards to ensure that all cell phone use is safe for the general public.  Nonetheless, despite the clear lack of any evidence of harm, the district court incorrectly held that San Francisco could compel government warnings and recommendations on the basis of nothing more than a “precautionary principle” that there is a possibility that one day cell phones might be shown to carry some risk of harm.  This falls far short of the constitutional standard of Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1986), which allows the government to compel only “purely factual and uncontroversial” speech in some circumstances.

The Ninth Circuit Court of Appeals was having none of this.  In a two-page, unpublished decision, the court held that the “fact sheet” could not be described as “purely factual and uncontroversial” and therefore, its compelled distribution violated the First Amendment.  This is an important slapdown of government overreach.  As explained in PLF’s amicus brief, not only does the First Amendment prohibit the government from dragooning private individuals and businesses to distribute state propaganda, this particular ordinance was a classic example of over-warning and senseless mandatory labeling that ultimately harms consumers and the public interest.