9th Circuit Denies En Banc Rehearing of CTIA v. Berkeley

A divided federal appeals court denied en banc rehearing of its April decision upholding a Berkeley, California, ordinance requiring retailers to inform prospective cellphone buyers that carrying their devices in certain ways can cause exposure to RF radiation exceeding federal limits (see 1704240041). Judges William Fletcher and Morgan Christen supported the Wednesday opinion, while Judges Michelle Friedland and Kim Wardlaw dissented. A majority of non-recused active judges failed to vote for rehearing. Fletcher and Christen said they didn’t want to create a circuit split with the D.C., 1st, 2nd and 6th circuits: Such splits “are generally to be avoided” and the other four courts “got it right.” Wardlaw said the panel majority applied the wrong legal standard when it cited 1985's Zauderer v. Office of Disciplinary Counsel. “We should have taken this case en banc to clarify that Zauderer’s rational basis standard applies only when the government compels speech to prevent consumer deception,” Wardlaw said. “By allowing the opinion to stand, we have condoned the panel majority’s deference to the City of Berkeley’s well-intentioned, but unconstitutional, incursion into First Amendment rights.” CTIA "will continue to assert that the First Amendment prohibits the government from forcing private companies to promote misleading and inaccurate opinions," a spokeswoman said. Berkeley didn't comment.