What’s the Frequency, Berkeley?

Did you know that cell phone radio frequency (RF) exposure causes cancer? It doesn’t. The Federal Communications Commission has concluded there’s “no scientific evidence” linking “wireless device uses and cancer or other illnesses.” Despite the FCC’s scientific findings, however, the city of Berkeley, California, requires every cell phone realtor provide a notice informing customers that, if they carry cell phones in a “pants or shirt pocket or tucked into a bra” when the phone is on and connected, they “may exceed the federal guidelines for exposure to RF radiation.”

That statement is technically true; “may” just means something is possible, not necessarily likely. Phones may exceed federal guidelines; likewise, phones may spontaneously combust. What Berkeley says is technically correct, just misleading (the unexplained acronym also sounds scary). CTIA, the wireless industry’s trade group, sued Berkeley for compelling speech in violation of the First Amendment.

The right to speak necessarily entails the right to remain silent. This principle ensures the freedom of conscience and prevents citizens from being conscripted to serve as unwilling bullhorns for government communications. Likewise, it is a foundational principle of the First Amendment that content‐​based restrictions of speech must survive the strictest scrutiny — meaning the government needs a really good reason and can’t achieve its goal any other way.

But the Supreme Court has ruled that regulations of “commercial speech” need not meet the same rigorous standards of review as other types of speech. The Court created this narrow exception in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985). The Zauderer test applies lesser standards for mandatory disclosures, when the speech is “purely factual and uncontroversial information” and when the disclosure is not “unduly burdensome” and “reasonably related to the State’s interest in preventing deception of consumers.”

The Supreme Court previously remanded CTIA v. Berkeley in light of NIFLA v. Becerra (2018), where the Court clarified that the ambit of speech covered by Zauderer’s exception is narrow, and that governments did not have free reign provide scripts for commercial businesses. On remand, however, the U.S. Court of Appeals for the Ninth Circuit eroded Zauderer. The Ninth Circuit found that compelling speech content posed no constitutional issues because mandated disclosures need only be reasonably related to “non‐​trivial” government interests. This decision is another in a line of confused applications of Zauderer by the lower courts.

CTIA, represented by former Solicitor General Ted Olson, is again petitioning the Supreme Court to review that flawed decision. As we have at previous stages of litigation, Cato has filed an amicus brief supporting that petition. We argue that this important area of law desperately needs clarification, particularly at a time when compelled‐​disclosure regimes have proliferated and some courts have distorted the already insufficient Zauderer standard beyond recognition. To that end, the Court should apply strict scrutiny to review laws that force market participants to disparage their own products and participate in policy debates they wish to avoid.

The Supreme Court will decide whether to take up CTIA v. Berkeley later this fall.