CTIA - The Wireless Association v. San Francisco

NCLC urged the U.S. Court of Appeals for the Ninth Circuit to hold that the government cannot rely on the so-called “precautionary principle” – a discredited regulatory theory borrowed from European environmental laws intended to justify regulation in the absence of a scientific basis – to justify compelling businesses to speak on the government’s behalf. In this case, San Francisco passed an ordinance requiring cell phone retailers to essentially advertise to consumers about supposed health risks of using cell phones - despite the fact that numerous federal agencies have announced that the weight of the scientific evidence does not show that cell phone use has harmful effects. In the absence of such evidence, San Francisco adopted its own version of the “precautionary principle” to justify its ordinance. In its amicus brief, NCLC argues that the San Francisco ordinance violates the First Amendment, which limits the government’s ability to compel parties to disseminate the government’s own message. NCLC explains that under well-settled First Amendment law, the government cannot compel speech unless it can demonstrate that there is a real harm or problem that its regulation would in fact alleviate. The precautionary principle operates on exactly the opposite premise, shifting the burden to regulated parties to prove that no harm could exist, encouraging the government to impair speech in the absence of scientific support. Allowing governments to rely on the “precautionary principle” would gut the First Amendment standard, effectively allowing the government to regulate speech without any showing of a real problem.

This case is not yet decided.

Amicus brief filed 2/1/2012.