On Monday, a federal judge in California rejected industry’s latest attempt to use the First Amendment to avoid making consumer disclosures.
The Berkeley Ordinance
The federal government’s testing requirements for cell phone radiation, developed in 1996, assume that the cell phones will be kept about half an inch from the body. (Remember those holsters and belt clips?) The FCC recommends keeping the cell phone at a distance from your body, and the cellphone manufacturers’ own manuals repeat this advice. (You did read your cellphone manual, right?)
But nowadays, many people keep their cell phones in their pockets or bras, and aren’t even aware that the safety testing assumes a half-inch distance, let alone that both the government and the manufacturers recommend this distance. So the City of Berkeley passed an ordinance requiring cell phone retailers to display or give customers a notice, bearing the city’s logo, and reading:
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.
Perhaps predictably, industry sued.
Cell phone Companies and Jehovah’s Witnesses
There is, of course, a principle that the government cannot force people to speak against their will. That “right not to speak” goes back to a 1943 case involving Jehovah’s Witnesses who objected to forced salute of the flag, and was reaffirmed in a 1977 case involving Jehovah’s Witnesses who objected to the mandatory “Live Free Or Die” motto on New Hampshire license plates.
But commercial disclosures for consumers aren’t statements of political or religious orthodoxy, and big businesses aren’t Jehovah’s Witnesses. Instead, these consumer disclosures are intended to be given what lawyers call “Zauderer review”—a very light review to ensure that the disclosure requirement is “reasonably related” to a legitimate government interest.
Some judges have trouble with that principle—they believe that if a corporation objects to a required consumer disclosure, the judge should decide whether the disclosure rule is a good policy or not. That seems to be what happened in August, when two judges of the D.C. Circuit struck down a disclosure rule that required publicly traded corporations to report whether their products contain “conflict minerals.” As those judges explained, the disclosure was too “controversial.” That decision is just the latest salvo in a broader corporate assault on public disclosure laws under the First Amendment.
The Judge’s Decision
This judge, however, got it right. He rejected industry’s argument that the Berkeley ordinance should be subjected to “strict scrutiny,” and instead ruled that the Berkeley ordinance should be reviewed under the Zauderer test. In fact, he noted, the ordinance wasn’t even really compelling speech by the cell phone retailers. Because of the required city logo and preface that the information was required by the city, the disclosure fell into a different legal category, called “government speech,” as if the city itself had handed out the flyers.
Ultimately, the judge resoundingly rejected virtually all of the cell phone industry’s arguments, including the entire First Amendment claim. (He did allow that the specific sentence about potential greater risk for children was probably preempted by a Congressional statute.)
The cell phone industry might appeal. The corporate First Amendment bar is still heady after its conflict minerals victory, and corporations will keep bringing these types of cases until we pass a constitutional amendment making it clear that corporations do not have constitutional rights as if they were people. In the meantime, the fight continues.