Lockerby Authors Amicus Brief Urging Supreme Court to Strike Down Ordinance Requiring Retailers to Warn Customers that Cell Phones May Be Dangerous

Partner Michael Lockerby has authored an amicus brief asking the U.S. Supreme Court to declare unconstitutional a Berkeley, California ordinance requiring cell phone retailers to warn prospective customers about the possible dangers of cell phone usage.

The brief, filed February 8 on behalf of The Rutherford Institute, a Virginia-based civil liberties organization, argues that the mere act of being a cell phone retailer is not commercial speech within the meaning of the court’s precedents. And even if it were, it says, forcing retailers to deliver the city’s message furthers no “substantial” government interest.

The court, in the 1985 case of Zauderer v. Office of Disciplinary Counsel, had held that the government may compel the disclosure of ‘‘purely factual and uncontroversial information” when mandated in an effort to combat misleading commercial speech, as long as the disclosure is not “unduly burdensome” and is “reasonably related to the state’s interest in preventing deception of consumers.”

But the brief contends that the Zauderer exception applies only to uncontroversial facts required to correct deceptive commercial speech.

“Merely by selling cell phones, retailers in Berkeley are not engaged in commercial speech – much less misleading commercial speech that, under Zauderer, retailers might be required to ‘correct,’” Lockerby wrote.

At issue is an ordinance enacted by the Berkeley city council in May 2015 that mandates a warning notice to people buying or leasing cellphones, that carrying the devices close to the body when switched on could expose them to radio-frequency radiation in excess of federal guidelines.

CTIA-The Wireless Association, a trade association representing the wireless communications industry, challenged the ordinance in federal court, saying the warning is “ill-informed and misleading,” and that forcing retailers to provide it violates their First Amendment rights. But a judge denied the association’s request for a preliminary injunction staying enforcement of the ordinance, and the Ninth Circuit affirmed the judge’s order, saying the information in the required disclosure was reasonably related to a substantial government interest and was purely factual.

In January, CTIA petitioned the Supreme Court to hear the case.

This isn’t the first time the CTIA has contested the constitutionality of a cellphone disclosure ordinance. The association successfully fought the 2011 adoption of a similar ordinance by the City and County of San Francisco, which the Ninth Circuit, in a 2012 ruling, held violated the First Amendment because there is a continuing debate over the health risks posed by cell phones. The Rutherford Institute had also filed an amicus brief in that case, which Lockerby also wrote.