TACOMA — A state judge has found that a Washington law prohibiting doctors from mentioning medical marijuana in advertisements is unconstitutional.
Pierce County Superior Court Judge Elizabeth Martin ruled Friday that the law violates a medical professional’s First Amendment right to free speech, the News Tribune reported.
“I find the statute impermissibly overbroad as it chills even informational speech aimed solely at public education,” Martin said in a written decision. The state might have an interest in regulating such advertising, but banning it outright is unacceptable, Martin said.
The ruling came in a case brought by a Pierce County physician, Scott Havsy. He sued the state last year after the Department of Health sanctioned him for advertising his willingness to authorize a patient’s use of medical marijuana. The sanctions are on hold while the case is being decided.
Havsy’s lawyer, Mark Olson of Everett, argued in pleadings that the state’s ban on medical marijuana advertisements hindered a patient’s ability to find doctors to authorize its use.
“The only restrictions that should be placed on professional advertising are to be sure the advertising is not false or misleading,” Olson argued. “Other than that, when the government restricts advertising by professionals, it places a chilling effect on the free flow of information, especially on the Internet.”
Assistant attorney general Joyce Roper, representing the state, had argued in pleadings that free-speech protections do not extend to advertisements for an illegal product or activity.
Roper argued that Havsy cannot claim constitutional protection for his medical pot advertisement because marijuana remains illegal under federal law.
Martin sided with Havsy and Olson.
“I find that the restriction set forth in the statute at issue is far more extensive than necessary as it bars any advertisement in any form, regardless of the message, format, context, etc.,” Martin said in her ruling. “The result of this statute is that the public cannot be informed by any health care provider, including Dr. Havsy, as to whether that provider is even available or willing to perform the required medical exam for the certificate of use.”
Martin said she recognizes “the state of Washington and its citizens have embarked on what the state has characterized as a ‘grand national experiment”’ regarding the legalization of marijuana and recognizes that the existing medical marijuana laws are not entirely reconciled with the recreational use of marijuana legalized by Initiative 502.
“I do not take lightly the import of this decision and expect that this ruling will not be the final word on the subject,” Martin said.
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