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On The Front Lines

Victory: Appeals Court Rules in Favor of Retailers’ Right to Free Speech, Strikes Down Ordinance Mandating Dubious Government Health Alert

SAN FRANCISCO, CA — A federal appeals court has ruled that the City of San Francisco may not enforce an ordinance requiring wireless telephone retailers to warn customers of disputed health risks from using cell phones, concluding that such compelled speech is inconsistent with the First Amendment.  The Ninth Circuit Court of Appeals’ decision in CTIA-Wireless Association v. The City and County of San Francisco is consistent with a friend of the court brief filed by The Rutherford Institute, which argued that retailers have a constitutional right not to be forced to speak for the government. The ruling held that governmentally-compelled speech must be “purely factual and uncontroversial,” and since there is continuing debate over the health risks posed by cell phones, the San Francisco ordinance violated the First Amendment.

The Institute’s amicus brief in CTIA-Wireless Association v. The City and County of San Francisco and the court’s decision are available here.

“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.”

In 2011, the San Francisco Board of Supervisors passed an ordinance 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.

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