Hearing on Berkeley cellphone law leans in city's favor

Lawrence Lessig (left) chats with Theodore Olson (right) before the two lawyers battled with each other in Federal District Court. Photo: Lance Knobel — Lawrence Lessig (left) chats with Theodore Olson (right) before the two lawyers battled with each other in Federal District Court in San Francisco on Thursday August 20, 2015. Photo: Lance Knobel

In a fascinating 90 minutes of arguments in the U.S. District Court Thursday, two of the country’s most eminent lawyers tussled over whether Berkeley’s cellphone Right to Know ordinance violated phone retailers’ First Amendment rights. The CTIA – The Wireless Association is seeking a preliminary injunction to stop the Berkeley law.

District judge Edward Chen meticulously prodded and poked at the arguments of Theodore Olson, representing the CTIA, and Lawrence Lessig, representing Berkeley. Olson claimed that the city was requiring retailers to disseminate a “controversial, non-factual, misleading statement.” Lessig countered that the city’s required statement is “factual and uncontroversial,” and that the legal standard the plaintiff had to prove was that the city had “chilled commercial speech.”

Chen said he would rule on the injunction at a later date, but his questioning suggested that he might reject the plaintiff’s case if Berkeley slightly modified the language of the required notice, removing a sentence stating the “potential risk [of radio frequency radiation] is greater for children.” Lessig said the city would be happy to modify the notice.

Olson is a former U.S. Solicitor General and has won a number of landmark Supreme Court decisions, including Bush v. Gore, Citizens United v. FEC, and Hollingsworth v. Perry (with its own Berkeley connection). Lessig, a professor at Harvard Law School, is a leading scholar on internet law and is considering a quixotic, single-issue run for the Democratic presidential nomination. Lessig is representing the city pro bono.

The Right to Know ordinance requires retailers to provide consumers on every sale or lease of a phone with a notice on radio frequency (RF) radiation exposure guidelines, warning that carrying the phone in a pants or shirt pocket or tucked into a bra could result in exceeding federal guidelines.

San Francisco passed its own Right to Know ordinance in 2010, but the Board of Supervisors withdrew the law in the middle of a lengthy legal battle, after the Federal Court of Appeals blocked implementation on First Amendment grounds. According to Lessig, the Berkeley law was drafted to avoid the problems of the San Francisco law, focusing purely on providing information to consumers, rather than persuading them to use their cellphones less.

In arguments before the judge, Olson said that the Berkeley ordinance was compelling retailers to make “burdensome” speech.

“The statement contains all kinds of code words that are intended to worry the consumer,” Olson said. He cited “safety,” “radiation,” and “risk” as words that convey “the message that the product has safety issues.”

Lessig returned again and again to the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, which he said established the standard that a factual, non-controversial statement was allowed, so long as it did not “chill commercial speech.” “Commercial speech,” a specific legal term, often relates to convincing the audience to purchase a specific product.

Judge Chen questioned Olson about why it was burdensome for Berkeley to require a statement that the Federal Communications Commission already requires in manuals. Chen pointed out several times that the only deviation from FCC wording in the Berkeley ordinance was the reference to children.

“The FCC engaged in a delicate balance between safety and convenience,” Olson said, arguing that the greater prominence of the Berkeley requirement would upset that balance.

“The government has to provide a reason before it can impose speech on a private citizen,” Olson said. “It’s pretty much like putting a skull and crossbones on a product. It’s asking someone else to carry a misleading, controversial message.”

“This is completely new law that he is arguing for here,” Lessig countered. “Under the law as it is now, there is no problem with the Berkeley law.”

“The burden is on the plaintiffs, not the government,” Lessig said later in court. “The only right the plaintiff has is to argue that it chills commercial speech.”

Lessig said several times that he was certain that Olson would be making the same arguments in the U.S. Supreme Court, which drew raised eyebrows from Judge Chen.

The notice that the Berkeley ordinance would require reads:

“To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. 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 radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

It requires that the notice is provided on paper not less than 5-by-8 inches, in at least 18-point type. If the notice is “prominently displayed” at a point of sale, it must be on a poster not less than 8-1/2-by-11 inches in at least 28-point type.

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Lance Knobel