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;
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
Corn-Revere and Ronald G. London, Davis Wright Tremaine LLP,
Washington, D.C., for Amicus Curiae The Association of
National Advertisers, Inc.
Woods and Michael E. Wall, San Francisco, California; as and
for Amicus Curiae Natural Resources Defense Council.
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
Before: William A. Fletcher, Morgan B. Christen, and Michelle
T. Friedland, Circuit Judges.
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.
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.
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.
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 ...