Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 1 of 26 Nos. 11-17707, 11-17773 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CTIA - THE WIRELESS ASSOCIATION Plaintiff-Appellant / Cross-Appellee v. THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA Defendant-Appellee / Cross-Appellant Appeal from United States District Court for the Northern District of California Civil Case No. 3:10-cv-03224 WHA (Honorable William H. Alsup) ANSWER OF CTIA TO THE CITY AND COUNTY OF SAN FRANCISCO S PETITION FOR REHEARING EN BANC (SEPTEMBER 10, 2012 MEMORANDUM, SCHROEDER, CALLAHAN, KORMAN) PRELIMINARY INJUNCTION APPEAL Robert A. Mittelstaedt Craig E. Stewart JONES DAY 555 California Street 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Fax: (415) 875-5700 Andrew G. McBride* Joshua S. Turner Megan L. Brown WILEY REIN LLP 1776 K Street, N.W. Washington, DC 20006 Telephone: (202) 719-7000 Fax: (202) 719-7049 *Counsel of Record Counsel for Plaintiff-Appellant CTIA The Wireless Association (Additional Counsel Listed On Signature Page)
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 2 of 26 TABLE OF CONTENTS I. INTRODUCTION... 1 II. BACKGROUND ON THE CITY S COMPELLED SPEECH REGIME AND THE COURSE OF PROCEEDINGS... 2 III. STANDARD FOR REHEARING EN BANC... 4 IV. THE CITY HAS FAILED TO JUSTIFY EN BANC REVIEW... 5 A. The City Does Not Identify Any Conflict with a Decision by This or Any Other Court of Appeals.... 5 1. No Intra-Circuit Conflict has been Claimed or Created.... 5 2. There Is No Inter-Circuit Conflict.... 7 B. The Proceeding is Not of Exceptional Importance Necessitating En Banc Review.... 11 V. THE RESULT IS AMPLY SUPPORTED BY OTHER BEDROCK FIRST AMENDMENT PRECEDENT.... 15 VI. CONCLUSION... 17 i
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 3 of 26 TABLE OF AUTHORITIES CASES Page(s) Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)... 16 Connecticut Bar Ass n v. United States, 620 F.3d 81 (2d Cir. 2010)... 9 Dex Media West, Inc. v. City of Seattle, 696 F.3d 952 (9th Cir. 2012)... 7 Dex Media West Inc. v. City of Seattle, 793 F. Supp. 2d 1213 (W.D. Wash. 2011)... 7 Discount Tobacco City & Lottery, Inc. v. FDA, 674 F.3d 509 (6th Cir. 2012)... 10, 11 Entertainment Software Ass n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006)... 10 Environmental Defense Center, Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003)... 6, 7 Farina v. Nokia, 625 F.3d 97 (3d Cir. 2010)... 13 Ibanez v. Florida Department of Business & Professional Regulation, 512 U.S. 136 (1994)... 13 International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)... 17 Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324 (2010)... 11 National Electrical Manufacturers Ass n v. Sorrell, 272 F.3d 104 (2d Cir. 2001)... 8, 9 ii
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 4 of 26 TABLE OF AUTHORITIES (Continued) Page(s) New York State Restaurant Ass n v. New York City Board of Health, 556 F.3d 114 (2d Cir. 2009)... 9 Newdow v. United States Congress, 328 F.3d 466 (9th Cir. 2003)... 5 Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986)... 16 Pharmaceutical Care Management Ass n v. Rowe, 429 F.3d 294 (1st Cir. 2005)... 9 Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011)... 9 R.J. Reynolds v. FDA, No. 5332, 2012 WL 3632003 (D.C. Cir. Aug. 24, 2012)... 10 Riley v. National Federation of the Blind, 487 U.S. 781 (1988)... 16 Rumsfeld v. FAIR, 547 U.S. 47 (2006)... 5 Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)... 16 Styrene Information & Research Center v. OEHHA, No. C064301, 2012 WL 5353546 (Cal. Ct. App. Oct. 31, 2012)... 14 United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960)... 4 Video Software Dealers v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009)... 5, 6, 8, 15 Wooley v. Maynard, 430 U.S. 705 (1977)... 16 iii
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 5 of 26 TABLE OF AUTHORITIES (Continued) Page(s) Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)...passim STATUTES, RULES, REGULATIONS, AND ADMINISTRATIVE MATERIALS 29 C.F.R. 1910.1200, et seq.... 15 Fed. R. App. P. 35(a)... 2, 4 Fed. R. App. P. 35(a)(1)... 4 Fed. R. App. P. 35(a)(2)... 11 Fed R. App. P. 35(b)(1)(B)... 4 9th Cir. R. 34-6... 2 Cal. Health & Safety Code 25249.6... 14 Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C.R. 15123 (1996)... 12 Procedures for Reviewing Requests for Relief from State and Local Regulations, 12 F.C.C.R. 13494 (1997)... 13 MISCELLANEOUS Brief for United States, Cellular Phone Taskforce v. FCC, No. 00-393, 2000 WL 33999532 (Dec. 4, 2000)... 12 FDA, No Evidence Linking Cell Phone Use To Risk of Brain Tumors, http://www.fda.gov/forconsumers/consumerupdates/ucm212273.htm (last visited Nov. 15, 2012)... 12 FCC, Radio Frequency Safety, http://transition.fcc.gov/oet/rfsafety/ (last visited Nov. 15, 2012)... 12 iv
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 6 of 26 TABLE OF AUTHORITIES (Continued) Page(s) National Cancer Institute, Factsheet, available at http://www.cancer.gov/cancertopics/factsheet/risk/cellphones (last visited Nov. 16, 2012)... 12 SF Environment, http://sfenvironment.org/article/using-cell-phonessafely/reduce-exposure-to-cell-phone-radiation (last visited Nov. 15, 2012)... 9 United States Government Accountability Office, GAO 12-1771, Exposure and Testing Requirements for Mobile Phones Should be Reassessed (July 2012)... 11, 12, 13 v
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 7 of 26 I. INTRODUCTION The FCC has enacted comprehensive rules designed to ensure that cell phones are safe. The City concedes, and the district court found, that there is no evidence establishing a link between cell phones and cancer. In adopting an Ordinance forcing cell phone retailers to disseminate warnings and recommendations concerning what the City believes are possible dangers of cell phone use, the City expressly relied on the Precautionary Principle, which calls for warning about the risk of risk before any threat to human health is established. A panel of this Court unanimously and correctly concluded that, in light of the federal safety standards and the absence of any known adverse effects, the City s required statements are misleading and not purely factual, and therefore violate the First Amendment. The panel decided the case narrowly, concluding that the City s warnings could not survive even the deferential Zauderer test that was applied at the City s urging. The principles underpinning the panel decision that government may not compel the expression of subjective opinions and recommendations regarding a matter of public controversy and debate are well established in Supreme Court and Ninth Circuit precedent. The subjective and misleading nature of the City s compelled messages are highlighted by the fact that they contradict the conclusions of relevant federal agencies. And because the panel s narrow ruling eliminated the need to address broader issues, such as the proper level of First Amendment scrutiny, this case presents no opportunity to address any issue of lasting significance in this or any other Circuit. The City s petition makes no real attempt to meet this Circuit s standard for en banc review. Instead, it criticizes the panel for judicial restraint in deciding the
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 8 of 26 case narrowly, in an unpublished decision. 1 2 The City argues the panel should have provided guidance on broad First Amendment issues, Pet. 7-10, including the abstract question whether governments must wait for definitive proof of harm to ever require disclosures, Pet. 14. But there was no need for the panel to reach such questions given its straightforward application of the Zauderer test and its finding that the City s misleading warnings fail that test. Neither the City s dissatisfaction with the panel s application of Zauderer, nor its desire for guidance on unnecessary doctrinal issues, are enough to justify en banc review. Such review is not appropriate unless (1) en banc consideration is necessary to secure or maintain uniformity of the court s decisions or (2) the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a). Here, there is no conflict between the panel decision and any decision of this Court, another Circuit, or the Supreme Court. And the City s rhetoric does not transform the routine application of precedent into a case involving questions of exceptional importance. The panel rejected what one judge at argument called the City s demagoguery about unsubstantiated health risks, and nothing in its decision threatens other disclosure regimes that require only the dissemination of purely factual material, such as the caloric count of a hamburger or the presence of a known toxin in a consumer product. In short, the City fails to meet the standard for rehearing en banc and its petition should be denied. II. BACKGROUND ON THE CITY S COMPELLED SPEECH REGIME AND THE COURSE OF PROCEEDINGS In 2011, the City adopted a novel and intrusive three-part cell phone warning 1 Frustration with the decision not to publish the opinion is no reason for en banc review. The City can request publication by letter. See 9th Cir. R. 34-6.
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 9 of 26 obligation for private retail stores. It mandated the prominent display in stores of a poster with graphics depicting yellow, orange, and red circles penetrating human heads and pelvic regions. The Ordinance required that a sticker be affixed to display cards adjacent to phones in all retail stores, referring to radiofrequency energy ( RF ) and encouraging consumers to ask for a factsheet. And it required retailers to disseminate a factsheet containing alarmist graphic warnings, describing RF as a possible carcinogen, and alleging danger to children. The factsheet also recommend[ed] that consumers turn off phones when not in use and avoid cell phones in designated circumstances. The City acknowledges that these materials convey its message about cell phone safety, PI Opp. (DCT Doc. 66) 13, 14, 16; Pet. 17, and has conceded that its message is controversial. City Open. Br. 34. On CTIA s motion, the district court enjoined the requirements, finding that the sticker, poster, and factsheet violated the First Amendment. In what the City itself called an unorthodox shortcut, City Stay Opp. 36, the court proposed detailed revisions to the factsheet and held that the City could force retailers to distribute it, as revised by the district court. This Court granted an injunction pending appeal to prevent forced dissemination of the revised factsheet. The City s cross-appeal defended all of the warnings under Zauderer, claiming that each was rationally related to the City s interest in making consumers aware of possible risk and each required disclosure of only factual information. City Open. Br. 34. CTIA argued that the warnings constituted the City s position on matters of public controversy, and that heightened scrutiny should apply. CTIA argued, in the alternative, that they were unlawful even under Zauderer. The parties also briefed federal preemption, 3
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 10 of 26 CTIA s argument that the district court s redrafting of the factsheet exceeded its authority, and the City s requests for judicial notice. The panel decided the cross-appeals on narrow grounds, unanimously concluding in an unpublished memorandum that the warnings were misleading and controversial, and therefore fail the Zauderer standard. Having concluded that the Ordinance and display materials would not survive application of the City s preferred test, the panel had no need to reach other issues briefed by the parties. III. STANDARD FOR REHEARING EN BANC En banc review is only appropriate where (1) en banc consideration is necessary to secure or maintain uniformity of the court s decisions or (2) the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a). En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist. United States v. Am.-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). The City identifies no intra-circuit conflict that would justify review. Fed. R. App. P. 35(a)(1). Inter-circuit splits can be of exceptional importance where a petition identifies an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue. Fed R. App. P. 35(b)(1)(B). But while the City has cited a number of cases from other Circuits, none either apply a legal standard or reach a conclusion inconsistent with those of the panel. 2 2 Proposed amici hint at conflicts, Brief of Amicus Curiae Environmental Working Group and Public Citizen, Inc. ( EWG Br. ) (DE 99-1); Brief of Amicus Curiae Consumers for Safe Cell Phones ( CSCP Br. ) (DE 101); Brief of Amicus Curiae Environmental Health Trust and California Brain Tumor Association ( EHT Br. ) (DE 102-1); Letter of Amicus Curiae California Brain Tumor Association ( CBTA Ltr. ) (DE 104), but there are none. In any event, their arguments are not properly before the en banc court either because they have been abandoned by the City, are 4
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 11 of 26 The City rests primarily on the exceptional importance prong, but cannot satisfy it. This prong is met only when a case is both of exceptional importance and the decision requires correction.... To rehear a case en banc simply on the basis that it involves an important issue would undermine the three-judge panel system. Newdow v. U.S. Congress, 328 F.3d 466, 469-70 (9th Cir. 2003) (Reinhardt, J., concurring in denial of en banc review). The City alleges no error that requires correction, and the narrow decision based on the specific message compelled by the City is unlikely to have broader impacts. IV. THE CITY HAS FAILED TO JUSTIFY EN BANC REVIEW A. The City Does Not Identify Any Conflict with a Decision by This or Any Other Court of Appeals. Because the panel applied the well-settled Zauderer test to the facts in a way that does not conflict with any other precedent, there is no need for en banc review. 1. No Intra-Circuit Conflict has been Claimed or Created. The City does not claim any intra-circuit conflict. Rather, it seeks the en banc court s guidance, Pet. 1, on the circumstances in which the First Amendment permits the government to impose consumer disclosure requirements, Pet. 7. This broad question runs directly counter to the panel s effort to confine its ruling to the narrowest possible grounds. In any event, the City is wrong in claiming that this Court has provided no guidance, id., on this question. In Video Software Dealers v. Schwarzenegger, not the subject of the City s petition, or improperly rely on material outside the record. CSCP Br. 3 (Zauderer argument never made by the City); see also e.g., EWG Br. 6-9 (argument about Rumsfeld v. FAIR, 547 U.S. 47 (2006) that the City long ago abandoned); CBTA Ltr. 3 (same, and referring to extra-record material). Furthermore, CBTA s Letter dramatically misrepresents both the content of the GAO s report and the record here, and should be disregarded in its entirety. 5
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 12 of 26 556 F.3d 950 (9th Cir. 2009), this Court struck down a state law regulating violent video games, including an obligation to label games with 18, holding that in order to fall within Zauderer, compelled speech must do no more than require the disclosure of purely factual information. Id. at 953. The Court concluded that the label failed Zauderer because it did not convey purely factual information; but compels the carrying of the State s controversial opinion. Id. The panel here faithfully applied Schwarzenegger when it found the City was forcing the promotion of the government s opinion outside of Zauderer. The panel also followed Schwarzenegger in concluding that it did not need to reach doctrinal questions such as the applicable level of scrutiny. As Schwarzenegger explained, a court would [o]rdinarily decide first what level of scrutiny to apply to the labeling requirement. However, we need not decide that question because the labeling requirement fails even under the factual information and deception prevention standards set forth in Zauderer. Id. at 966. 3 The panel thus properly concluded that, because the Ordinance does not satisfy even the most forgiving First Amendment standard, no further analysis was necessary. The panel s decision is also consistent with Environmental Defense Center, Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), cited in passing by the City. EPA required regulated [municipal entities] to distribute educational materials... about the impacts of stormwater discharges on water bodies and the steps the public can take to reduce pollutants. Id. at 848 (citation omitted). While it is not clear that the EPA court applied the test from Zauderer, that case illustrates the 3 EWG claims Schwarzenegger did not directly hold that disclosures must be purely factual and uncontroversial. EWG Br. 12-14. This is incorrect. This Court applied Zauderer and held that misleading information and subjective opinion fall outside that relaxed standard. Schwarzenegger, 556 F.3d at 953. 6
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 13 of 26 fatal flaws in the City s warnings. EPA s broad requirements d[id] not dictate a specific message, and were not opinion. Id. at 849. In contrast, here the City drafted voluminous, specific content reflective of its own message. PI Opp. (DCT Doc. 66) 13; Pet 17. There also was no controversy over the EPA materials basis or accuracy. The EPA decision presume[s] that regulated entities agree with the central message, 344 F.3d at 850, but no such presumption could apply here, where the City s message is controversial, vigorously disputed, and at odds with the views not only of cell phone retailers, but also of the FCC, FDA, EPA, and other expert federal agencies. Finally, while the City repeatedly cited the district court decision in Dex Media West Inc. v. City of Seattle, 793 F. Supp. 2d 1213 (W.D. Wash. 2011) to argue that Zauderer saves its regime, that decision has now been overturned by this Court, see Dex Media West, Inc. v. City of Seattle, 696 F.3d 952 (9th Cir. 2012). The district court upheld a compelled speech requirement, reasoning that [t]he City s required message includes only purely factual and uncontroversial information because it simply informs residents about the... opt-out program. Dex, 793 F. Supp. 2d at 1231. This Court applied strict scrutiny and invalidated the entire regime. See Dex, 696 F.3d 952. In addition to eliminating the City s claimed support in this Circuit for its expansive reading of Zauderer, this Court s decision strongly suggests that the alternative to the panel s Zauderer analysis would be application of strict scrutiny. But the City has never argued it could pass Central Hudson s commercial speech test, let alone satisfy strict scrutiny. 2. There Is No Inter-Circuit Conflict. While the City cites appellate decisions addressing important First Amendment questions, Pet. 6-7, it alleges no conflict with them. There is no reason for the en banc court to address issues being litigated in other Circuits, 7
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 14 of 26 which are not necessary to resolve this case and with which the panel does not conflict. The City claims that panel s decision is at odds with with an 11-year-old Second Circuit case, National Electrical Manufacturers Ass n v. Sorrell, 272 F.3d 104 (2d Cir. 2001), Pet. 16, but the decisions are perfectly consistent. 4 As here, Sorrell analyzed whether the mandated disclosures were factual and uncontroversial under Zauderer. Sorrell, 272 F.3d at 113-16. In upholding those truthful, factual disclosures, Sorrell used the same Zauderer language that the Court used here. Id. at 113 ( Regulations that compel purely factual and uncontroversial commercial speech are subject to more lenient review. (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985))). This Court has interpreted Sorrell as sustaining a state labeling law that required manufacturers of mercury-containing products to disclose on packaging factual and uncontroversial information about the disposal of mercury-containing products. Schwarzenegger, 556 F.3d at 966. The only difference in the decisions is the result reached after applying the settled Zauderer standard to particular facts. The City implies that the Second Circuit would have reached a different conclusion. But the City s warnings are wholly different from the requirements in Sorrell. There was no dispute in Sorrell that improper disposal of lightbulbs containing mercury can harm the environment, whereas the City acknowledges a 4 Neither the panel here nor Schwarzenegger hold that Zauderer should be expanded beyond the context of consumer deception and confusion, as the Second Circuit concluded in Sorrell. While this issue was fully briefed, it was not necessary for the panel to address it given its holding that the City could not satisfy even Zauderer s relaxed scrutiny. 8
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 15 of 26 debate over cell phone safety. 5 Sorrell also did not involve recommendations. CTIA Resp. 19 n.12; contra Pet. 10. The required statement that bulbs may not be disposed of or placed in a waste stream, Sorrell, 272 F.3d at 107 n.1, was merely an accurate statement of law, not a controversial recommendation. In contrast, the City requires dissemination of disagreeable state-sanctioned positions. 6 Id. at 114; see Op. 3. The panel s application of Zauderer is consistent with Sorrell. 7 5 See, e.g., City Stay Opp. 33. The City s website explains, [t]here is debate in the scientific community about the health effects of cell phones, http://sfenvironment.org/article/using-cell-phones-safely/reduce-exposure-to-cellphone-radiation (last visited Nov. 15, 2012). 6 The City claims to negate First Amendment concerns by making abundantly clear that the message is from the City. Pet. 17. This failed argument is erroneous for the reasons CTIA has explained. CTIA Open. Br. 26. 7 Other cases that the City cites in passing confirm that the panel s application of Zauderer is in line with other circuits. In New York State Restaurant Ass n v. New York City Board of Health, 556 F.3d 114, 134 (2d Cir. 2009), the Second Circuit found that laws that compel the reporting of factual and uncontroversial information fall under rational basis review, as in Zauderer. The calorie disclosures upheld there were short, factual, and uncontroversial. In Connecticut Bar Ass n v. United States, 620 F.3d 81, 93, 98-99 (2d Cir. 2010), the court applied Zauderer to uphold debt relief agency disclosures with respect to the types of services provided factual, nonmisleading statements that had been upheld previously by the Supreme Court. Similarly, in Pharmaceutical Care Management Ass n v. Rowe, 429 F.3d 294 (1st Cir. 2005), the First Circuit upheld, under Zauderer, a statute requiring pharmacy benefit managers to disclose factual information concerning conflicts of interests and certain financial arrangements with third parties. Finally, Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 632 F.3d 212, 227-28 (5th Cir. 2011) upheld disclosures to identify actors in attorney advertisements indisputably factual and incontrovertible disclosures. Nothing approaching the subjective, state-sanctioned opinion on an issue of public debate has been sanctioned by any Circuit under Zauderer or otherwise. 9
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 16 of 26 The City refers to ongoing litigation over the FDA s graphic tobacco warnings, Pet. 7-10, but cannot identify any conflict with those cases. The Sixth Circuit rejected a facial challenge to the statute authorizing the warnings, Discount Tobacco City & Lottery, Inc. v. FDA, 674 F.3d 509 (6th Cir. 2012), while the D.C. Circuit invalidated the FDA s requirements in an as-applied challenge, R.J. Reynolds v. FDA, No. 5332, 2012 WL 3632003 (D.C. Cir. Aug. 24, 2012). The City claims the cases appear to reflect disagreement about whether disclosure requirements can be imposed only to prevent consumer deception or whether other interests suffice, saying it is left to wonder about this. Pet. 9. While this is an issue that may ultimately be resolved by the Supreme Court, 8 there is no need for this Court to address it. The panel s decision does not rest upon, or even mention, this distinction. It applied Zauderer, as the City requested, and found the warnings misleading and controversial and unable to meet Zauderer s most basic requirements, regardless of the City s purpose. Op. 3. Any wonder over the purposes allowable under Zauderer is academic. Proposed amici claim the FDA cases create a split on whether Zauderer disclosures must be purely factual and uncontroversial. EWG Br. 12-13. EWG recognizes that two circuit courts have explicitly held that Zauderer applies only to purely factual and uncontroversial disclosures. Id. at 11 (citing R.J. Reynolds, 2012 WL 3632003 at *7; Entm t Software Ass n v. Blagojevich, 469 F.3d 641, 652 (7th Cir. 2006)). EWG points to the Sixth Circuit s suggestion that purely factual and uncontroversial is too narrow a formulation of Zauderer s predicate, EWG Br. 13; Discount Tobacco, 674 F.3d at 559 n.8. But, in the same opinion, the Sixth Circuit reiterated that rational basis review applies only insofar as a disclosure 8 The Sixth Circuit decision is before the Supreme Court on petition for certiorari. The D.C. Circuit is considering FDA s petition for rehearing en banc. 10
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 17 of 26 require[s] factual information and only an accurate statement, id. (characterizing Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324 (2010)), and that Zauderer would not apply to opinion, id. at 561. Any distinction between the purely factual and uncontroversial formulation and Discount Tobacco s factual and accurate formulation is more semantic than real. 11 The City s subjective opinions about who should use cell phones and how they should use them are neither factual nor accurate, id., at 559 n.8, nor purely factual and uncontroversial, Op. 3, and would fail either test. B. The Proceeding is Not of Exceptional Importance Necessitating En Banc Review. The City has not shown that this proceeding is of exceptional importance requiring en banc review. Fed. R. App. P. 35(a)(2). It rehashes arguments that the panel rejected: speculation about potential future public health issues and claims that invalidating its warnings undermines other regimes. Both are meritless. There is no public health issue requiring this Court s attention. Throughout this case the City has relied on what could result if it turns out there is a health threat. City Stay Opp. 2, 37. The City has no evidence showing an actual hazard. The best it claims is a possible link, Pet. 1, because scientific proof of the hazard has not yet been obtained, id. This is because there is no known health hazard from cell phones. As explained, CTIA Open. Br. 8-11, and as the independent Government Accountability Office ( GAO ) recently concluded after reviewing the state of scientific study, research in this area continues but decades of [s]cientific research to date ha[ve] not demonstrated adverse human health effects from exposure to RF. GAO, Exposure and Testing Requirements for Mobile Phones Should be Reassessed, GAO 12-771, 6 (2012) ( GAO Rpt. ). The Interphone study, Pet. 12-13, which GAO reviewed, does not establish the risks
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 18 of 26 claimed: it makes clear that no causal conclusion can be drawn, 9 and both the FDA and FCC agree that it shows no increased health risk. 10 This is an area of careful, ongoing federal scrutiny. As the panel held, [t]he FCC... has established limits of radiofrequency energy exposure, within which it has concluded using cell phones is safe. Op. 3. The FCC s rules were supported by every federal health and safety agency, Br. for United States, Cellular Phone Taskforce v. FCC, No. 00-393, 2000 WL 33999532, at *16-17 (Dec. 4, 2000), and contain a substantial safety factor, having been set at one-fiftieth of the point at which RF energy begins to cause any unhealthful thermal effect. Id. at *3 n.2. 11 The City has from the beginning focused on possible non-thermal effects, but the FCC considered such claimed effects and has repeatedly stated that its standards are sufficient to protect the public and workers from exposure to potentially harmful RF fields. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C.R. 15123, 15124 ( 1) (1996). 12 It rejected 9 See SER 543-545 (citing the Interphone Study); CTIA Resp. 36-37. 10 FDA, No Evidence Linking Cell Phone Use To Risk of Brain Tumors http://www.fda.gov/forconsumers/consumerupdates/ucm212273.htm (last visited Nov. 15, 2012); FCC, Radio Frequency Safety http://transition.fcc.gov/oet/rfsafety/ (last visited Nov. 15, 2012). 11 Proposed amici claim the FDA, not the FCC is responsible for cell phone safety. CSCP Br. 8. The FCC ensures that cell phones meet safety standards. The FDA supports the standards and believes research does not show cell phones have adverse health effects. GAO Rpt. 6; CTIA Open. Br. 9 (FDA statements). 12 CTIA Open. Br. 43-45 (explaining FCC policy choices on alleged non-thermal effects, claimed sensitivity of children, testing, and other issues). EHT invokes concerns about children, EHT Br. 9, but selectively quotes the National Cancer Institute, omitting its statement that the data... do not support this theory. Factsheet, available at http://www.cancer.gov/cancertopics/factsheet/risk/cellphones (last visited Nov. 16, 2012). CSCP criticizes the testing regime, but this too is addressed by the 12
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 19 of 26 requests to make its rules even more conservative to account for these alleged effects. Procedures for Reviewing Requests for Relief from State and Local Regulations, 12 F.C.C.R. 13494, 13505-08 ( 31-39) (1997). 13 The FCC regularly reviews such issues. There is thus no basis for the City to claim that the FCC has not done its job. In any event, such a claim directly assaults the sufficiency of agency regulations and runs into federal preemption. See Farina v. Nokia, 625 F.3d 97, 122 (3d Cir. 2010); ER 213-15 (FCC filing explaining that attacks on its regime are preempted). Likewise, there is no basis for concern about collateral damage to other regimes. The City claims that the decision will foreclose meaningful healthrelated disclosure requirements, Pet. 1, because it requires definitive scientific proof of harm. Pet. 8. But the City challenges an opinion the Court did not write. The Court did not say that absent such proof any government mandate would necessarily fail First Amendment scrutiny. 14 Rather, the panel applied the City s preferred legal standard and found the warnings were misleading and controversial FCC. See GAO Rpt. at Appendix II (noting the FCC will review equipment certification standards). 13 In fact, the GAO report cited, EHT Br. 19, suggests the FCC consider adopting a less conservative standard, moving from 1.6 watts/kg to the 2.0 watts/kg standard used in Europe. GAO Rpt. 16-19. 14 The City claims to have adequate evidence establishing a risk, but the panel did not pass on this issue, having found the regime otherwise infirm. In any event, the City continues to misstate what Ibanez v. Florida Department of Business & Professional Regulation, 512 U.S. 136 (1994), requires. Pet. 14 (mischaracterizing Ibanez s reference to potentially real as the relevant threshold). As explained, the government must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. CTIA Resp. 24 (quoting Ibanez, 512 U.S. at 146). The City lacks evidence showing an actual harm or known danger. Id. at 25-26. 13
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 20 of 26 opinion. The panel forecloses no meaningful health-related disclosure requirements that have sufficient basis, are not misleading, and are factual and uncontroversial. The regimes the City invokes, including the federal Hazard Communications Standard ( HCS ), fetal alcohol warnings, and California s Proposition 65 ( Prop 65 ), were fully briefed. See DCT Doc. 87; DCT Doc. 88; City Stay Opp. 28-31; CTIA Open. Br. 37-42; City Open. Br. 26-27. The panel did not credit the City s dire predictions, because all of the cited regimes are materially different from the City s. Each rests on uncontroversial determinations and mandates minimal, factual information, in contrast to the City s lengthy and misleading recommendations and opinions. As for Proposition 65, the City has now backtracked, acknowledging that nothing about the decision affects that regime. City 28(j) Ltr. (DE 105). As CTIA has long pointed out, and as the California Court of Appeals recently confirmed, Proposition 65 s standard known to the State of California to cause cancer is much higher than the City s meager basis for its regulation. 15 Regarding the HCS, the City s concern about the decision s impact on that regime is unfounded. The HCS is not the sort of consumer disclosure regime the City professes to protect. Its complex obligations regulate and educate employees about workplace chemical hazards through training, labels, and inclusion of 15 To tie Prop 65 to this case, the City claimed that an IARC 2B designation as a possible carcinogen alone was sufficient to list a substance and require warnings under Prop 65. Pet. 8-9. CTIA explained that an IARC 2B designation is not enough to be known to the [S]tate [of California] to cause cancer, Cal. Health & Safety Code 25249.6, and cited case law so holding. DCT Doc. 87 1-2. There is now no doubt this is the law. City 28(j) Ltr., (citing Styrene Info. & Research Ctr. v. OEHHA, 2012 WL 5353546, at *1-2 (Cal. Ct. App. 2012)). 14
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 21 of 26 information on technical bulletins, Material Safety Data Sheets. See 29 C.F.R. 1910.1200, et seq. The fact that information requirements regarding potential carcinogens can be based on an IARC 2B grouping, id. 1910.1200(d)(4)(ii) (imposing requirements on [c]hemical manufacturers, importers and employers ), says nothing about forced dissemination of City opinions in private retail space. The City suggests that the panel rejected its purported reliance on IARC 2B and thereby held that any regime using that classification is invalid. This misreads the decision. The panel said nothing about IARC classifications. It considered the City s submissions, its acknowledgement of a debate over health effects, the FCC s conclusion that cell phones are safe, and the warnings content. It concluded that on this record these warnings are misleading, convey opinion, and are not purely factual and uncontroversial. Op. 2-3. The HCS is wholly unlike the City s regime, because among other things, HCS obligations do not contradict federal safety determinations, mislead the public, or convey opinion. 16 decision does not imperil the HCS. 17 V. THE RESULT IS AMPLY SUPPORTED BY OTHER BEDROCK FIRST AMENDMENT PRECEDENT. The The City accuses the panel of giving its materials short shrift. But the panel prudently concluded that the warnings would not pass Zauderer even if Zauderer applied. See Schwarzenegger, 556 F.3d at 966. This left more substantial questions for another case that actually turns on them. 16 See, e.g., CTIA Resp. 37-42; DCT Doc. 87. 17 Likewise, alcohol warnings are minimally intrusive, based on documented, undisputed risk to fetuses, and are factually accurate and uncontroversial. CTIA Resp. 38-39. They would easily pass the panel s test. 15
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 22 of 26 The First Amendment guarantees the right to speak freely and the right to refrain from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714 (1977). This applies to compelled statements of fact and opinion. Riley v. Nat l Fed. of the Blind, 487 U.S. 781, 783 (1988). Government can express [its] views through its own speech, but cannot infringe other s rights, even in commercial settings, to advance its view. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2671 (2011). The government cannot force private actors to promote messages with which they disagree. Pac. Gas & Elec. Co. v. Pub. Utils. Comm n, 475 U.S. 1, 7 (1986). The City has never tried to justify its warnings under either strict scrutiny or the commercial speech standard from Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Instead, it seeks to expand Zauderer to create a broad exception for so-called consumer disclosure requirements. Pet. 6. The City claims that if it has some basis, does not extinguish other avenues to speak, and includes markings indicating the message is the government s, it can force private parties to disseminate not only facts but virtually any non-ideological message, including advice, tips, and recommendations. Pet. 13; City Stay Opp. 32. The City asserts it need not be correcting speech or confined to commercial transactions. And it need not explain why it cannot promote its message adequately itself. If adopted, this approach would transform the First Amendment into authority to force private parties to promote preferred government messages. City Open. Br. 29 (invoking marketplace of ideas to justify forced speech). The City s position opens the door to local governments imposing whatever messages they deem important, from the promotion of green products to discouraging the use of birth control. But [t]he First Amendment is a limitation on government, 16
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 23 of 26 not a grant of power. Int l Soc y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 695 (1992) (Kennedy, J. concurring in judgment). The City s position has dire consequences for First Amendment freedoms. The City cannot pass Zauderer, and the only alternative legal test that could apply heightened scrutiny would be fatal to the Ordinance, because the City cannot indeed, has not even attempted to pass it. En banc review would waste this Court s time and resources. VI. CONCLUSION The City s Petition for rehearing en banc should be denied. Dated: November 19, 2012 Respectfully submitted, /s/ Joshua S. Turner Andrew G. McBride* Joshua S. Turner Megan L. Brown Wiley Rein LLP 1776 K Street, N.W. Washington, DC 20006 Telephone: (202) 719-7000 Fax: (202) 719-7049 jturner@wileyrein.com *Counsel of Record 17 Robert A. Mittelstaedt Craig E. Stewart JONES DAY 555 California Street 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 24 of 26 Fax: (415) 875-5700 ramittelstaedt@jonesday.com Terrence J. Dee KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2099 Fax: (312) 862-2200 tdee@kirkland.com Seamus C. Duffy Susan M. Roach Drinker Biddle & Reath LLP One Logan Square Suite 2000 Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Fax: (215) 988-2757 seamus.duffy@dbr.com Jane F. Thorpe Scott A. Elder ALSTON & BIRD LLP 1201 West Peachtree St., N.W. Atlanta, Georgia 30309-3424 Telephone: (404) 881-7592 Fax: (404) 253-8875 jane.thorpe@alston.com Attorneys for Plaintiff-Appellant CTIA The Wireless Association 18
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 25 of 26 CERTIFICATE OF COMPLIANCE I hereby certify that this brief has been prepared using 14 point font Times New Roman typeface, proportionally spaced, at exactly 24 points. According to the word count feature of my Microsoft Word for Windows software, this brief contains 5,060 words. This is the same word count as the City s Petition, which was accompanied by an unopposed motion for leave to exceed the length limitations in the Court s rules that the Court granted. According to Circuit Rule 40-1, a response when ordered by the Court, shall comply with the same length limitations as the petition. Nonetheless, the City consents to CTIA filing a brief of the same word length as its Petition, which contained 5,060 words and was 17 pages. I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on November 19, 2012. By: /s/ Joshua S. Turner
Case: 11-17707 11/19/2012 ID: 8408183 DktEntry: 106 Page: 26 of 26 CERTIFICATE OF SERVICE I hereby certify that on November 19, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case that are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that one of the participants in the case is not an active CM/ECF user. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participant: Deborah J. Fetra Pacific Legal Foundation 930 G Street Sacramento, CA 95814 /s/ Joshua S. Turner Joshua S. Turner Counsel for CTIA 2