Robust Supreme Court First Amendment Jurisprudence Could Prove Problematic for San Francisco Cellphone Law
SAN FRANCISCO -- The robust Supreme Court jurisprudence on First Amendment law doesn’t seem to favor San Francisco’s case defending its law requiring retailers to provide information about potentially harmful effects of cellphone use at the point of sale, a judge hearing the case said during oral argument Thursday. CTIA and the city and county of San Francisco each appealed aspects of a U.S. District Court’s ruling on the law (CD Oct 31 p7), which CTIA says violates the industry’s First Amendment rights. The argument Thursday was over whether a preliminary injunction against the city from enforcing its new law should be lifted. “Let’s assume this case is going to go the U.S. Supreme Court,” said Consuelo Callahan, judge for the U.S. Court of Appeals for the 9th Circuit. “Tell me how you're going to get upheld there,” she asked a lawyer from San Francisco’s City Attorney’s office.
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"I think the jurisprudence from the Supreme Court really doesn’t favor that you can force them to say these things,” Callahan said. She wrote the 9th Circuit opinion in 2009 rejecting California law that would have put restrictions and labeling requirements on the sale and rental of violent video games to minors. “I personally find a lot of those videos very offensive,” she said from the dais Thursday. “It was hard for me to write that opinion,” but it was ultimately upheld by the higher court, she said.
Another judge hearing the appeal warned Deputy City Attorney Vince Chhabria to be careful about engaging in “demagoguery,” after Chhabria discussed the prospect of people dying from terminal brain cancer as a result of cellphone use. Judge Edward Korman, sitting on the 9th Circuit by designation from U.S. District Court in the Eastern District of New York, asked why, if the city was so concerned about preventing such a death, it hadn’t banned the sale of phones. “Somebody could die? Are you going to wait until somebody dies? The reality is most people are going to continue using cellphones just as they continue to drink coffee in Starbucks,” despite California-mandated warnings about the risks associated with certain chemicals found in coffee, he said. “If San Francisco is really concerned that it’s not doing enough … I think you should be careful about this demagoguery you've engaged in here."
The judges also had tough questions for CTIA’s counsel, Andrew McBride of Wiley Rein. Korman appeared skeptical of McBride’s arguments that a factsheet approved by the lower court expressed the city’s opinion rather than uncontroversial facts, as the industry had argued. “I assume you don’t dispute that cellphones emit radiofrequency energy,” he said. “And it says if you want to reduce your exposure while these studies are taking place, go ahead,” he said. “What exactly is unfactual or controversial about that?"
McBride responded that the factsheet is misleading, and that CTIA didn’t have the opportunity to litigate its contents in the lower court. “What they don’t say is the weight of the studies have shown there’s no harm from cellphones,” McBride said. “It’s misleading … in the same way that selective giving of facts can always be misleading.” CTIA “never got a crack at that document,” McBride said. U.S. District Court Judge William Alsup wrote it and ordered the parties not to reargue the issues or submit further briefs, McBride said. “The district court … insulated this fact sheet from further review,” he said. “I want the opportunity to take this factsheet, put it in a survey with consumers and see what effect it has,” he said. “Let’s not let this thing out the door until I get to litigate it."
Another judge wanted to know why CTIA doesn’t believe it has that opportunity now. “We have about 50 amicus briefs here, do any of them have information you want to rely on?” Judge Mary Schroeder asked. “Do you want an evidentiary hearing?”