The city that begat the Free Speech Movement is getting sued for violating free speech.
In May, Berkeley, California, passed an ordinance requiring purveyors of cell phones to post a notice warning customers that keeping phones in their pockets or bras may expose them to more radio frequency radiation than FCC guidelines recommend—despite the fact that there’s no demonstrated health risk from this form of radiation. CTIA-The Wireless Association, an industry group,soon brought the city to court , claiming Berkeley’s requirement violates the First Amendment rights of retailers by forcing businesses to make statements contrary to their own opinions.
The notice comprises a relatively mild and unexciting part of the Berkeley municipal code , which among other things mandates up to 30 days in jail for possession of a nuclear weapon, requires medical marijuana dispensaries to give away weed to low-income patients, and has outlawed all Styrofoam containers since 1990. It probably won’t much affect some citizens—for example, these people protesting the removal of invasive trees , since they weren’t wearing clothes anyway. (Full disclosure: I’m a resident of Berkeley, I use a cell phone, and I wear clothes in public.)
Robert Post, dean of Yale Law School, along with Lawrence Lessig of Harvard Law School, are representing Berkeley pro bono. Lessig was unavailable for comment at the time of publication. His office voicemail cheerfully told me, “Hi this is Lawrence Lessig. I’m sorry, I don’t believe in phones. If you want to reach me, it’s best to do so by email.”
But I did reach Post. Calling from his cell phone, he explained that First Amendment claims have also been made against the mandatory posting of fast food calorie counts in New York and a recent GMO labeling law in Vermont.
“They always cite cases that say you can’t compel someone to say the Pledge of Allegiance,” Post says. But courts typically draw a distinction, he says, between speech expressing personal beliefs and so-called “commercial speech” intended to help a business make a profit—the latter does not enjoy the same level of protection. Post harbors a longstanding interest in these kinds of First Amendment cases, which he thinks are “way out of control.” Labeling decisions are legislative ones, he says, not constitutional ones.
Berkeley’s new mandate may or may not be a harbinger of more prominent warnings. Other city ordinances, which were radical at the time they were passed, presaged broader cultural shifts—for example, bans on smoking in public or provision of benefits to same-sex partners. Conversely, many cities still allow the use of Styrofoam take-out containers 25 years after Berkeley enacted the ban.
Though the cell phone ordinance makes no mention of specific health risks—indeed—it merely encourages perusal of existing FCC standards—some of the momentum to pass the initiative came from a group called the California Brain Cancer Initiative, which is adamant that cell phone use increases the risk of cancer despite the fact that scientists have yet to firmly establish any such connection.
Cell phones emit radiation. So do radio station transmitters, light bulbs, and X-ray machines. But not all radiation is emitted equally. Indeed, physicists draw a line between “ionizing radiation,” which is vigorous enough to tear electrons off atoms, and non-ionizing radiation, which is not. Ionizing radiation—like cosmic rays and x-rays—can do rapid and irreversible damage to cells in living things.
But cell phones emit radio-frequency radiation, which falls squarely in the nonionizing category. The FCC points out that the only demonstrated harm from radio frequency radiation happens if you concentrate enough of it on your body to start heating your tissues—an effect far beyond a cell phone’s power, no matter what garment or undergarment you use to hold the device.
Indeed, the World Health Organization, based on data from 25,000 studies, has concluded that “that current evidence does not confirm the existence of any health consequences from exposure to low level electromagnetic fields.”
The WHO does point out there are some areas that would benefit from further research. Its cancer research group, the International Agency for Research on Cancer (IARC), classifies radio frequency radiation as a category 2B agent—that is, “possibly a carcinogen.” Dr. Jonathan Samet, director of the University of Southern California Institute for Global Health and the chair of the IARC report on radio frequency radiation, says that one analysis of data in an IARC study showed a possible association between cell phone use and brain cancer, but whether the link appeared depended on how the analysis was carried out. “The word is ‘possible,’ ” Samet says. “I think that saying what that means is a little challenging.”
So does Samet use a cell phone? “Of course,” he said, “I have not altered my behavior with my cell phone since the 2B classification.”
That classification puts cell phone radiation in with coffee, ginko biloba, and aloe vera extract—all things that are ubiquitous in Berkeley and are all possible carcinogens .