CTIA - The Wireless Association v. City of Berkely, No. 16-15141 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's denial of CTIA's request for a preliminary injunction seeking to stay enforcement of a city ordinance requiring cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed FCC guidelines for exposure to radio-frequency radiation.
The panel held that CTIA has little likelihood of success on its First Amendment claim that the disclosure compelled by the ordinance is unconstitutional under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), where the disclosure was reasonably related to a substantial government interest and was purely factual and uncontroversial; the ordinance complements and reinforces federal law and policy, rather than conflicted with it; CTIA failed to establish irreparable harm based on preemption; and the balance of the equities favors the City and the ordinance is in the public interest. Therefore, the panel held that the district court did not abuse its discretion in denying preliminary injunctive relief to CTIA.
Court Description: First Amendment. The panel affirmed the district court’s denial of CTIA’s request for a preliminary injunction that sought to stay enforcement of a City of Berkeley ordinance requiring cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation. CTIA challenged the compelled disclosure provision of the ordinance, arguing that it violated the First Amendment and was preempted. After the panel initially affirmed the district court’s denial of CTIA’s request for a preliminary injunction, the U.S. Supreme Court granted the CTIA’s petition for a writ of certiorari, vacated the opinion, and remanded for further consideration in light of its decision in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”). In American Beverage Ass’n v. City and County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc), the en banc court held that Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (holding that the government may compel truthful disclosure in commercial speech as long as the compelled disclosure is “reasonably CTIA V. CITY OF BERKELEY 3 related” to a substantial government interest, and involves factual and uncontroversial information that relates to the service or product provided), provided the appropriate framework to analyze a First Amendment claim involving compelled commercial speech. The panel considered CTIA’s likelihood of success on its First Amendment claim. The panel held that it would generally apply the intermediate scrutiny test mandated by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980), in commercial speech cases where the government acts to restrict or prohibit speech, but the Zauderer exception to the general rule of Central Hudson could apply. The panel held that the governmental interest in furthering public health and safety was sufficient under Zauderer as long as it was substantial. The panel also held that Zauderer required that the compelled disclosure further some substantial – that is, more than trivial – governmental interest. Applying the Zauderer test to the speech compelled by the Berkeley ordinance, the panel held that the text of the compelled disclosure was literally true, Berkeley’s required disclosure was uncontroversial within the meaning of NIFLA, and the compelled disclosure was not unduly burdensome. The panel concluded that CTIA had little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance was unconstitutional. Turning to the issue of federal preemption of Berkeley’s ordinance, the panel held that far from conflicting with federal law and policy, the Berkeley ordinance complemented and enforced it. The panel held that Berkeley’s compelled disclosure did no more than alert consumers to the safety disclosures that the Federal Communications Commission required, and directed consumers to federally compelled 4 CTIA V. CITY OF BERKELEY instructions in their user manuals providing specific information about how to avoid excessive exposure. The panel concluded that CTIA had little likelihood of success based on conflict preemption. The panel considered the other elements of its preliminary injunction analysis. The panel held that there was no showing of irreparable harm based on CTIA’s First Amendment claim, or based on the preemption claim. The panel concluded that the balance of the equities favored Berkeley. The panel further held that the ordinance was in the public interest and that an injunction would harm that interest. The panel concluded that the district court did not abuse its discretion in denying preliminary injunctive relief to CTIA. Dissenting in part, Judge Friedland wrote that CTIA is likely to succeed on the merits of its First Amendment challenge because Berkeley’s ordinance violates the First Amendment by requiring businesses to make false and misleading statements about their own products, and therefore the ordinance should have been preliminarily enjoined.
This opinion or order relates to an opinion or order originally issued on April 21, 2017.
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