SAN FRANCISCO — High-profile appellate advocates faced off Tuesday in the U.S. Court of Appeals for the Ninth Circuit in a fight over how and when local governments can force businesses to make statements about the safety of their products. Arguing on behalf of a wireless industry group, Gibson, Dunn & Crutcher’s Theodore Olson asked a Ninth Circuit panel to block a Berkeley law requiring retailers to warn customers against keeping cellphones too close to their bodies. Olson claims that the compelled commercial speech violates the First Amendment and, if allowed to stand, would spur the creation of a patchwork of local rules.
Meanwhile, Berkeley’s lawyer, Harvard Law School professor Lawrence Lessig, argued that the city ordinance only calls for retailers to make factual statements echoing language the Federal Communications Commission already requires manufacturers to include in cellphone use manuals.
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