WASHINGTON, D.C. — Insisting that retailers have a First Amendment right not to be forced to speak for the government, attorneys for The Rutherford Institute have filed an amicus brief with the United States Supreme Court urging the Court to strike down an ordinance requiring cell phone retailers to tell consumers that cell phones are dangerous.
In the brief filed in CTIA-Wireless Association v. The City of Berkeley, Institute attorneys ask the Court to declare unconstitutional an ordinance adopted by the City of Berkeley requiring cell phone retailers to advise purchasers about the disputed health effects of cell phone usage. Institute attorneys argue that the ordinance is unconstitutional because it forces citizens to become unwilling mouthpieces for the controversial viewpoints of their elected officials. Attorney Michael Lockerby of Foley & Lardner LLP, in Washington, D.C., assisted The Rutherford Institute with the First Amendment brief.
“The very purpose of the First Amendment, as Justice Hugo L. Black recognized, is to ensure that Americans are free to think, speak, write and worship as they please, not as the government dictates,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Well-meaning or not, the government’s desire to communicate a disputed health alert about cell phone usage cannot be permitted to trump the First Amendment rights of citizens—including retailers—to decide for themselves whether or not to advance such a message.”
In 2015, the City of Berkeley, Calif., passed an ordinance requiring cell phone retailers within the city to provide all persons purchasing or leasing a cell phone a statement relating to the effects of cell phone use. Retailers are required to tell customers that, “to assure safety,” federal guidelines require phones to limit radio-frequency exposure, and that if users carry a cell phone on their person while the phone is on they may exceed those guidelines. However, city council members admitted they had no scientific evidence that cell phones pose a health risk and the Federal Communications Commission has determined there is no scientific evidence linking wireless device use and cancer or other illnesses. In addition, the World Health Organization issued a report in June 2011 which concluded that after a large number of studies, no adverse health effects had been established as being caused by mobile phone use.
Hoping to prevent enforcement of the ordinance, the wireless industry filed a lawsuit arguing that the mandated statement was false and misleading and that it compelled retailers to speak in violation of their First Amendment rights. The trial and appellate courts rejected the constitutional claims, ruling that the mandated disclosures have a reasonable relationship to public safety. The wireless industry petitioned the Supreme Court to review that ruling. In its amicus brief supporting the wireless industry’s petition, The Rutherford Institute argues that the lower courts’ rulings will grant the government the power to compel citizens to make statements with which they disagree, even though the statements may be misleading and controversial.