Free Speech -- 2018

CTIA - The Wireless Association v. City of Berkeley   (U.S. Supreme Court)

Government-compelled speech about speculative hazards from cell phones

The city of Berkeley, California, sought to require cellular phone retailers to post in-store signs that warn of the risks of cellular phone radiation. A trade association representing the cellular industry challenged the requirement, arguing that it unconstitutionally compels speech in violation of the First Amendment. The Ninth Circuit Court of Appeals concluded that all compelled commercial speech is subject to only "rational basis review" (minor judicial scrutiny). The wireless association then asked the U.S. Supreme Court to grant discretionary review to hear the case and reverse the Ninth Circuit's ruling. The NAM's amicus brief in support of review identifies the significance of this issue for manufacturers and argues that courts should strictly scrutinize such government requirements unless the compelled speech is necessary to combat misleading commercial speech and the disclosure consists only of purely factual and uncontroversial information.

This case presents an unsettled but vital First Amendment issue that implicates serious issues of government power to compel manufacturers and other businesses to speak: Under what circumstances can the government impose "disclosure" regimes that force sellers to speak either to disparage their own products or participate in a public policy debate, and what criteria must the government satisfy before compelling speech?

In a victory for manufacturers, on June 28, 2018, the Court granted certiorari and vacated and remanded the case for reconsideration.

Related Documents:
NAM brief  (February 9, 2018)


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