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CTIA-The Wireless Association v. City of Berkeley

United States Court of Appeals, Ninth Circuit

October 11, 2017

CTIA-The Wireless Association, Plaintiff-Appellant,
v.
City of Berkeley, California; Christine Daniel, City Manager of Berkeley, California, in her official capacity, Defendants-Appellees.

          D.C. No. 3:15-cv-02529-EMC

          Theodore B. Olson (argued), Helgi C. Walker, Jacob T. Spencer, and Samantha A. Daniels, Gibson Dunn & Crutcher LLP, Washington, D.C.; Joshua S. Lipshutz and Joshua D. Dick, Gibson Dunn & Crutcher LLP, San Francisco, California; for Plaintiff-Appellant.

          Lester Lawrence Lessig, III (argued), Cambridge, Massachusetts; Amanda Shanor, New Haven, Connecticut; Savith Iyengar, Deputy City Attorney; Zach Cowan, City Attorney; Berkeley City Attorney's Office, Berkeley, California; for Defendants-Appellants.

          Robert Corn-Revere and Ronald G. London, Davis Wright Tremaine LLP, Washington, D.C., for Amicus Curiae The Association of National Advertisers, Inc.

          Claire Woods and Michael E. Wall, San Francisco, California; as and for Amicus Curiae Natural Resources Defense Council.

          Pratik A. Shah, James E. Tysse, and Raymond P. Tolentino, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Kathryn Comerford Todd and Warren Postman, U.S. Chamber Litigation Center Inc., Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States.

          Richard P. Bress, Melissa Arbus Sherry, Michael E. Bern, and George C. Chipev, Latham & Watkins LLP, Washington, D.C.; James K. Lynch and Marcy C. Priedeman, Latham & Watkins LLP, San Francisco, California; for Amicus Curiae American Beverage Association.

          Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel denied a petition for panel rehearing and denied a petition for rehearing en banc on behalf of the court. Judge Friedland voted to grant both.

         In its opinion filed on April 21, 2017, the panel affirmed the district court's order denying a request for a preliminary injunction seeking 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. Applying Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), the panel held that the City's compelled disclosure of commercial speech complied with the First Amendment because the information in the disclosure was reasonably related to a substantial governmental interest and was purely factual. Accordingly, the panel concluded that plaintiff had little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance was unconstitutional.

         Concurring in the denial of the petition for rehearing en banc, Judges W. Fletcher and Christen stated that their majority opinion held that under Zauderer, the City of Berkeley may compel "purely factual and controversial" speech by a retailer at the point of sale. The judges stated that the majority joined four sister circuits when it held that Zauderer permitted compelled commercial speech even in the absence of consumer deception. The judges stated that applying Zauderer to permit compelled commercial speech only when it prevents consumer deception, as suggested by the dissent, would result in a circuit split.

         Dissenting from the denial of rehearing en banc, Judge Wardlaw stated that the court should have taken this case en banc to clarify that Zauderer's rational basis standard applies only when ...


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