Free Speech -- 2019



CTIA v. The City of Berkeley, California   (U.S. Supreme Court)

Standard of judicial review for compelled commercial speech

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.


Related Documents:
NAM Brief  (November 5, 2019)