Rebecca Tushnet

CTIA – The Wireless Association v. City of Berkeley, No.
C-15-2529 (N.D. Cal. Sept. 21, 2015)

 

CTIA is a nonprofit that represents the wireless industry,
including cell phone retailers.  Berkeley
enacted an ordinance that requires cell phone retailers to provide a certain notice
regarding radiofrequency (RF) energy emitted by cell phones to any customer who
buys or leases a cell phone: 

 

The City of Berkeley requires that
you be provided the following notice: 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.
This potential risk is greater for children. 
Refer to the instructions in your phone or user manual for information
about how to use your phone safely.

 

The notice had to be sufficiently large (either displayed at
the point of sale or provided to each consumer) and had to include the City’s
logo.

 

The City’s reasoning was that the FCC established radiation
absorption rates for cell phones, assuming they’d be carried “a small distance
away from the body, e.g., in a holster or belt clip, which was the common
practice at that time.”  Manufacturers
recommend that phones be carried away from the body, but consumers aren’t
generally aware of this.  A survey taken
of 459 registered Berkeley voters before enactment weren’t “aware that the
government’s radiation tests to assure the safety of cell phones assume that a
cell phone would not be carried against your body, but would instead be held at
least 1- to 15 millimeters from your body.” Today, it’s much more common to
have much smaller separations, and consumers might change their behavior “to
better protect themselves and their children” if they were aware of safety recommendations
and manufacturer small-print disclosures (whose general content is mandated by
the FDA) that generally advise consumers not to wear them against their bodies.  However, the FCC and other national and
international organizations have concluded that “the weight of scientific evidence
has not effectively linked exposure to radio frequency energy from mobile
devices with any known health problems,” though more and longer-term studies
are warranted.  Although the FCC doesn’t
endorse the need for more cautious practices, it does provide information on
simple steps consumers can take to reduce their exposure to RF energy.  The FCC’s calculations suggest that some
devices might not be compliant with its exposure limits (set well below the
point at which there’s any evidence of actual health risk) without the use of a
spacer to maintain separation between phone and body, but there was “no
evidence that this poses any significant health risk.” 

 

The court mostly rejected CTIA’s conflict preemption
argument; the City was mainly just referring consumers to the fact that there are FCC standards on RF energy exposure
and tells them to consult their manuals, consistent with the FCC’s own
requirement that cell phone manufacturers disclose to consumers information and
advice about spacing. However, the sentence “This potential risk is greater for
children” was preempted because it said there was a risk, but that was a matter of scientific debate on which the
FCC had never made any pronouncement, and the FCC had never imposed different
RF energy exposure limits for children.

 

The City argued that children were at greater risk because
they are heavy phone users, they often sleep with their phones on or next to
their beds, they often keep phones, close to their bodies, etc.  But that didn’t matter given the FCC’s
position—at most there is a scientific debate regarding the risk to
children. 

 

The court turned to the First Amendment challenge to the
remaining disclosure.  CTIA cited Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015), arguing that strict scrutiny applied
because the regulation wasn’t content neutral. 
But commercial speech doctrine is inherently non-content neutral; the
only speech at issue here was commercial, and Reed didn’t even come close to suggesting that the doctrine has
been eliminated.

 

CTIA then tried Central
Hudson.  But that’s for restrictions on commercial speech, not
for compelled disclosures, which is covered by Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985),
Milavetz, Gallp & Milavetz, P.A. v. United States, 559 U.S. 229 (2010).  Zauderer
and Milavetz essentially create a rational
basis test for compelled commercial disclosures involving accurate, factual
information.  Such disclosures

“further, rather than hinder[], the First Amendment goal of
the discovery of truth and contribute[] to the efficiency of the ‘marketplace
of ideas.’”  Nat’l Elec. Mfrs. Ass’n v.
Sorrell, 272 F.3d 104 (2d Cir. 2001).

 

CTIA argued that Zauderer
only applies where the government’s interest is in preventing consumer
deception, not promoting public health or safety. The cases don’t support that
claim.  See, e.g., American Meat
Institute v. United States Department of Agriculture., 760 F.3d 18 (D.C. Cir.
2014) (en banc).  Zauderer’s justification—the audience’s interest in receiving
truthful commercial information—sweeps far more broadly than the interest in
remedying deception.   “Indeed, it would make little sense to
conclude that the government has greater power to regulate commercial speech in
order to prevent deception than to protect public health and safety, a core
function of the historic police powers of the states.” 

 

Even worse for CTIA, the court suggested that, where the
compelled disclosure was clearly identified as government speech and not that
of CTIA’s members, a sub-Zauderer
standard might apply, allowing the governement’s speech to be more than “purely
factual and uncontroversial.”  “Where a
law requires a commercial entity engaged in commercial speech merely to permit
a disclosure by the government, rather than compelling speech out of the mouth
of the speaker, the First Amendment interests are less obvious.”  Given the attribution to the government,
limiting the disclosure to factual and uncontroversial matter wasn’t necessary
to minimize the burden on retailers.

 

CTIA conceded that there’d be no First Amendment violation
if the City handed out flyers or had a poster board immediately outside a cell
phone retailer’s store.  This requirement
was not meaningfully different as applied to CTIA’s members’ expression.  The ordinance even expressly allowed
retailers to add comments to the notice if they wanted to.  There was no risk of chilling their speech.

 

Still, because retailers might feel a need to respond to
Berkeley’s notice, the court applied a more exacting form of rational basis
review.  This “requires an examination of
actual state interests and whether the challenged law actually furthers that
interest rather than the traditional rational basis review which permits a law
to be upheld if rationally related to any conceivable interest.”

 

Under the rational basis test, promoting consumer awareness
of the government’s testing procedures and guidelines was obviously a legitimate
governmental interest, and the mandated notice (minus the children warning)
furthered and was reasonably related to that interest, tracking the FCC’s
requirements.  CTIA argued that consumer
understanding was a subterfuge—the real asserted interest was public safety,
but there was no actual associated risk. 
Public health and safety was also a legitimate public interest; the
court concluded that the disclosure was reasonably related to that interest
because, though there was scientific uncertainty and debate, “there is a
reasonable scientific basis to believe that RF radiation at some levels can and
do present health risks.”  The City could
therefore rationally choose to require disclosure of the FCC’s limits and the
fact that the limits assume a minimal amount of spacing between the phone and
the body.  CTIA didn’t contend that the
FCC guidelines themselves were scientifically baseless and hence irrational.

 

Even under a more rigorous application of Zauderer, the ordinance survived.  The predicate requirement is that the
disclosure must be “factual and uncontroversial,” but how to measure that is
unclear:

 

The mere fact of scientific
uncertainty and/or inexactitude does not render the government’s interest in
issuing safety warnings to the public irrational or unreasonable.  Such uncertainty and inexactitude inheres in
the assessment of any risk.  To require
the government to prove a particular quantum of danger before issuing safety
warnings would jeopardize an immeasurable number of laws, regulations, and
directives.

 

(As a side note, the court suggested that it wasn’t clear
who bore the burden of proof under Zauderer.  While the government bears the burden with
respect to speech restrictions, this wasn’t a speech restriction.)

 

Courts shouldn’t lightly deem compelled speech “controversial”
under Zauderer.  Facts themselves “can disconcert, displease,
provoke an emotional response, spark controversy, and even overwhelm reason.”  Milavetz
didn’t even explicitly require that the compelled disclosure be
uncontroversial, asking only that it be factual and accurate.  Uncontroversial, then, should generally mean “accurate.”

 

What about being factual/accurate?  One could argue that the mere fact of
government mandate expresses the government’s opinion that there is something
to be worried about, or that the disclosure should include even more information to give the full
picture.  “But Zauderer cannot be read to establish a ‘factual and uncontroversial’
requirement that can be so easily manipulated that it would effectively bar any
compelled disclosure by the government,” especially when public health and
safety are at issue.  The government isn’t
required to mandate disclosure of everything on each side of a scientific
debate (an impossibility anyway). 
Without the sentence about children, the ordinance easily qualified as
factual, accurate, and uncontroversial.

 

CTIA didn’t like the words “safety” and “radiation,” but the
FCC used those words. “The limits that the agency ultimately chose reflected a
balancing of the risk to public health and safety against the need for a
practical nationwide cell phone system, but it cannot be denied that safety was
a part of that calculus.”  Failure to
explain that RF energy is non-ionizing radiation rather than ionizing radiation
was “immaterial as that distinction would likely have little meaning to the
public…. No one seriously contends that consumers are likely to believe cell
phones emit nuclear radiation or something akin to that.”  CTIA argued that, even if a cell phone is
worn against the body, it was unlikely that federal guidelines would be
exceeded.  But the compelled disclosure
wasn’t required to describe with precision the magnitude of the risk, especially
when coupled with the statement Refer to the instructions in your phone or user
manual for information about how to use your phone safely.”

 

A compelled disclosure also can’t impose an undue burden—and
that has to be a burden on speech, not any kind of burden.  CTIA’s members would rather remain silent,
but allegedly are now being forced to engage in counter-speech. That’s not a
cognizable harm; it’s the opposite of speech being chilled (as it would be if
the disclosure was so onerous that speakers would forego their speech rather
than being forced to make the disclosure). 
Regardless, the burden was minimal at most—retailers had the discretion
to add their own speech to the City’s message. And that message was factual and
uncontroversial, so the need for corrective counterspeech was minimal.