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CEO DATELINE – Abortion ruling results in reevaluation of CTIA compelled speech case

July 6, 2018
By Walt Williams

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The U.S. Supreme Court has ordered a lower court to reconsider a lawsuit brought by CTIA—The Wireless Association against Berkeley, Calif., in light of a ruling in a separate case involving whether state governments can force pregnancy centers to post information about abortion services.

CTIA sued Berkeley in 2015 for a city ordinance requiring retailers to post notices telling customers that cell phones may pose a radiation risk. Some consumer advocates have linked cell phone radiation to cancer, but all federal agencies that have looked into the science have concluded that little evidence exists to support a link. Still, in 2011, the World Health Organization’s International Agency for Research on Cancer classified cell phone radiation as “possibly carcinogenic to humans,” a designation that is controversial in the scientific community.

In its lawsuit, CTIA argued the city was compelling retailers to engage in “scientifically baseless and alarmist speech” by posting the notices. However, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld the ordinance in 2017, arguing the notices were scientifically accurate and in the public interest. The association appealed the decision to the Supreme Court, the San Francisco Chronicle reported.

On June 28, the Supreme Court ordered the appeals court to reconsider the CTIA case in light of another ruling issued two days earlier in a case raising similar questions about compelled speech. Justices ruled 5-4 in favor of anti-abortion pregnancy centers that had sued to overturn a California law requiring them to post information about abortion services offered in the state.

Writing for the majority, Justice Clarence Thomas said the abortion notification law “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech,” NPR reported.

CTIA did not issue any statements in response to the Supreme Court’s order to reconsider its case, but other associations hailed the decision as a victory for free speech.

“Our brief argues that the appellate court decision to uphold the ordinance compels cell phone sellers to provide a disclosure unrelated to any interest in combatting deception, and dilutes First Amendment protection from compelled commercial speech to allow governments to make misleading and redundant ‘disclosures’ about cell phone safety,” the Association of National Advertisers said in a statement.

In a separate statement, the National Association of Manufacturers said the Supreme Court’s decision “helps manufacturers by upholding their First Amendment right to choose how to speak about their own products.”

“The NAM’s Manufacturers’ Center for Legal Action filed an amicus brief in support of review because governments should not be able to dictate how manufacturers advertise, promote or describe their products unless there is a compelling public need for such disclosures,” the association said.

“If such compelled disclosures are subject to merely rational basis review, then the federal, state and local governments would be empowered to force manufacturers to speak out against their own products—especially those that the government disfavors,” it added.