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CTIA - The Wireless Association v. City of Berkeley, California, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-15141 · judgment April 21, 2017

GVR'd · June 28, 2018

Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), the Court held that, although government regulation of commercial speech is generally subject to intermediate scrutiny, a narrow and limited exception allowing for less rigorous review applies when the government seeks to combat misleading commercial speech by requiring (as an alternative to restricting speech) the disclosure of “purely factual and uncontroversial information” that is not “unduly burdensome” and is “reasonably related to the State’s interest in preventing deception of consumers.” The Ninth Circuit in this case—in conflict with Zauderer and decisions of at least three other circuits (the Third, Fifth, and Seventh)—materially changed and dramatically expanded Zauderer. The court held that government may compel commercial speech, absent any alleged false or deceptive communication, as long as the mandated message is “reasonably related to” any “more than trivial” governmental interest and “literally true.” The Court thus upheld an ordinance forcing cell-phone retailers to deliver a misleading and controversial message to customers. The questions presented are:

Whether Zauderer’s reduced scrutiny of compelled commercial speech applies beyond the need to prevent consumer deception.
When Zauderer applies, whether it is sufficient that the compelled speech be: (a) factually accurate— even if controversial and, when read as a whole, potentially misleading; and (b) merely reasonably related to any non-“trivial” governmental interest.

Counsel of record

For petitioner
Theodore B. Olson
Gibson, Dunn & Crutcher LLP

For respondent
Lawrence Lessig

Case

Conference history
Distributed for 3 conferences

Amicus briefs
8 cert-stage

Proceedings

Jul 30 2018
JUDGMENT ISSUED.
Jun 28 2018
Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of National Institute of Family and Life Advocates v. Becerra, 585 U. S. ____ (2018).
Jun 27 2018
DISTRIBUTED for Conference of 6/27/2018.
Apr 18 2018
DISTRIBUTED for Conference of 5/10/2018.
Apr 17 2018
Reply of petitioner CTIA - The Wireless Association filed.
Apr 02 2018
Brief of respondents City of Berkeley, et al. in opposition filed.
Feb 27 2018
Motion to extend the time to file a response is granted and the time is extended to and including April 2, 2018.
Feb 27 2018
Brief amici curiae of Institute for Justice and National Federation of Independent Business filed.
Feb 23 2018
Brief amicus curiae of Washington Legal Foundation filed.
Feb 23 2018
Motion to extend the time to file a response from March 1, 2018 to March 31, 2018, submitted to The Clerk.
Feb 22 2018
Brief amicus curiae of Association of National Advertisers, Inc. filed.
Feb 08 2018
Brief amici curiae of Retail Litigation Center, Inc., et al. filed.
Feb 08 2018
Brief amicus curiae of The Rutherford Institute filed.
Feb 08 2018
Brief amicus curiae of The National Association of Manufacturers filed.
Feb 06 2018
Brief amicus curiae of Pacific Legal Foundation filed.
Jan 30 2018
Response Requested. (Due March 1, 2018)
Jan 30 2018
Brief amici curiae of The Cato Institute, Competitive Enterprise Institute, and Cause of Action Institute filed.
Jan 24 2018
DISTRIBUTED for Conference of 2/16/2018.
Jan 19 2018
Waiver of right of respondent City of Berkeley to respond filed.
Jan 18 2018
Blanket Consent filed by Respondents, City of Berkeley, et al..
Jan 17 2018
Blanket Consent filed by Petitioner, CTIA - The Wireless Association.
Jan 09 2018
Petition for a writ of certiorari filed. (Response due February 8, 2018)