February 6, 2018

Warning! First Amendment rights under attack!

By Deborah J. La Fetra Senior Attorney

The Federal Communications Commission set a safety standard for cell phone (radiofrequency – 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. This wasn’t good enough for Berkeley, California. That city passed an ordinance requiring all cell phone retailers to provide posters and other large documents warning against unsafe cell phone usage and including the city’s advice about “how to use your phone safely.” CTIA, the trade organization representing the retailers, sued to invalidate the ordinance as violating their First Amendment rights by forcing them to express misleading, alarmist statements.

In CTIA v. City of Berkeley, the Ninth Circuit upheld the law as a mere “disclosure,” ostensibly warranted by the government’s “more than trivial” interest in public safety. This holding significantly expanded Supreme Court caselaw that permits government-mandated warnings only in the limited context of factual disclosures related to “preventing deception of consumers.” CTIA petitioned the Supreme Court to hear the case and today, PLF filed an amicus brief supporting the petition. PLF argues 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.

The State of California Department of Public Health recently issued guidelines purporting to address the issue of RF radiation from cell phones. The language used to justify the guidelines exemplifies the vague foreboding typical of the precautionary principle: “Some scientists and public health officials believe RF energy may affect human health. . . . . Although the science is still evolving, some laboratory experiments and human health studies have suggested the possibility that long-term, high use of cell phones may be linked to certain types of cancer and other health effects. . . .” Many studies refute these alarmist suggestions, highlighting the fact that these debates cannot be resolved on a city-by-city basis. 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.

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