S.F. Says It Deserves Some Respect from Ninth Circuit

City lawyer Vince Chhabria says panel was too quick to shoot down an ordinance requiring cellphone retailers to warn of potential cancer risks.

Scott Graham

2012-10-22 05:48:00 PM

SAN FRANCISCO — The city of San Francisco isn't going away quietly on the issue of cellphone radiation.

Following a lengthy oral argument in which one of the judges posited that the case could be ticketed for the Supreme Court, city lawyers were stunned when the U.S. Court of Appeals for the Ninth Circuit issued a two-page unpublished ruling in September wiping out their case. On Friday, the city filed a combative petition for rehearing, imploring the full court "to give this important constitutional issue the treatment it deserves, to give San Francisco's democratically elected policymakers the respect they deserve, and to provide jurisdictions in the circuit with the guidance they deserve."

The San Francisco Board of Supervisors made waves around the country when it adopted its "Right to Know" ordinance in 2010. The law would require cellphone retailers to display literature declaring that cellphones emit radio-frequency energy, which the World Health Organization has listed as "a possible carcinogen," and encouraging users to limit their exposure.

The cellphone industry sought a preliminary injunction, but U.S. District Judge William Alsup denied it after persuading the city to tone down its literature somewhat.

The hourlong appellate argument Aug. 9 came with some fanfare. The court televised the proceedings, and Senior Judge Mary Schroeder acknowledged the intense amicus curiae interest in the case. Judge Consuelo Callahan asked San Francisco deputy city attorney Vince Chhabria how he thought the U.S. Supreme Court would assess the case if it got there. Alsup even wrote to the court to express his perspective on the arguments.

Much of the argument was focused on whether to stay the ordinance until trial this fall. "How are you harmed if we continue the stay?" federal Judge Edward Korman of New York, sitting by designation, asked Chhabria. "Even if you're right, you're not going to get cancer from using [a cellphone] for two or three months."

But on Sept. 10 the three-judge panel voted effectively not only to stay the ordinance, but to shoot it down altogether. The recommendations for reducing exposure to radio frequency energy "could prove to be interpreted by consumers as expressing San Francisco's opinion that using cellphones is dangerous," the court concluded in its unsigned opinion. The city cannot compel retailers to put out information that is not "purely factual and uncontroversial," the court added.

In his petition for rehearing, Chhabria called this unpublished ruling "the worst of both worlds."

"On the one hand, because the panel did not issue a published opinion, the case provides no true guidance for district courts and jurisdictions within the circuit, despite a very real need for guidance in this area of First Amendment law," he wrote. "On the other hand, given the high-profile nature of the case, jurisdictions within the circuit that seek to impose health-related disclosure requirements ... will be forced to heed the fate that befell San Francisco." Otherwise, he wrote, they could face attorney fee awards such as San Francisco is potentially facing in this case.

Chhabria argues that if the Ninth Circuit's formulation of the law is correct, then other government-imposed warnings — like California's Proposition 65 on suspected toxic substances and the surgeon general's on pregnant mothers' use of alcohol — are unconstitutional as well.

"Simply put, in a high-profile constitutional challenge to a first-of-its kind ordinance duly enacted by the people's representatives, and where other jurisdictions are awaiting the outcome of the case before deciding whether and how to act in the same policy arena, it is not appropriate to treat the case in the manner the panel did here," Chhabria wrote.

Andrew McBride, a Wiley Rein partner who argued the case for the wireless industry trade association opposing San Francisco, did not immediately return a call seeking comment.