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.