WHEELING — The plaintiffs in a lawsuit against Gov. Jim Justice and Attorney General Patrick Morrisey challenging a recent legal advertising law that is set to take effect next month filed a motion for a preliminary injunction in the case.
"Both West Virginia and the United States currently struggle in the midst of a life-threatening pandemic and a continuing opioid crisis," the May 13 memorandum of law in support of the motion states. "While neither is likely a permanent condition, they remain emblematic of challenges ahead. Health problems place a premium on assuring that the people receive truthful and accurate information about their conditions, the drugs and medical devices available to treat them, and their legal rights when injured by those treatments so that they can make informed judgments about their care and about their remedies when treatments go wrong."
Plaintiffs' attorney Scott Segal with The Segal Law Firm wrote in the memo that lawyer advertising provides one way to convey that information—and is protected speech under the First Amendment. He wrote that the new advertising statute is aimed at regulating some lawyer advertising, but that no substantial government interest exists sufficient to justify the act’s restrictions and requirements.
The Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act was signed into law in March. In the case at hand, the plaintiffs allege it violates the protection the First Amendment affords commercial speech.
Segal writes that the act is a "welter of confusion" because it prohibits truthful, non-deceptive speech. He writes that it is unconstitutional because it is aimed solely at a form of legal advertising concerning drugs and medical devices, even though its title and definitional section appear to limit the act to medication issues.
Plaintiffs Alesha Bailey, Stephen P. New and Steven M. Recht allege the law violates the First Amendment and 14th Amendment. The complaint originally was filed May 4 in U.S. District Court for the Southern District of West Virginia, but computer error placed it in the wrong court. That case was voluntarily dismissed and refiled the same day in the Northern District.
The plaintiffs claim the act prohibits any legal advertisement that fails to identify itself as a paid advertisement, the sponsor of the advertisement, the lawyer or firm that will represent clients. It also prohibits ads billed as a "consumer medical alert," "health alert," "consumer alert," "public service health announcement," or "substantially similar phrase, the suit says.
The act violates the First Amendment by imposing prohibitions and requiring disclosures that are unrelated to any state interest in preventing consumer deception and by censoring truthful representations.
The plaintiffs are asking the court to declare the act invalid, issue an order permanently enjoining the defendants from enforcing the act and award all costs and fees incurred in the suit. They are represented by Segal and Robin Jean Davis of The Segal Law Firm; and Robert S. Peck of the Center for Constitutional Litigation. The case has been assigned to District Judge John Patrick Bailey.
U.S. District Court for the Northern District of West Virginia case number: 5:20-cv-00090
