Law Center Search Results

The NAM filed an amicus brief in support of a petition for certiorari to overturn a city ordinance that compels commercial speech in violation of the First Amendment to the U.S. Constitution. The City of Berkeley, California, required mobile phone retailers to post in-store warnings about alleged risks of cellular phone radiation. The wireless industry’s trade association sued to challenge the ordinance, arguing it violated the store owners’ free speech rights. The U.S. Court of Appeals for the Ninth Circuit upheld the standard, reasoning that commercial speech is subject to the least rigorous level of judicial review. The U.S. Supreme Court granted review and summarily reversed, ordering the 9th Circuit to reconsider its decision in light of intervening Supreme Court caselaw governing compelled speech. The 9th Circuit again upheld the ordinance by applying a relaxed standard of review that requires only that the compelled speech is reasonably related to any “more than trivial” governmental interest. In support of the association’s second petition for certiorari to the U.S. Supreme Court, the NAM filed an amicus brief seeking review and reversal of the 9th Circuit’s overly permissive review standard for compelled commercial speech. Our brief explained how the 9th Circuit’s lax standard will inflict significant harm on businesses and why the ordinance is unconstitutional. On December 9, 2019, the court denied certiorari.

The NAM filed an amicus brief in a U.S. Supreme Court case that involved a Berkeley, California, city ordinance that required mobile phone retailers to post warnings about alleged risks of cellular phone radiation. An association sued to challenge the ordinance, arguing it violated the store owners’ free speech rights; however, the U.S. Court of Appeals for the Ninth Circuit ruled against the owners, concluding that government-compelled commercial speech is subject to the least rigorous level of judicial review. If left to stand, that precedent could harm manufacturers by allowing the government to dictate how manufacturers speak about their own products. The NAM’s brief argued that compelled speech should be subject to strict judicial scrutiny. The Supreme Court summarily reversed the Ninth Circuit and ordered it to reconsider its decision. On remand, the Ninth Circuit declined to stop enforcement of the ordinance.

The NAM filed an amicus brief in support of this challenge to a San Francisco ordinance that requires retailers of cell phones to put up posters in their stores, attach stickers to cell phone displays, and distribute “factsheets”, all designed to advise consumers about the supposed risks and steps consumers can take to avoid them. We argued that the government bears a very high burden to overcome the First Amendment right not to have to engage in speech that is compelled by the government. Strict scrutiny by the courts is the appropriate standard of review, and no merchants should have to convey a controversial message with which they disagree and which is not factual. The government may not order a private citizen to convey the government’s message, unless the message is purely factual, uncontroversial and directed at preventing consumer deception. Government-compelled speech must be justified by a compelling government interest and narrowly drawn to serve that interest, according to our brief, citing numerous Supreme Court precedents. The city has less restrictive alternatives to get its message out, such as putting up its own posters in public places.

On 9/10/12, the court said that it could not find that the fact sheet was both "purely factual and uncontroversial," since there is debate about the health effects of cell phones and there is no evidence of cancer caused by cell phones. The Supreme Court has already ruled that the government may not compel disclosures to consumers unless they are purely factual and uncontroversial, and this mandate did not meet that test.

This is another case involving attempts by various governments to restrict, or mandate, certain types of commercial speech. It has appeared in various incarnations, such as mandatory “Live Free or Die” language on license plates.