WHEELING – A federal judge has ruled West Virginia can’t enforce a law passed in 2020 restricting lawyer advertising.
On May 8, District Judge John Preston Bailey issued an order granting the plaintiff’s motion for summary judgment in a case filed by two attorneys and one of their clients against the state. It relates to the passage of the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Act, which took effect June 5, 2020.
“Lawyer advertising is protected speech,” Bailey writes in his order. “The act burdens protected speech. The act implicates the First Amendment.”
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With his order, Bailey permanently enjoins and prohibits the state from enforcing the law.
Last May, two attorneys and one of their clients sued Gov. Jim Justice and Attorney General Patrick Morrisey over the law that was then yet to go into effect. Alesha Bailey, Stephen P. New and Steven M. Recht alleged the law violates the First Amendment and 14th Amendment. Justice later was removed as a defendant.
The Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act was signed into law March 7, 2020, and was scheduled to go into effect June 5, according to the suit. The plaintiffs requested a preliminary injunction, which was granted, postponing the enactment of the law.
In his order, Bailey also says the restrictions provided by the act are content-based and speaker-based, which he says implicates strict scrutiny.
“While the state may impose reasonable restrictions to speech, in order to do so, the state must demonstrate a compelling state interest,” Bailey writes. “The state has failed to demonstrate a compelling state interest to support the validity of the Act. …
“The state has failed to demonstrate a substantial government interest sufficient to permit the infringement on the First Amendment.”
New said he was quite happy with Bailey’s order.
“I have the freedom to advertise for certain types of cases without this unconstitutional burden of having to put a minute and a half long qualifying statement in there or statements such as telling people to not stop following your doctor’s advice,” New told The West Virginia Record. “I believe West Virginia was the second or third state targeted by this particular group for passage of this law. This anti-lawsuit group (the American Tort Reform Association) is going state to state to state trying to get this unconstitutional law passed.
“It failed in the year or two I was president of the West Virginia Association for Justice, but it finally passed last year. I think Tennessee is the only other state to have passed it. But with this ruling, I’m hopeful this will stop the spread of this unconstitutional law into other states.”
A spokeswoman for ATRA said the group was disappointed in Bailey's order, saying the law addressed "deceptive and misleading lawyer advertising."
"The problem with these ads is that the over-the-top, doomsday ads claiming lethal effects of medications can scare consumers to the point that they might stop using critical, prescribed medications without consulting their health care providers," ATRA Public Affairs Manager Bailey Aragon told The Record. "These ads undermine the simple notion that physicians and health care providers – not TV trial lawyers with catchy jingles – should dispense medical advice. Prohibiting enforcement of this law means public health will continue to be negatively impacting by these dishonest ads."
Aragon also noted a 2019 FDA study that found 66 reports of adverse events following patients discontinuing their blood thinner medication (Pradaxa, Xarelto, Eliquis or Savaysa) after viewing a lawyer advertisement. The median patient age was 70, and 98 percent stopped medication use without consulting with their doctor. Thirty-three patients experienced a stroke, 24 experienced another serious injury, and seven people died.
The plaintiffs claimed the act would prohibit 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.
They say the act violated 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 claim, for example, the act prohibited the use of the term recall "when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency," when the vast majority of recalls occur without a government agency order or an agreement between the agency and the manufacturer.
Even the federal Food and Drug Administration defines recalls as voluntary actions taken by companies at any time to remove defective drug products from the market, according to the complaint.
They say the act also violated the 14th Amendment because it treats certain speakers differently than others without substantial justification, the complaint states.
Alesha Bailey, the plaintiff, claimed that by restricting and burdening legal advertising in West Virginia, the act infringed on her First Amendment right to receive truthful, non-misleading information about drugs and medical devices that have harmed people and might lead to litigation.
New and Recht claim the act infringed on their right to communicate truthful information about prescription drugs and medical devices that have harmed people. They claim they want to continue to use legal advertising to inform clients in need of legal representation as a result of harms suffered from prescription drugs or medical devices.
Morrisey’s office declined comment on Preston’s order, and plaintiff’s attorney Scott Segal declined comment as well.
The plaintiffs are being represented by Segal and Robin Jean Davis of The Segal Law Firm in Charleston as well as Robert S. Peck of the Center for Constitutional Litigation.
U.S. District Court for the Northern District of West Virginia case number: 5:20-cv-00090
