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Appeals court looks likely to reinstate limits on legal advertising in West Virginia

Though a federal judge found a state law unconstitutionally limits lawyers’ right to advertise, a Fourth Circuit panel emphasized the government's police authority and its ability to regulate issues related to public health.

RICHMOND, Va. (CN) — Judges on a federal appeals court hammered West Virginia lawyers Thursday morning in their attempt to keep a state law limiting attorney advertising from going into effect.  

Steven Recht is among the handful of Mountain State lawyers who believe the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act, passed in 2020, would hinder their ability to advertise services related to drug and medical device claims.

The law, among the first such legislation in the nation, is aimed at curbing deceptive advertising practices, but Recht and two co-plaintiffs argued in a May 2020 lawsuit in Wheeling federal court that disclosure requirements and a ban on terms like “recall” hindered his and other lawyers' First Amendment rights. 

U.S. District Judge John Preston Bailey, a George W. Bush appointee, agreed, writing in a May 2021 ruling that the law violated lawyers' free speech rights. The judge permanently blocked the state from enforcing the law.

The state appealed to the Richmond, Virginia-based Fourth Circuit, where Recht, represented by Center for Constitutional Litigation attorney Robert S. Peck, found a significantly less sympathetic audience Thursday. 

“The fundamental lesson here is medications and drug manufacturers are subject to a substantial amount of regulation and legislatures, in this public health area, are permitted significant latitude and leeway and that’s what we’re talking about here," said U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, as he questioned the contention that the language burden was enough to block the state law. 

“There’s plenty of medication ads and every one of those ads goes into those disclosures, sometimes in considerable detail,” Wilkinson continued. “No one has said those present a First Amendment problem.”

But Peck pointed to a specific part of the law: the ban on the use of the word “recall.” He argued such a limitation should easily crumble under strict scrutiny. 

“That kind of statement is protected under the First Amendment for the advertiser,” he said. “Even if you give incomplete information, it's fine - it has to be inherently misleading.”

He also argued the state or federal government is still be able to use the term.

“Everyone else can say there’s a recall, but not lawyers," Peck said.

West Virginia Solicitor General Lindsay See, meanwhile, argued the lower court erred right out of the gate when it chose to analyze the case using strict scrutiny, the highest standard of judicial review.

“We’re in the commercial speech context where the speech protection is lower,” she argued, noting the state's authority to dictate health-related information. “Giving disclosure improves the goal of public health, it doesn’t harm it."

Armed with a “long history of health and safety disclosure” precedent, See said, the state had the authority to limit such speech under its police powers. 

“These are targeted restrictions and fall within First Amendment guidelines,” she said. 

U.S. Circuit Judges James Wynn and Henry Floyd, both Barack Obama appointees, rounded out Thursday’s panel. The judges did not signal when they intended to rule. 

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Categories / Appeals, Business, Civil Rights, Media

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