Cellphone warnings and the Bill of Rights

There was big cellphone news out of San Francisco this week - and we're not talking about the Wednesday launch of Apple's latest must-have gadget, the iPhone 5. On Monday, the 9th U.S. Circuit Court of Appeals, based in San Francisco, blocked the implementation of that city's heavy-handed cellphone radiation warning law, pending the outcome of an industry challenge.

This isn't a case about medicine or Americans' love of constant connection. It's about whether the First Amendment protects businesses from engaging in nanny-state, government-ordered speech.

The ordinance, believed to be the first of its kind in the nation, would require cellphone dealers to tell customers the devices may expose them to levels of radio-frequency emissions the World Health Organization classifies as potentially cancer-causing. Businesses would be required to prominently display an informational poster advising customers that the energy emitted by mobile phones is "a possible carcinogen." Retailers also would have to provide customers with an information sheet and paste an informational sticker on all display literature, with all language scripted by the city.

The wireless industry has vehemently contested the assertions contained in the health advisory, noting the World Health Organization issued a report in June 2011 concluding that no adverse health effects had been established as being caused by mobile phone use.

In its brief, unpublished opinion, the 9th Circuit - which has jurisdiction over Nevada - reversed a lower-court judge who said the city could compel cellphone companies to distribute a "fact sheet" because its Board of Supervisors concluded "there is debate in the scientific community about the health effects of cellphones."

All such portable communication devices certainly do emit radio-frequency radiation, at cumulative levels that differ from device to device. Those levels will be higher for people who never put their phones down. Users should seek independent data on potential health effects.

But this case is primarily about "compelled speech." In a friend of the court brief, the Virginia-based Rutherford Institute argues that retailers have a constitutional right not to be forced to speak for the government. As anyone who has looked at a cigarette pack or advertisement in recent decades could have predicted, the court agreed only in part, holding government-compelled speech must be "purely factual and uncontroversial." The debate over the health risks posed by cellphones is far from settled.

"The very purpose of the First Amendment ... is to ensure that Americans are free to think, speak, write and worship as they please, not as the government dictates," notes John W. Whitehead, president of institute. "Well-meaning or not, the government's desire to communicate a disputed health alert about cellphone usage cannot be permitted to trump the First Amendment rights of San Franciscans to decide for themselves whether or not to advance such a message."

Those concerned about the possible health effects of electromagnetic radiation have plenty of ways to publicize their concerns. But if freedom of speech means anything, it certainly should forbid government from using the force of law to require anyone to speak out against his or her own interests and beliefs. San Francisco's ordinance should be struck down before it can spread here or anywhere else.