In May, the city of Berkeley, California passed a law requiring cellphone retailers to put a warning on the devices about the potential risk of cancer. The ordinance is set to go into effect in August, but a First Amendment lawsuit may push the date back by at least a few weeks.
Under the new law, cellphone retailers must warn customers that wireless devices could be hazardous to their health, presumably by emitting hazardous levels of cancer-causing radiation. Starting in August, retailers must inform customers that “you may exceed the federal guidelines for exposure” to radio frequency radiation by carrying a cellphone in a pants or shirt pocket or tucked into a bra. “The potential risk is greater for children,” the warning continues, according to The New York Times (The Times).
Cellphones have not been around long enough for scientists to fully grasp the long-term cancer risks, which is why the Berkeley City Council embraced the new law. These same supporters point out that similar warnings are included in the fine print of cellphone manuals, and that the Berkeley warning is carefully written to reflect that language, The Times reports.
In response, CTIA-The Wireless Group, a consumer group, has filed a lawsuit against Berkeley alleging the ordinance violates the cellphone industry’s First Amendment rights. The group charges that retailers cannot be forced to say something that is “false.” A hearing is set for Aug. 6 in federal court in San Francisco, and the ordinance will not go into effect until the matter is settled, according to The Times.
A CTIA attorney said in an email to The Times that the Berkeley ordinance is “alarmist” and “violates the most fundamental principles of the First Amendment.” In the lawsuit, CTIA says that cellphones pose no cancer risk, regardless of where they are worn.
Lawrence Lessig, a professor at Harvard Law School, and Robert Post, the dean of Yale Law School and an expert on the First Amendment, say the legislation is unconstitutional and have agreed to defend Berkeley pro bono, according to The Times.
“The First Amendment is being contorted to all sorts of wrong ends,” Mr. Lessig told The Times. “We’re not intending to challenge the science of cellphones. We’re just making people aware of existing regulations.”
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from Parker Waichman http://www.yourlawyer.com/blog/berkeley-cellphone-ordinance-sparks-first-amendment-lawsuit/
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