CCL's Robert S. Peck argued yesterday that a new statute prohibiting certain language and symbols and adding extensive disclaimers in lawyer advertising violated the First Amendment before the U.S. District Court for the Northern District of West Virginia. The rare in-person argument occurred in the case of Recht v. Justice.

     The statute, passed earlier this year and due to go into effect this month, was aimed at lawyers seeking clients for prescription drug and medical device products liability cases. The law prohibited the use of the word "recall" in all but virtually non-existent circumstances, prohibited the use of words like "consumer alert," and the use of government agency logos when it might leave the impression of affiliation with a government agency. It also required that the advertisements, which included attorney websites, advise potential clients that they should consult a physician before discontinuing any medication, as well as a host of other disclaimers that would take up more than 40 percent of a 30-second television advertisement.

     Peck argued that a preliminary injunction should issue because the extensive disclosure requirements and categorical prohibitions on certain words or images that were true and verifiable violated the First Amendment. West Virginia Deputy Attorney General Curtis Capehart represented the defendants, Governor Jim Justice and Attorney General Patrick Morrisey, and argued that Peck's challenge was solely a facial challenge, not both facial and as-applied, and therefore had a heavier burden to overcome. 

     Judge John Preston Bailey took the matter under advisement.