The Fight Continues over Berkeley’s Cell Phone Notice Law

March 25, 2016

Several weeks ago, ANA filed a “friend of the court” brief in support of a lawsuit challenging  the City of Berkeley’s ordinance forcing wireless producers and sellers to provide a point of sale public notice regarding radio frequency safety. Berkeley’s required notice contradicts federal findings that cell phones are safe and raises serious First Amendment concerns.

On Wednesday, a three-judge panel of the U.S. Court of Appeals in San Francisco refused to block enforcement of the new ordinance while the lawsuit is pending. While this was not a decision on the merits of the case, we are disappointed that the court decision will allow the city to begin imposing these misguided mandated warnings. These warnings are neither neutral nor uncontroversial. They will tend to frighten consumers needlessly even though the FCC has made clear there is no scientific evidence to suggest cell phone use is unsafe.

We believe that the City of Berkeley’s ordinance is a gross overreach and puts a fundamental principle of the Constitution at risk. Any ruling where a court effectively allows local officials to compel speech whenever they feel like sending a government message remotely related to products or services sets an inherently dangerous precedent.  

The Supreme Court has established a clear trajectory toward enabling greater protection for commercial speech, not less. The City of Berkeley must not be allowed to force commercial speakers to carry the government’s message, especially one contrary to scientific evidence and the FCC’s express findings.

As we noted in our brief, “‘Nothing is stopping the city from buying air time or online banner ads for public service announcements to carry its ‘notice’ about cell phones, or from plastering city buses or rail cars with posters conveying the notice’s message, or even from buying outdoor signage rights within sight of cell phone stores to proclaim its warnings… the city merely wants to add its commentary on a safe and lawful product – one that already comes with all the information that the city says consumers need.’”

We are very hopeful that the Berkeley ordinance will ultimately be struck down by the courts. If not, the precedent could be used by the more than 30,000 cities, towns and counties in the U.S. to commandeer the communications of private companies and force them to transmit government imposed warning notices even where the advertising claims are clearly not false or deceptive and there is little or no scientific support for the government’s concerns.

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