Recht v. Morrisey

Decision Date27 April 2022
Docket Number21-1684
Citation32 F.4th 398
Parties 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.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant. Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Amicus Curiae. Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, PC, Washington, D.C., for Appellees. ON BRIEF: Patrick Morrisey, Attorney General, Curtis R.A. Capehart, Deputy Attorney General, Caleb A. Seckman, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant. Scott S. Segal, Robin Jean Davis, THE SEGAL LAW FIRM A LEGAL CORPORATION, Charleston, West Virginia, for Appellees. J. Mark Adkins, BOWLES RICE LLP, Charleston, West Virginia, for Amici The Alliance for Patient Access and West Virginia State Medical Association. Andrew R. Varcoe, Stephanie A. Maloney, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C.; J. Pierce Lamberson, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Amicus Chamber of Commerce of the United States of America.

Before WILKINSON and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge

Reversed and remanded with directions to dismiss by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Senior Judge Floyd joined.

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 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.

The statute applies to advertisements that constitute "a solicitation for legal services regarding the use of medications through television, radio, newspaper or other periodical, outdoor display, or other written, electronic, or recorded communications wherein the advertisement solicits clients or potential clients for legal services." Id. § 47-28-2(1). The statute regulates such advertisements in two ways: by prohibiting certain terms or images that may mislead the public, and by requiring certain disclosures to prevent confusion and protect public health.

The Act's prohibitions target attorney advertisements that give the false impression that they reflect medical or governmental advice. So the statute prohibits attorneys from "[p]resent[ing]" an advertisement as a "consumer medical alert," "health alert," "consumer alert," or "public service health announcement" so as to suggest "to a reasonable recipient that the advertisement is offering professional, medical, or government agency advice about pharmaceuticals or medical devices rather than legal services." Id. § 47-28-3(a)(2). Similarly, an advertisement may not display "the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency." Id. § 47-28-3(a)(3). And a third prohibition operates to make sure that attorney advertisements do not provide misleading information about the status of medications by preventing advertisements from using "the word ‘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." Id. § 47-28-3(a)(4).

The Act's disclosure requirements likewise aim to prevent attorney advertisements from confusing or misleading the audience. Several disclosure requirements, which plaintiffs do not challenge here, serve to make clear that attorney advertisements are just that—attorney advertisements. For instance, advertisements must state that they are "a paid advertisement for legal services," must identify their sponsor, and must indicate the identity of the attorney or law firm that would represent clients. Id. § 47-28-3(a)(1), (5), (6).

Two other disclosure requirements, which plaintiffs do challenge, ensure that attorney advertisements do not give patients the mistaken impression that they should suddenly stop using prescription drugs or medical devices. These requirements apply only to advertisements made "in connection with a prescription drug or medical device approved by the U.S. Food and Drug Administration." Id. § 47-28-3(b)(1), (b)(2). Such advertisements must include the warning: "Do not stop taking a prescribed medication without first consulting with your doctor. Discontinuing a prescribed medication without your doctor's advice can result in injury or death." Id. § 47-28-3(b)(1). They must also "disclose that the subject of the legal advertisement remains approved by the U.S. Food and Drug Administration, unless the product has been recalled or withdrawn." Id. § 47-28-3(b)(2).

Any person who "willfully and knowingly" violates the Act is deemed to have engaged in an unfair or deceptive act or practice in violation of the West Virginia Consumer Credit and Protection Act. Id. § 47-28-3(d).


In May 2020, two personal injury attorneys, Steven M. Recht and Stephen P. New, as well as one of New's clients, Alesha Bailey, filed suit against the Attorney General of West Virginia. They alleged that the Act was unconstitutional and sought injunctive and declaratory relief under 42 U.S.C. § 1983.

Following discovery, plaintiffs moved for summary judgment on the grounds that the Act violated the First Amendment. The district court granted that motion. It first determined that the Act imposed "a specific content-based burden on protected expression." J.A. 225. While West Virginia contended that strict scrutiny was inapplicable, the district court found this argument "to be foreclosed" in light of Barr v. American Ass'n of Political Consultants , ––– U.S. ––––, 140 S. Ct. 2335, 207 L.Ed.2d 784 (2020). J.A. 227 (also quoting Reed v. Town of Gilbert , 576 U.S. 155, 165, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) ("A law that is content based on its face is subject to strict scrutiny.")). It therefore decided to "apply strict scrutiny, but note[d] that even were the Court to apply intermediate scrutiny, the [Act's] restrictions cannot pass muster." J.A. 230.

Applying strict scrutiny, the district court enjoined the Act's recall provision because it thought a truthful description of a voluntary recall would violate the Act and because it concluded that such a description could not mislead consumers. It next found the Act's consumer alert provision unconstitutional, concluding that the "handful of investigations and reports" proffered by the State could not justify the provision—and that even if they could, the State had no authority to "censor under the First Amendment based on a ‘fear that people would make bad decisions if given truthful information.’ " J.A. 231 (quoting Sorrell v. IMS Health Inc. , 564 U.S. 552, 577, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) ). Though the district court did not specifically address the Act's logo provision, it permanently enjoined that provision as well. And it finally suggested that the State had failed to consider less restrictive alternatives, as required for a statute to survive strict scrutiny. J.A. 232.

As to the disclosure provisions, the district court noted that "compelled disclosure of commercial speech complies with the First Amendment if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual and uncontroversial." J.A. 233 (quoting CTIA - The Wireless Ass'n v. City of Berkeley , 928 F.3d 832, 845 (9th Cir. 2019) ). Nonetheless, it held that the disclosure provisions were invalid. The provision which states that a patient should not stop taking medications without a doctor's advice, qualified in the district court's view as "more professional advice and opinion"...

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