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City of Berkeley: “Your Cell Phone Might Kill You.”

The City of Berkeley wants us all to know that our cell phones might kill us.  It is very concerned about it.  In fact, it is so concerned that it enacted an ordinance requiring cell phone retailers to provide customers with a notice informing them of the health risks posed by cell phone use.

CTIA, a cell phone trade association, sued Berkeley and argued the required disclosure violates cell phone retailer’s First Amendment rights.   The Ninth Circuit disagreed, and, for the first time, decided that the government can require a private company to make specific statements to consumers if the required statements are related to a substantial government interest and are purely factual.

Will your cell phone kill you?  Can the government really tell you what you have to say?  Here’s what you need to know.

Apparently, Cell Phones are Radioactive

Apparently, cell phone use exposes us all to radio-frequency radiation (“RF”). In 1996, the FCC issued regulations limiting the amounts of RF that a cell phone can expose a consumer to.   61 Fed. Reg. 41006.  These regulations imposed limits based upon recommendations from the Environmental Protection Agency, the FDA, and various other federal agencies.

RF sounds scary as AF, but there has been no study conclusively proving that our exposure to RF from cellular devices is harmful.  Despite this fact, the FCC still adopted the above regulation in 1996, and refused to modify it to exclude cell phones in 2013.   The FCC’s approach has been “better safe than sorry” when it comes to cell phones and RF exposure.

Berkeley Thinks RF is Scary AF

In May 2015, Berkeley enacted an ordinance which requires cell phone retailers to issue a notice to all cell phone consumers that includes this language:

To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.  Refer to the instructions in your phone or user manual for information on how to use your phone safely.

Berkeley Mun. Code. 9.96.030(A) (2015).

CTIA was not happy and sued Berkeley for violating the First Amendment rights of cell phone retailers.   CTIA v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017).  You probably know about freedom of speech under the First Amendment.  What you may not know is that commercial speech is treated differently than personal speech.

Commercial Speech is Treated Differently Than Personal Speech Under the First Amendment

Although the First Amendment guarantees us all the right to free speech, that right has limits.  One area in which speech is frequently regulated (i.e., not truly “free”) is “commercial speech.”  Commercial speech is speech that is solely related to “economic interests.”   Central Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Commercial speech can be regulated in two ways.  One, the government can try to tell retailers what they cannot say.  When that happens, the government does not violate the First Amendment if the restriction is (1) related to a substantial government interest, (2) directly promotes that interest, and (3) is only as restrictive as necessary.  Central Hudson, 447 U.S. at 566.

Alternatively, the government can try to tell retailers what they have to say. When the government tries to tell a retailer what they have to say, the government might not violate the First Amendment if (1) the compelled speech is related to a substantial government interest, and (2) requires disclosure of purely factual information.   Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 650-51, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985).

There is a Bit of a Debate About When the Government Can Tell You WHAT You HAVE to Say

Zauderer was a lawsuit in which the U.S. Supreme Court addressed the issue of what attorneys should be required to say to their clients where the attorney’s prior statements deceived clients.  471 U.S. at 650-51.  The Court held that the government could require attorneys to make disclaimers because the disclaimers were (1) related to a substantial government interest (i.e., protecting clients), and (2) were purely factual (i.e., this is what the lawyer is going to do, charge, etc.).  Id.

Since Zauderer, the federal courts have debated whether the test in Zauderer applies to all compelled commercial speech.  Some courts think that the Zauderer test only applies when the compelled commercial speech is intended to prevent deception, and not when a government entity is merely requiring a retailer to disclose facts.

In the Ninth Circuit, Zauderer Applies Even If the Speech is Not Intended to Prevent Deception. 

Faced with CTIA’s challenge to Berkeley’s ordinance, the Ninth Circuit decided that Zauderer applies even when the compelled speech is not intended to prevent consumer deception.  CTIA, 854 F.3d at 1117.  The Ninth Circuit believes that there are many other government interests that can be furthered by compelled commercial speech.  Id.    If the interest is substantial, and the compelled disclosure is purely factual, the government does not violate the First Amendment by compelling commercial speech.  Id.

Applying its version of the Zauderer test to Berkeley’s ordinance, the Ninth Circuit found that CTIA will have a very difficult time proving that the ordinance violates the First Amendment.  Id. at 1118-19.

First, protecting the health and safety of consumers is clearly a substantial government interest.  Although no study has conclusively proven that RF poses a true threat to our health, the FCC apparently believes that it is in the government’s best interest to adopt a better-safe-than-sorry approach.  Berkeley’s ordinance furthers that interest.

Second, the compelled disclosure is purely factual.  Every sentence of it is literally true.  And even if it weren’t, Berkeley specifically allows cell phone retailers to add their own language to the end of the disclosure if they are concerned that it is inflammatory or misleading.

Finally, CTIA was not able to point to any evidence of a Berkeley citizen believing that their cell phone was actually going to kill them because of the notice.

BUT WAIT, There’s More

By trying to tell us that our phones are probably, maybe, possibly going to kill us, Berkeley opened a Pandora’s box of First Amendment law.  The debate in the Ninth Circuit over when and how the government can compel commercial speech will not end with the CTIA lawsuit.

CTIA has now twice sought rehearing of the Ninth Circuit’s decision.  First, it filed a “petition for rehearing,” which is a request for an appellate court to reconsider its ruling because it overlooked facts or misapplied the law.  The Ninth Circuit denied CTIA’s request to reconsider its application of Zauderer. 

Then, CTIA filed a “petition for en banc reconsideration,” which is a request to have 11 Ninth Circuit judges reconsider the decision.  Did I confuse you?  Here’s a quick crash course in how the Ninth Circuit works.  There are 29 Ninth Circuit judges.  Most appeals are heard by 3 judges, who issue the decision.  “En banc” means that 11 judges hear the appeal.

The Ninth Circuit judges declined to grant the petition for en banc consideration.  Judge Wardlaw, who is not one of the judges that rendered the decision applying Zauderer, wanted to grant en banc consideration because she believes that (1) Zauderer should only apply to speech intended to prevent consumer deception, (2) interpreting Zauderer to protect compelled disclosures beyond that narrow category infringes on First Amendment rights, and (3) an en banc Ninth Circuit should consider the issue instead of a 3-judge panel.  CTIA v. City of Berkeley, 873 F.3d 774 (9th Cir. Oct. 11, 2017) (Wardlaw, J., dissenting).   Judge Wardlaw ended her dissent with the affirmation that she is “looking forward to our next compelled disclosure case.”  Id.

Does this mean that the Ninth Circuit’s approach with Zauderer will change?  Only if enough judges agree with Judge Wardlaw.  Otherwise, for now, Berkeley is free to warn us that our cell phones might kill us.

I, for one, appreciate the City of Berkeley’s concern.  I’m still going to ignore the warning and use my phone too much, though.  #priorities