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City officials in San Francisco think citizens have a right to know that cell phones may be giving them cancer. But a federal judge for the Northern District of California says that is about as likely as the existence of UFOs — and therefore he is blocking the city’s efforts to spread the word.
U.S. District Judge William Alsup recently dealt a blow to the city’s “right to know” ordinance, which forced cell phone retailers to distribute copies of what he called an “alarmist” publication (PDF) about carcinogenic effects of radio-frequency energy, as well as to display posters and stickers with similar messages. The judge ruled that he would not stand in the way of the fact sheet requirement itself, but found that the existing publication was misleading and would have to be edited to pass muster.
Judge Alsup grounded his ruling in First Amendment compelled speech doctrine, which prevents government officials from compelling someone to convey a certain message. While governments may order the publication of facts when reasonably related to an important objective — as the Second Circuit confirmed in 2009 when upheld a New York requirement forcing chain restaurants to post calorie counts on their menus — opinions may not be imposed in such a manner.
So where is the line between fact and opinion in this context? Alsup noted the paucity of scientific data to support the city’s position, which prompted his suggestion that UFOs are about as “possible” as the danger of excessive radiation. I see where he is coming from to some extent, given that officials were not able to cite more than a Federal Communications Commission finding that this radiation is potentially dangerous, and a World Health Organization classification of cell phone emissions as “possibly” carcinogenic.
However, this same warning message does not seem problematic at all under another umbrella of First Amendment law: the government speech doctrine (PDF). While the compelled speech doctrine prevents the government from forcing commercial entities to adopt its opinion, the government speech doctrine allows the government itself to spread that same viewpoint without restriction. Apparently, while this information can be too “alarmist” to hand out at a cell phone store, it would be perfectly fine if displayed on a government-funded billboard.
This doctrine has been controversial, which I can understand, because I do worry about giving the government unbridled control over the flow of information to the public. At the same time, I think the doctrine plays an important role here. I side with San Francisco on this one: people have the right to know about potential health concerns — especially in situations like this one, where the big industry allegedly behind the problem is going to go to extensive efforts to suppress any information that would hurt their bottom line.
I am as concerned as Judge Alsup about the government using its authority to mask opinion as fact. This is especially worrisome where technology is at issue, because that is something the average person probably doesn’t know enough about to evaluate independently. We certainly don’t want to let overzealous government officials, parading as experts, to create false panic. But at the end of the day, I just don’t like the idea of a judge getting to filter my information intake. I have the right to see everything out in the open so I can draw the line between fact and opinion for myself.
- Lauren Gregory
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