On CTIA v. City of Berkeley
We filed our opposition to CTIA’s petition asking the Supreme Court to review the 9th Circuit’s conclusion that there is absolutely nothing wrong with Berkeley’s health and safety warning about cell phones. Here’s a clue to why no court in this FOUR YEAR litigation has yet to agree with CTIA — it’s effectively the same warning that the FCC requires manufacturers to include in every cell phone manual, just applied to retailers, not manufacturers, and no one, ever, has challenged that “compelled speech” by the FCC, including CTIA. You can read the opposition here.
But here’s a pro-tip for anyone trying to understand what this case is about. The issue before the Court has nothing — let me repeat, NOTHING — to do with whether cell phones cause cancer or any other harm to individuals. The issue — and really, the only issue — is whether a local jurisdiction must survive intermediate First Amendment scrutiny before it may require a health and safety warning.
That sounds a bit law-geek-like, but it is critically important. This is a classic example of what Elena Kagan was describing when she charged conservatives with “weaponizing” the First Amendment. Because the single and most obvious consequence of such a NEW rule would be exactly what conservatives want here — the end of the practical ability for local jurisdictions to regulate through mandatory warnings. This is, as we’ve said from the start of this case, the ghost of Lochner in the guise of the First Amendment.
You may not like safety warnings. I share a skeptical view about the utility of many of them. But never in the Supreme Court’s history has it applied intermediate First Amendment review to a mandatory health and safety warning. That’s why, in the last case where conservatives were trying to weaponize the First Amendment in this way, Justice Thomas wrote that the Court did “not question the legality of health and safety warnings long considered permissible.” National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 2376 (2018). Yet here is the CTIA asking the Court to create a new First Amendment barrier to something “long considered permissible.”
So if you’re thinking or writing about this case, please — at the very least —don’t become a tool of the CTIA publicity department. I’m happy to defend the substance of the Berkeley ordinance — which simply directs people to the manual if they want to avoid exceeding FCC RF exposure limits. But this cert petition raises an issue much much bigger than Berkeley’s ordinance. Focus on that forest, not on this tree.
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