ANA Opposes City of Berkeley Free Speech Overreach on Cell Phone Notices

The Association of National Advertisers (ANA) stated its opposition Monday to the City of Berkeley’s mandate to force 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. ANA filed its Amicus Curiae, or “friend of the court” brief, in support of the CTIA-The Wireless Association, arguing that the Berkeley ordinance is an improper and unconstitutional attempt to tilt public debate.

“Advertisers believe that the City of Berkeley’s ordinance is a gross overreach and puts a fundamental principle of the Constitution at risk,” said Dan Jaffe, Group Executive Vice President of Government Relations for ANA. “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. ANA supports the CTIA in its effort to uphold constitutional provisions regarding commercial free speech.”

The ANA brief argues in favor of the immediate imposition of a preliminary injunction by the United States Court of Appeals for the Ninth Circuit to stop the City of Berkeley from imposing a safety warning that erroneously suggests that the Federal Communications Commission (FCC) believes radio frequency emissions from cell phones are dangerous.

Numerous court rulings hold that it is “incompatible with the First Amendment” to burden speech based on fear that people will make bad decisions, or to promote “what the government perceives to be their own good.” ANA believes Berkeley’s mandate certainly exceeds that limitation.

Jaffe noted, “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 noted in the 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.’”

Jaffe continued, “If the Berkeley ordinance is not overturned this will create sweeping precedents. It could be utilized 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.”