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Recht v. Morrisey

Recht v. Morrisey

United States Court of Appeals for the Fourth Circuit

March 10, 2022, Argued; April 27, 2022, Decided

No. 21-1684

Opinion

 [*405]  WILKINSON, Circuit Judge:

West Virginia by statute regulates legal advertisements that solicit clients in litigation involving medications or medical devices. The plaintiffs in this case, two West Virginia attorneys and a client, contend that the statute violates the First Amendment by prohibiting attorneys from using certain terms or images in their advertisements and by requiring such advertisements to include certain disclosures. The district court agreed, granting summary judgment to the plaintiffs.

We now reverse the district court and uphold West Virginia's law. This statute lies right at the heart of West Virginia's police power. If West Virginia has one premier duty, it is to safeguard the health and safety of its citizens. ] And while the State certainly may not abridge basic constitutional protections in exercising that police power, the Supreme Court has long made clear that the regulation of commercial speech invokes lessened First Amendment concerns. In this area, we accord the State some, though not infinite, leeway in balancing [**3]  the important state interests against the individual rights involved.

The district court did not afford the State that leeway. It applied strict scrutiny to the statute's prohibitions, even though regulations of commercial speech have long received intermediate scrutiny. And while the district court correctly noted that an even more deferential standard applies to the statute's disclosure requirements, it gave the State little deference when it applied that standard. Applying the correct standards with appropriate deference, we hold that the statute does not violate the First Amendment, and that the case must therefore be dismissed.

In March 2020, West Virginia passed the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act. See W. Va. Code §§ 47-28-1 et seq. The Act is designed to regulate legal advertisements, i.e. the ads that attorneys use to solicit plaintiffs in litigation stemming from the use of medications or medical devices. It serves to ensure that such advertisements do not mislead or confuse the public.

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32 F.4th 398 *; 2022 U.S. App. LEXIS 11461 **

STEVEN M. RECHT; ALESHA BAILEY; STEPHEN P. NEW, Plaintiffs — Appellees, v. PATRICK MORRISEY, in his capacity as Attorney General of the State of West Virginia, Defendant — Appellant, and JIM JUSTICE, in his official capacity as Governor of West Virginia, Defendant. CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; ALLIANCE FOR PATIENT ACCESS; WEST VIRGINIA STATE MEDICAL ASSOCIATION, Amici Supporting Appellant.

Subsequent History: Rehearing denied by, En banc Recht v. Morrisey, 2022 U.S. App. LEXIS 14130 (4th Cir., May 24, 2022)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. (5:20-cv-00090-JPB). John Preston Bailey, District Judge.

Recht v. Morrisey, 2021 U.S. Dist. LEXIS 221127 (N.D. W. Va., May 13, 2021)

Disposition: REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.

CORE TERMS

advertisements, misleading, prohibitions, commercial speech, disclosure requirements, district court, medications, regulation, strict scrutiny, disclosure, consumer, manufacturer, uncontroversial, deception, patients, alert, medical device, discontinuing, advice, intermediate scrutiny, cases, government agency, restrictions, recalled, targets, viewers, governmental interest, mandatory disclosure, public service, The Act

Constitutional Law, Fundamental Freedoms, Freedom of Speech, Commercial Speech, Governments, Police Powers, Scope, Antitrust & Trade Law, Consumer Protection, False Advertising, State Regulation, Legal Ethics, Legal Services Marketing, Advertising, Commercial Speech, Deceptive & Unfair Trade Practices, Misleading Speech, Courts, Judicial Precedent, The Judiciary, Case or Controversy, Constitutionality of Legislation, Communications Law, Regulated Practices, Content Regulation, Legislation, Interpretation, Judicial & Legislative Restraints, Overbreadth & Vagueness of Legislation, Vagueness, State & Territorial Governments, Elections