Win Against Cynical Use of First Amendment to Trash Warning Labels
We have been looking at what’s happening in the Bay Area to municipal regulations that would require warning labels on soda and cell phones. Industry claims that these warning labels violate their First Amendment rights by compelling speech. The cities contend that they are factual and uncontroversial disclosures on commercial speech, and raise only trivial First Amendment issues, easily passing muster under the deferential review of Zauderer.
On September 21, the cities won a big victory, defeating industry’s attempt to enjoin cell phone radiation warnings in Berkeley. Judge Chen of the Northern District of California expressed profound skepticism of industry’s First Amendment claims. He sided with the D.C. Circuit and the First Circuit in holding that Zauderer permissive review of factual commercial speech disclosures applied even when there was no issue of deception.
He went even further. The court suggested that when labels make clear that it’s the government talking, and not the company itself, the government should have even more leeway to communicate with consumers through product labels. Specifically, using a “rational basis with bite” form of review, the Court held that the warning labels satisfied this test even if they were not purely “factual and uncontroversial” as Zauderer review requires. This government speech part of the decision furnished independent grounds for denying CTIA a preliminary injunction, which is a good thing, because I’m not sure that part holds up. It borrows some of the same expansive understanding of government speech as was deployed in the Supreme Court’s Texas license plate decision (Walker v. Texas Division, Sons of Confederate Veterans, Inc.).
Even without this move, Judge Chen was right to find that the warning label survives Zauderer review. CTIA needs to fight its battles in the city council, where it is at no structural disadvantage. As John Coates has written persuasively, corporate deployment of the First Amendment in commercial speech cases is inefficient and incentive-distorting, in addition to diluting First Amendment liberties and democratic legitimacy.
http://lessig.tumblr.com/post/129594227102/big-victory-ctia-v-berkele