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

In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), this Court held that, although government regulation of commercial speech is generally subject to intermediate scrutiny, a narrow exception allowing for less rigorous review applies when the government seeks to combat misleading commercial speech by requiring the disclosure of “purely factual and uncontroversial information” that is “reasonably related to the State’s interest in preventing deception of consumers.” On remand from this Court for further consideration under National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), the Ninth Circuit—in conflict with decisions of at least three other circuits (the Third, Fifth, and Seventh)—reaffirmed its prior holdings that rewrote Zauderer. It held that the government may compel commercial speech, absent any alleged deceptive communication, as long as the mandated message is “reasonably related to” any “more than trivial” governmental interest and “literally true.” The Court of Appeals thus again upheld an ordinance forcing cell-phone retailers to deliver a misleading and controversial message to customers. The questions presented are:

1. Whether Zauderer’s reduced scrutiny of compelled commercial speech applies beyond the need to prevent consumer deception.

2. 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.