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Judge Rules WA Law Banning Medical Marijuana Ads Unconstitutional

On January 10, Pierce County, WA Superior Court Judge Elizabeth Martin found Washington's ban on medical marijuana advertisements unconstitutional.

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Barry Donegan
Barry Donegan is a writer, musician, and pro-liberty political activist living in Nashville, TN. Donegan served as Director-at-Large of the Davidson County Republican Party from 2009-2011 and was the Middle Tennessee Regional Coordinator over 30 counties for Ron Paul's 2012 Presidential Campaign. Follow him at facebook.com/barry.donegan and twitter.com/barrydonegan

“I find the statute impermissibly overbroad as it chills even informational speech aimed solely at public education,” said Pierce County, WA Superior Court Judge Elizabeth Martin in a written decision explaining why she ruled a Washington state law banning medical marijuana advertisements unconstitutional. According to Courthouse News Service, the law in question banned doctors from making “any statement or reference, visual or otherwise, on the medical use of marijuana in any advertisement.”

The Yakima Herald-Republic notes that the decision came in response to a suit against the state filed on behalf of Dr. Scott Havsy, a local doctor and osteopath who was punished by the state for producing advertisements that pointed out some of the ailments that qualify an individual to seek treatment via medical marijuana and that included an image of a marijuana leaf. Back in July of 2012, Washington’s Department of Health slapped Dr. Havsy with an unprofessional conduct charge for which he was fined, barred from continuing to run his advertisements, and placed on probation.

Havsy argued through legal representation that his advertising content is protected commercial speech and that the ban unduly burdened patients seeking treatment, as they could not discover through advertising which doctors offer medical marijuana prescriptions. The Yakima Herald-Republic quoted Havsy’s lawyer Mark Olson as arguing, “The only restrictions that should be placed on professional advertising are to be sure the advertising is not false or misleading. 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.”

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Assistant Attorney General Joyce Roper represented the state and argued that the First Amendment does not protect advertisements concerning illegal products. Though marijuana is legal for both medical and recreational use in Washington, it is still subject to a federal ban.

Judge Martin disagreed with both attorneys’ contention that Havsy’s speech was merely commercial in nature, but said that it may instead be in the public’s interest, noting that many of the statements in his advertisements came from state-run websites. “It is difficult to understand, for example, how a link to the state’s own website and a recitation of the language of Chapter 59.51A on medical marijuana harms public health and safety,” said Martin according to Courthouse News Service, noting that some of the content in Havsy’s ads helped spread health information recognized by the state.

“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… 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,” said Judge Martin. She was also troubled by the fact that “even a published statement by a health care provider, purely neutral and informational in nature, potentially violates the blanket prohibitions of this statute.”

Judge Martin said that, while the state can not ban medical pot ads outright, it does have an interest in regulating them to ensure that they do not make false or misleading statements. She wrote, “I do not take lightly the import of this decision and expect that this ruling will not be the final word on the subject.” Judge Martin granted a stay on the penalties placed on Dr. Havsy.

Ben Swann took on the federal government’s mixed messages on medical marijuana in a recent Truth in Media expose. Watch in the embedded player, found below.

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