Wednesday, July 3, 2019
2-1 Decision Affirms Denial of Preliminary Injunction to Block Berkeley Ordinance;
Judge Friedland Dissents, Saying the Measure Compels Speech That Is False
By a MetNews Staff Writer
A City of Berkeley ordinance mandating retailers of cell phones to warn of health risks from the use of such devices was upheld yesterday by the Ninth U.S. Circuit Court of Appeals in a 2-1 decision, which follows a remand from the U.S. Supreme Court.
Judge William Fletcher wrote for the majority in affirming a denial of a preliminary injunction to stay enforcement of the ordinance, which requires warnings in a posted notice or handout. Judge Morgan Christen joined in Fletcher’s opinion and Judge Michelle T. Friedland dissented in part, declaring that the plaintiff, CTIA (formerly “Cellular Telephone Industries Association”) is likely to prevail on its First Amendment claim, explaining:
“It is clear that the First Amendment prevents the government from requiring businesses to make false or misleading statements about their own products….Because—at least on the current record—that is what Berkeley’s ordinance would do, I believe the ordinance violates the First Amendment and therefore should have been preliminarily enjoined.”
The Ninth Circuit’s initial opinion in the case was filed April 21, 2017. Fletcher and Christen were in the majority and Friedland dissented. On Oct. 11, 2017, and order was filed denying a petition for a rehearing en banc, to which Judge Kim Wardlaw wrote a dissent.
The U.S. Supreme Court on June 28, 2018, granted CTIA’s petition for a writ of certiorari, then remanded the case for further consideration in light of its decision two days earlier in National Institute of Family and Life Advocates v. Becerra. There, the high court struck down a California statute requiring licensed clinics that primarily serve pregnant women to provide a notice that the state offers free or low-cost services which include abortions.
“California’s notice requires covered clinics to disclose information about state-sponsored services—including abortion, hardly an ‘uncontroversial’ topic,” Justice Clarence Thomas wrote.
He contrasted the message the clinics were required to convey with what the court described in its 1985 decision in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio as “purely factual and uncontroversial information about the terms under which...services will be available.” Such advisements, the court in Zauderer said, may be required unless providing them would be “unjustified or unduly burdensome.”
Fletcher said in yesterday’s opinion:
“Under Zauderer, compelled disclosure of commercial speech complies with the First Amendment if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual and uncontroversial. The question before us is whether the speech compelled by the Berkeley ordinance satisfies this test.”
Finding that it does, he wrote:
“There is no question that protecting the health and safety of consumers is a substantial governmental interest.”
The jurist pointed out that in pursuit of such protection, the Federal Communications Commission already requires manufacturers of cell phones to warn consumers, in user manuals, of the dangers from radio frequency (“RF”) energy emitted by the products. He said:
“By passing its ordinance, the City of Berkeley furthers that same interest. After finding that cell phone users are largely unaware of the FCC policy and of the information in their user manuals, the Berkeley City Council decided to compel retailers in Berkeley to provide, in summary form, the same information that the FCC already requires cell phone manufacturers to provide to those same consumers, and to direct those consumers to consult their user manuals for more detailed information.”
“We are not in a position to disagree with the conclusions of FCC and Berkeley that this compelled disclosure is “reasonably related” to protection of the health and safety of consumers.”
Fletcher went on to declare the required language that is factual and uncontroversial, setting forth that “Berkeley’s required disclosure is uncontroversial within the meaning of” National Institute of Family and Life Advocates,” adding:
“It does not force cell phone retailers to take sides in a healed political controversy. The FCC’s required disclosure is no more and no less than a safety warning, and Berkeley’s required disclosure is a short-hand description of the warning the FCC already requires cell phone manufacturers to include in their user manuals.”
The decision by District Court Judge Edward M. Chen of the Northern District of California denying a preliminary injunction must be affirmed, he said, based on “[o]ur assessment of the probability of CTIA’s success on the merits, the likelihood of irreparable harm, the balance of the hardships, and the public interest.”
The warning required by the ordinance reads:
“To assure safely, 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 about how to use your phone safely.”
“The majority interprets the sentences in Berkeley’s forced disclosure statement one at a time and holds that each is ‘literally true.’ But consumers would not read those sentences in isolation the way the majority does. Taken as a whole, the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley has not attempted to argue, let alone to prove, that message is true.”
“There are downsides to false, misleading, or unsubstantiated product warnings. Psychological and other social science research suggests that overuse may cause people to pay less attention to warnings generally….”
The case is CTIA v. City of Berkeley, 16-15141.
Copyright 2019, Metropolitan News Company