SAN FRANCISCO (CN) - Berkeley on Thursday asked a federal judge to rescind his ban on a newly amended ordinance requiring retailers to warn customers about the potential health risks of cellphones.
CTIA - The Wireless Association, a cellphone industry trade group, sued Berkeley in June 2015, calling its new ordinance unconstitutional because it compels private retailers to spread a government-crafted message.
The contested disclosure stated in part: "If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF [radio frequency] radiation. This potential risk is greater for children."
U.S. District Judge Edward Chen found in September that the ordinance did not violate retailers' First Amendment rights, but he also found the sentence claiming cellphones pose a greater risk to children baseless and unscientific.
After amending the law to remove that sentence from the disclosure, Berkeley asked Chen to rescind his injunction and reinstate the ordinance.
CTIA attorney Joshua Lipshutz said the injunction should remain in place because the ordinance still unlawfully restricts his clients' constitutional rights.
"This law poses real harm to my clients being conscripted to say things and take a side of the debate they don't agree with," Lipshutz told the judge.
But Chen said the harm appears to be minimal because the law does not prevent retailers from disseminating their own information to counter the government's message.
Lipshutz disagreed with Chen's previous finding that aside from the sentence warning of a greater risk to children, the required statement is "factual and uncontroversial" because it's based on the Federal Trade Commission's guidelines for radio frequency exposure.
The CTIA attorney called Berkeley's use of the words "safety" and "radiation" in the disclosure inflammatory.
"'Radiation' is a word the FCC itself has found to be misleading because consumers associate the word with cancer," Lipshutz said.
Representing the city pro hac vice, Amanda Shanor of Yale Law School argued that accepting the wireless industry's argument would "constitutionalize all consumer regulations."
"The ordinance no more suggests that cellphones are unsafe than a nutrition label might disclose that salt is unsafe," Shanor said. "No one contests that RF energy is unsafe at some level and that [the FCC] requires mandated disclosure of the safe distance."
Chen asked Shanor how the court should proceed if the other side challenges the accuracy of a government-mandated disclosure, such as one that claims tucking a cellphone into one's pocket may increase the risk of cancer by a certain amount.
Shanor said the court would need to conduct a rational basis test.
"The burden would be on the plaintiff to prove the statement was irrational and that the conceiving of it would be irrational," Shanor said. Constitutionality would come into play only if the statement is unduly burdensome or chills protected speech.
Lipshutz said the city has stated that the reasoning behind its ordinance was the public's right to know, which multiple courts have rejected as "insufficient for the government to compel speech."
Chen asked: What if the disclosure informed the public about a particular federal law or regulation, such as FCC guidelines on radio-frequency exposure from cellphones?
The government has every right to inform the public about the law, Lipshutz said, but that does not mean it can force private entities to spread controversial, inflammatory statements that mislead the public.
In closing, Shanor reemphasized the points Chen laid out in his Sept. 21 ruling, saying an injunction blocking the ordinance would be unjustified because the wireless trade group is not likely to succeed on its First Amendment claims.
Chen ended the hearing after about 30 minutes of debate, saying he would take the arguments under submission but showing no signs that the CTIA attorney changed his mind about finding the injunction unjustified.
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