It is unconstitutional for the state of Washington to ban the use of advertising by physicians to promote services pertaining to medical marijuana. This is the verdict of a Pierce County Superior Court judge, who claims a law imposed by the state that explicitly forbids the medical community from advertising medical marijuana is a breach of the First Amendment.
Judge Elizabeth Martin filed the ruling last week, concluding that while the state may have legal basis to regulate advertising used by medical professionals, prohibiting it altogether violates freedom of speech. “I find the statute impermissibly overbroad as it chills even informational speech aimed solely at public education,” Martin wrote in her decision.
The verdict stems from a case in which the Department of Health penalized Dr. Scott Havsy, a well-established osteopath, for marketing himself as a liberal distributor of medical marijuana recommendations. His attorney, Mark Olsen, argued the state ban on advertising prevents patients from connecting with qualified physicians.
“The only restrictions that should be placed on professional advertising are to be sure the advertising is not false or misleading,” said Olson. “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.”
The opposition came in with all guns blazing, arguing that free speech was not protected in the case of advertisements promoting “an illegal product or activity.” Assistant Attorney General Joyce Roper said: “Dr. Havsy cannot claim constitutionally protected commercial speech in his advertisement for the medical use of marijuana because marijuana is illegal under federal law and the medical use of marijuana remains illegal under state law.”
The judge sided with the defense, ruling the state’s advertising restrictions to be “far more extensive than necessary” and a hindrance to patients interested in exploring treatment with medical marijuana from being made aware “as to whether that provider is even available or willing to perform the required medical exam for the certificate of use.”
Judge Martin admits that Washington is in the midst of a “grand national experiment” with regard to legal marijuana, and does not expect her ruling to be the “final word on the subject.”
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