Commercial Speech Doctrine Needs an Overhaul

Cause of Action Institute joined with the Cato Institute and Competitive Enterprise Institute in filing an amicus brief urging the U.S. Supreme Court to grant the petition for certiorari in CTIA v. City of Berkeley.  The commercial speech case involves an ordinance in Berkeley, California requiring cell phone retailers to make the following statement to their customers:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.  If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.  Refer to the instructions in your phone or user manual for information about how to use your phone safely.[1]

The problem is that it is not entirely clear whether the harm described in this statement is actually true.  The current First Amendment commercial speech doctrine allows governments to compel commercial speech that is both “purely factual” and “uncontroversial.”[2]

The standard of review by which courts determine whether a particular compelled commercial statement meets this requirement can be the deciding factor in a case.  Take Berkeley, for example.  In this case, the record in the district court did “not offer[] any evidence that carrying a cell phone in a pocket is in fact unsafe.”[3]  That is, there is “no evidence in the record that the message conveyed by the ordinance is true.”[4]

Under any serious review of a governmental action impinging on a constitutional right—which compelled speech does—the absence of evidence to show that the government was indeed advancing a legitimate interest would be enough to strike down the ordinance.  But not in Berkeley.  The Ninth Circuit held that any “more than trivial” interest will suffice.[5]  No attention was paid to whether that interest, however trivial, is actually a legitimate one or if the compelled speech is advancing it.

The Supreme Court must step in

The commercial-speech doctrine is notoriously muddy.  Both Justice Thomas and Justice Ginsburg have recognized that the lower courts are in need of “guidance” on the “oft-recurring” and “important” subject of “state-mandated disclaimers.”[6]  And this guidance is necessary, the Justices wrote, because the Court has not “sufficiently clarified the nature and the quality of the evidence a State must present to show that the challenged legislation directly advances the governmental interest.”[7]

This lack of clarity has given rise to governments at various levels forcing commercial speakers to communicate disputed and politically charged statements, sometimes where the underlying factual issues are not resolved.  And lower courts are expanding government’s ability to commandeer commercial speaker’s message.  This contravenes the Constitution’s command that “Congress shall make no law” against free speech (incorporated against the states by the 14th Amendment).  This is precisely the type of behavior one would expect in a legal environment where the lines are not clear.

Commercial Speech Doctrine Must be Clear

The Supreme Court should grant the cert petition in Berkeley and ensure that moving forward when a government tries to compel commercial speech to carry the government’s message, the government must be able to, at a minimum, adduce evidence that (1) the purported harm actually exists, (2) mitigating that harm is a compelling government interest, (3) that the infringement on the speaker’s rights is narrowly tailored to advance that interest, and (4) that the compelled commercial speech actually does advance the interest.  We will continue to see doctrinal confusion and unnecessary compelled commercial speech absent that clarity, which should be avoided.

James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute.  You can follow him on Twitter @JamesValvo.

[1] Berkeley Municipal Code § 9.96.030(A).

[2] Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).

[3] CTIA–The Wireless Ass’n v. City of Berkeley, California, 854 F.3d 1105, 1125 (9th Cir. 2017) (Friedland, J., dissenting in part).

[4] Id.

[5] Id. at 1117.

[6] Borgner v. Florida Bd. of Dentistry, 537 U.S. 1080 (2002) (Thomas, J., joined by Ginsburg, J., dissenting from denial of certiorari).

[7] Id.

Cause of Action Institute Files Opening Brief in Appeal for Clinton Emails

Washington, DC – Cause of Action Institute (CoA Institute) and Judicial Watch, Inc. today filed a joint brief with the U.S. Court of Appeals for the District of Columbia arguing that email records from the private server of former Secretary of State Hillary Clinton likely exist and have yet to be recovered by the State Department in accordance with the Federal Records Act. This evidence was ignored in a previous decision by the lower court.

On December 5, 2014, twenty-two months after Sec. Clinton left office, paper copies of 30,490 work-related emails were delivered to the State Department. However, Secretary Clinton held back an additional 31,830 emails, which her attorneys declared to be personal records. None of those additional emails were reviewed by anyone at the State Department or the National Archives and Records Administration (NARA).

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Former Secretary of State Hillary Clinton did not preserve her emails in accordance with the law and the State Department should be held accountable. Evidence shows that the email Mrs. Clinton belatedly returned to the State Department is an incomplete set. Through its appeal, the Cause of Action Institute seeks to compel Secretary Kerry and NARA to recover all of Mrs. Clinton’s email records in accordance with the Federal Records Act.”

The brief shows the defendants have refused to initiate action through the Attorney General to recover a complete and accurate set of all federal records that Secretary Clinton unlawfully removed from State Department custody. The brief follows the release of a recent State Department Office of Inspector General (IG) report that also found Hillary Clinton failed to comply with the Federal Records Act. Consistent with the brief filed today, the IG report found that Mrs. Clinton failed to provide all of her emails to the State Department.

Cause of Action Institute filed its initial complaint on July 8, 2015 in federal court in Washington, D.C. The defendants in that suit argued the case was moot because the State Department received 55,000 pages of emails from Mrs. Clinton.  The district court agreed with defendants and dismissed the suit. Today’s filing presents compelling evidence that contradicts the lower court’s decision.  Cause of Action Institute’s case has been consolidated with a similar case by Judicial Watch.

Cause of Action Institute Sues to Stop White House Obstruction of the Freedom of Information Act

Prevent Obama administration and federal agencies from delaying production of documents that the White House considers politically sensitive

Washington, DC – Today, Cause of Action Institute (CoA Institute) filed a lawsuit against 11 federal agencies — plus the Office of the White House Counsel (OWHC) and White House Counsel Neil Eggleston — to end the Obama administration’s practice of delaying government responses to Freedom of Information Act (FOIA) requests that the administration considers politically sensitive or embarrassing.

When members of the public request documents from federal agencies, FOIA requires that agencies process the request in accordance with specific deadlines.  Agencies must search for responsive documents and produce them unless the information they contain falls into a specific statutory exception.

The Obama administration, however, has interfered in the FOIA process in ways that violate the statute and hinder its purpose of federal transparency.  Although President Obama came into office with promises of transparency, his administration’s actions have not matched such rhetoric.  Under a non-public 2009 memorandum, federal agencies must consult with OWHC before producing documents that involve “White House equities.”

In practice, White House consultations occur whenever documents are politically sensitive or potentially embarrassing to the administration or otherwise newsworthy. The result of these consultations is that agency FOIA productions are delayed precisely when prompt disclosure is most important.

The consultation process can take months or even years.  No statute authorizes FOIA consultations between agencies and the White House in such circumstances, and delaying FOIA productions based on potential political consequences violates both the letter and the spirit of FOIA.

CoA Institute has filed many FOIA requests that are now being delayed by White House equities consultations with OWHC.  In its lawsuit, CoA Institute asks that the United States District Court for the District of Columbia to release FOIA requests from unnecessary delays caused by the Obama administration’s unwarranted review policy.

Read the complaint here.

Exhibits 1-30

Exhibits 31-65

 

Docket 9357 LabMD Initial Decision

Docket 9357 LabMD Initial Decison – electronic version pursuant to FTC Rule 3 51(c)(2)

Cause of Action’s Amicus Brief in O’Keefe v. Chisholm

Cause of Action filed an Amicus brief in support of Eric O’Keefe and the Wisconsin Club For Growth on February 20, 2015.

Read the brief below:

Related Documents: IRS Oversight

Proposed Rulemaking FOIA Request and Lawsuit

First Amended Complaint (February 20, 2014)

IRS Complaint (February 5, 2013) Lawsuit concerning proposed rulemaking

FOIA Request to IRS regarding communications with outside groups regarding the Notice of Proposed Rule Making

IRS FOIA Request (December 24, 2013)

Comment on IRS’s Guidance for Tax-Exempt Social Welfare Organizations

February 26, 2014 IRS Comment

IQA Petition, Meeting Request, and Request for Extension on Rulemaking all filed February 5, 2014

IRS Information Quality Act Petition – seeking clarification on how the IRS determined the burdens that nonprofits would face under the proposed rule

Request for Meeting with OIRA Administrator

Comment Extension Request – asking the IRS to extend the comment period for the proposed rulemaking until after the IRS produces in full documents in response to CoA’s FOIA request

Related Documents: Operation Choke Point

United States District Court for the District of Columbia

Community Financial Services Association of America v. FDIC

Amicus Brief written for the LIBRE Initiative (September 27, 2014)

Other Resources

U.S. House of Representatives Committee on Oversight and Government Reform

Federal Deposit Insurance Corporation’s Involvement in “Operation Choke Point” (December 8, 2014)

 The Department of Justice’s “Operation Choke Point”: Illegally Choking Off Legitimate Businesses?  (May 29, 2014)