June 28, 2018

Supreme Court tells Ninth Circuit to protect First Amendment rights

By Deborah J. La Fetra Senior Attorney

Last year, the Ninth Circuit rejected cell phone retailers’ First Amendment claim challenging the City of Berkeley’s ordinance requiring the retailers to display posters and other large documents warning against unsafe cell phone usage and including the city’s advice about “how to use your phone safely.” The retailers’ trade association, CTIA, petitioned the Supreme Court to review the case, and PLF filed an amicus brief supporting the petition. Today, in the last order list of the Term, the Supreme Court granted the petition in CTIA v. City of Berkeley, vacated the Ninth Circuit decision, and ordered the lower court to reconsider CTIA’s claims in light of its decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra, which held that a law requiring pro-life pregnancy centers to advertise abortions violated the centers’ freedom of speech.

The underlying issue in CTIA involves warnings related to cell phone (radiofrequency – RF) radiation. The Federal Communications Commission set a safety standard for RF radiation fifty times greater than necessary to ensure that users are not exposed to harmful amounts of radiation and requires manufacturers to provide information about safe phone usage in their user manuals. The Berkeley City Council decided this wasn’t enough and required its own warnings. CTIA sued to invalidate the ordinance as violating retailers’ First Amendment rights by forcing retailers to express misleading, alarmist statements. The district court rejected their claim and the Ninth Circuit agreed, holding that the ordinance was a mere “disclosure,” ostensibly warranted by the government’s “more than trivial” interest in public safety.

Even prior to NIFLA, which reversed the Ninth Circuit, this holding conflicted with constitutional cases that permit government-mandated warnings only in the limited context of factual disclosures related to “preventing deception of consumers.” NIFLA confirms the narrow context in which the state may compel factual disclosures and chastises the Ninth Circuit for imagining some “unique category” of speech that it “exempt[ed] from ordinary First Amendment principles.” PLF’s brief argued that the Court should take the case to hold that mandatory, alarmist warnings are incompatible with the First Amendment right to control one’s own expression. Government does not have a blank check to mandate speech based on “consumer curiosity,” the “possibility of harm,” or other nebulous “right to know” theories. So long as cell phone retailers comply with federal disclosure requirements, they have a First Amendment right to refrain from unwillingly parroting the government’s preferred speech. Let’s hope the Ninth Circuit gets it right this time.

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