On The Front Lines
The Rutherford Institute Asks Federal Court to Defend the First Amendment Right of Retailers Not To Be Forced to Speak for Government
SAN FRANCISCO, CA — Insisting that retailers have a First Amendment right not to be forced to speak for the government, attorneys for The Rutherford Institute have filed an amicus brief with the Ninth Circuit Court of Appeals in CTIA-Wireless Association v. The City and County of San Francisco. The brief asks that an ordinance adopted by the San Francisco Board of Supervisors requiring cell phone retailers to advise purchasers about the disputed health effects of cell phone usage be declared unconstitutional. Institute attorneys argue that the ordinance violates the First Amendment rights of residents as it pertains to their right to speak and their right to refrain from speaking at all.
“The very purpose of the First Amendment, as Justice Hugo L. Black recognized, is to ensure that Americans are free to think, speak, write and worship as they please, not as the government dictates,” said John W. Whitehead, president of The Rutherford Institute. “Well-meaning or not, the government’s desire to communicate a disputed health alert about cell phone usage cannot be permitted to trump the First Amendment rights of San Franciscans to decide for themselves whether or not to advance such a message.”
The conflict arose after the San Francisco Board of Supervisors passed an ordinance in 2011 requiring retail establishments selling or leasing cell phones to advise prospective purchasers about the disputed health effects of cell phone usage. Specifically, the ordinance required retailers to prominently display an informational poster advising customers about the “potential health effects of mobile phone use” and that the energy emitted by mobile phones is “a possible carcinogen.” Retailers were also required to provide every customer with an information “fact sheet” and paste an informational sticker on display literature, all of which contained language scripted by a government agency. The wireless industry has vehemently contested the facts contained in the health advisory.
In addition, the World Health Organization issued a report in June 2011 which concluded that after a large number of studies, no adverse health effects had been established as being caused by mobile phone use. Hoping to prevent enforcement of the ordinance, the wireless industry subsequently filed a lawsuit in California federal district court. However, the court ruled that the mandated disclosures (with minor adjustments) were legal and could be enforced against cell phone retailers. On appeal, The Rutherford Institute lent its support to the arguments advanced by the wireless industry with a friend of the court brief asserting that mandating speech is unconstitutional. Moreover, Institute attorneys argue, the compelled speech is neither necessary to protect public health nor needed to prevent misleading or confusing consumers. Indeed, “the City has plenty of alternative ways of spreading [its] views that do not require shredding the Constitution.”
Attorney Michael Lockerby of Foley & Lardner LLP assisted The Rutherford Institute with the First Amendment brief.
