Steven M. Recht, et al. v. Patrick Morrisey, Attorney General of West Virginia

Applying a version of commercial-speech doctrine that heavily deferred to legislative choices, which ignoring other requirements in this Court’s decisions, the Fourth Circuit held a new West Virginia statute could ban certain words from use only by attorneys who advertise for drug and medical-device cases, while also imposing lengthy disclaimer requirements that prevent advertising in common media, crediting articles cited in a brief’s footnote as evidence without scrutinizing the articles. This case presents three questions:

1. Whether, in conflict with decisions in the Fifth, Sixth, and Eleventh Circuits, a State may redefine the meaning a federally defined and well-established term and then ban its use as inherently and actually misleading?

2. Whether, in conflict with decisions in the First, Second, Fifth, Tenth, and Eleventh Circuit, but consistent with the Sixth Circuit, a State may meet its burden to justify and show that a restriction on commercial speech advances its interests with reasonable fit without introducing evidence into the record, and rely on material cited in a footnote to a brief, including a lobbying booklet, all of which is of questionable validity and some of which ontradicts the State’s claims?