Former Congressman’s Defamation Suit Against Pro-Life Group To Proceed

A somewhat surprising First Amendment decision arising out of the 2010 Elections.

Last December, Steve Driehaus, an Ohio Congressman who had been defeated in the 2010 elections filed a civil claim for defamation against the Susan B. Anthony List, a pro-life group who had spent money advertising against him, claiming that he had voted in favor of taxpayer funded abortions by voting in favor of the Affordable Care Act. Yesterday, a Federal Judge in Ohio ruled that Driehaus’s defamation claims could proceed to trial, a decision that is somewhat surprising given the high standard that public officials must meet in such cases:

A federal judge in Ohio said Monday that the Affordable Care Act does not provide for taxpayer funding for abortion. The statement was the cornerstone of the judge’s ruling to allow a defamation lawsuit brought against the Susan B. Anthony List by a former congressman to move forward.

Former Ohio Representative Steve Driehaus sued the SBA List for defamation of character during the 2010 election cycle, when the anti-abortion group ran an ad campaign on the premise that Driehaus had voted for a bill “that includes taxpayer funding for abortion,” in reference to Driehaus’s vote in favor of the ACA.

Driehaus, an anti-abortion Democrat, had initially filed a complaint with the Ohio Election Commission over a billboard that said he’d voted for “taxpayer funding for abortion.” The OEC found probable cause that the statement was false, and the SBA List filed a complaint in federal court that its ads were based on the group’s own interpretation of the law. The billboard was taken down but radio ads and flyers against Driehaus continued, according to court documents. Driehaus then countersued SBA List for defamation.

SBA List is ready to go to trial, stands by its statements and said the ruling “chills free speech.”

(…)

Driehaus lost the election but Judge Timothy Black stated in a decision that the defamation lawsuit could move forward because “the express language of the PPACA does not provide for taxpayer funded abortion. That is a fact and it is clear on its face.” SBA List’s request for summary judgment on the case was denied.

“It is a very big deal when a court says you can move forward against the ‘malice’ standard,” said Paul DeMarco, Driehaus’s attoney. “This ruling allows us to go ahead with the next phase — discovery — where we believe we will find the SBA List either ignored the truth or purposely did not seek it out when making these claims.”

The Court’s opinion, the only currently available copy of which I’ve been able to find here, is fairly short and essentially deals with two issues. First, there’s the question of whether or not the statements that the SBA List made are false:

To support his position that the statements are false, Mr. Driehaus relies on the fact that the PPACA does not include any provision that appropriates taxpayer funds to pay for abortions. (Doc. 53, Ex. 1 ¶ 14) (See also supra at Section III.A.2.a). Specifically, Mr. Driehaus states:

Attached at Tabs 2 and 3 of the Affidavit are two reports issued by the Congressional Research Service, the public policy research arm of Congress. These reports set forth in detail the funds appropriated by the PPACA. Abortion is never mentioned in either report. Again, this is because the PPACA does not include any provision that appropriates taxpayer funds to pay for abortions. SBA List said the PPACA includes taxpayer funding of abortions. That is and always has been false.”

(Id. at ¶ 16). Moreover, Ms. Buchanan’s affidavits fail to identify any provision in the PPACA that appropriates taxpayer funds to pay for abortions. (Doc. 34, Ex. 2 and 3).

It is irrelevant whether an assertion that the PPACA “allows for taxpayer funded abortion” could have been proven to be true (Doc. 34, Ex. 2 at ¶ 18), because the SBA List made the far different statement that the PPACA “includes taxpayer funding of abortion.” (Doc. 7, Ex. 1 at 7). This statement has a clear and definite meaning — that funding is in this law. In fact, SBA List’s statement is made even more apparent in Ms. Buchanan’s affidavit where she states that SBA List “inferred” from statements Mr. Driehaus made before the PPACA was passed that the congressman “understood abortion funding was contained in the PPACA.” (Doc. 34, Ex. 3 at ¶¶ 4 at 2). Ms. Buchanan claims that this “in part” caused Ms. Dannenfelser to say — six months later, “It is a fact that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion.” Id. However, as Mr. Driehaus points to in his affidavit, “I never stated that the health care reform bill included any provisions appropriating taxpayer funds to pay for abortions because, in fact, the bill did not contain any such provisions.” (Doc. 53, Ex. 1 at ¶ 16, at 6).

This part is something we already knew, of course. The argument that the PPACA, whatever else won might think about it, allowed taxpayer funding for abortions was perhaps the final battle that was fought in Congress over the law. When Bart Stupak, a pro-life Democrat who had been opposed to the bill because of the abortion issue, changed his vote to yes he was called a “baby-killer” on the House floor. Prior to that, the issue led Congressman Joe Wilson to shout out “You lie” during a Presidential Address to Congress [although this incident had nothing to do with abortion – DM]. And, of course, it was a big issue in the 2010 elections. It was also untrue. The PPACA did nothing to alter the Hyde Amendment, and the arguments of groups like the Susan B. Anthony List were utterly false.

However, when you’re dealing with a defamation claim made by a public official, that’s only part of the story. In New York Times v. Sullivan, the Supreme Court set forth an incredibly high standard for public officials pursuing a claim of libel or defamation related to their official conduct:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

In dealing with the SBA List’s Motion for Summary Judgment, which requires the Court to enter judgment for the moving party if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Judge Black ruled that there was still sufficient evidence to create a material fact as to whether or not the group acted with malice when it falsely claimed that Black had voted for a law that allows for taxpayer funded abortions:

As a public figure Mr. Driehaus must prove that SBA List made false statements with “actual malice” in order to prevail on his defamation claim. N. Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). SBA List argues that Mr. Driehaus could never make such a showing because the affidavits that he submitted show there was no actual malice. (Doc. 34, Ex. 1 at 26-27). The Court recognizes that this is not a simple analysis. Herbert v. Lando, 441 U.S. 153 at 170 (1979) (a plaintiff may “rarely be successful in proving awareness of a falsehood from the mouth of the defendant himself). However, “[f]alse speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 577 (6th Cir. 1991).

Mr. Driehaus can evidence “public figure” defamation by: (1) demonstrating that the alleged defamation was an outright fabrication, or (2) showing that SBA List purposefully avoided the truth. Reckless disregard for the truth “is likely to be found `where a story is fabricated by the defendant, [or] is the product of his imagination.” A&B-Abell Elevator Co., 641 N.E.2d at 1293 (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)). A showing of actual malice may also be premised on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements. Perk v. Reader’s Digest Ass’n, Inc., 931 F.2d 408, 411 (6th Cir. 1991). Mr. Driehaus may prove SBA List’s state of mind using circumstantial evidence, and motive may bear on the actual malice inquiry. Harte-Hanks Comm’ns v. Connaughton, 491 U.S. 657, 667 (1989). Objective circumstantial evidence can suffice to demonstrate actual malice and can even “override defendants’ protestations of good faith and honest belief that the report was true.” Moore v. Vislosky, 240 Fed.Appx. 457, 468 (3rd Cir. 2007).

The proper inquiry is whether SBA List acted with actual malice when it asserted that Mr. Driehaus voted for a bill that “includes taxpayer funding of abortion.” (Doc. 7, Ex. 1 at 7). The Court finds that there are issues of material fact regarding whether SBA List acted with actual malice based on the following undisputed facts: (1) after the Ohio Elections Commission complaint, SBA List continued to claim that “It is a fact that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion,” (Doc. 53, Ex. 1 at ¶¶ 8-9); (2) after the Ohio Elections Commission found probable cause that such a statement was false, the SBA List continued to make the false statements, and said that even if the Ohio Elections Commission were to prevent SBA List from putting up the particular billboards — in other words, even if the OEC finds the statement is false — “we will double down and make sure that our message floods his district. We’ve got radio ads going out all across his district”23; and (3) despite multiple requests to point to a provision in the PPACA that included taxpayer funding of abortions, SBA List refused to do so.

As I said when I first wrote about this case, there are several things about this type of defamation case that are disturbing. If there’s any one thing that the First Amendment was clearly intended to protect it is political speech, specifically speech regarding a candidate for election about an issue of public controversy. The idea that a candidate could turn around and file a civil action against a citizen, or in this case a group of citizens, for statements made in the heat of an election campaign is, to say the very least, extremely disturbing.

For one thing, the very act of filing a suit can have a chilling effect on other speech. If someone who wants to speak out against a candidates position on particular issue sees that doing so can lead to the possibility, or threat, of a lawsuit, they are less likely to speak out, regardless of whether or not they are right. For another, determining truth and falsehood in the context of a political argument isn’t always easy because it is so typically laden with exaggeration and hyperbole. Would Judge Black say, for example, that Paul Ryan has a cause of action against the people who say his budget plan ends Medicare, because that is clearly untrue?  There are plenty of exaggerations like this strewn throughout political debates, the idea that each one of them would suddenly become subject to a defamation suit is deeply concerning. Saying that a politician raped a child when one knows that to be false is one thing, saying that the plan they favor would have a certain policy impact strikes me as being quite another.

There’s a final issue in the case that Judge Black’s decision doesn’t really touch on, the question of whether or not Driehaus has suffered any actionable damages as a result of this alleged defamation. In his original complaint, Driehaus essentially claimed that the List’s false statements caused him to lose his “trade or occupation,” in other words his Congressional seat. It strikes me that it would be next to impossible for Driehaus to prove that it was the List’s billboard campaign that caused him to lose his seat. In fact, given how the election went nationwide it seems unlikely that he’d be unable prove that any one factor was responsible for his loss. Without actual damages, Driehaus shouldn’t be able to recover anything, although the jury could find that he suffered some unspecified damage to his reputation if the evidence supported it.

Hopefully, this decision will not stand.

Update: Here is a copy of the decision:

Driehaus v. SBL List Order On Motion for Summary Judgment

FILED UNDER: Campaign 2010, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jay Tea says:

    Here’s another thought: if he succeeds in his case, could that not set precedent that the PPACA can NOT be used to fund abortions? If so, the SBA might view their loss as in the service of a greater good. They get hurt financially, but they have a court ruling that ObamaCare can NOT fund abortions. They might even view the whole case as a no-lose proposition.

    J.

  2. Andre Kenji says:

    Just a correction: Wilson shouted “You lie” when Obama talked about coverage to undocumented immigrants, not about abortion.

  3. Loviatar says:

    Doug,

    you seem to conveniently skip over this whole section of the ruling.

    after the Ohio Elections Commission found probable cause that such a statement was false, the SBA List continued to make the false statements, and said that even if the Ohio Elections Commission were to prevent SBA List from putting up the particular billboards — in other words, even if the OEC finds the statement is false — “we will double down and make sure that our message floods his district. We’ve got radio ads going out all across his district”23;

    .

    This seems to me to be a classic case of malice.

  4. WR says:

    @Jay Tea: The act does not fund abortions, except in the fever dreams of Teatards, and they will never be convinced of anything that doesn’t match their hallucinations, so I don’t think how this is a victory for the woman haters of the Republican party.

  5. Jay Tea says:

    Not necessarily, Loviatar. Here’s a defense: “we don’t trust the objectivity of the OEC, and don’t recognize their authority in this area. Our experts says it’s true, and we believe them.”

    We’re dealing with True Believers here, and they can actually say stuff like that with a straight face.

    J.

  6. Loviatar says:

    @Jay Tea:

    Then these rulings would apply

    Reckless disregard for the truth “is likely to be found `where a story is fabricated by the defendant, [or] is the product of his imagination.” A&B-Abell Elevator Co., 641 N.E.2d at 1293 (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)). A showing of actual malice may also be premised on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements

  7. Mr. Prosser says:

    @Loviatar: Not only malice but coldly calculated, there is nothing said here “in the heat of an election campaign” as Doug puts it. “Heat” could be at a rally or a debate but not a well thought out political ad.

  8. Loviatar says:

    @Mr. Prosser:

    Agree Mr. P, this was no Joe Wilson.

    This was a calculated attack ad with a known falsity at the center of the ad,.

  9. hey norm says:

    Please – let’s be clear.
    No one I know is Anti-Life. Pro-Life sets up a false dichotomy and thus predjudices the discussion.
    Many people are Pro-Choice, and many are Anti-Choice. Ironically enough most of the people who are Ani-Choice also want the Government out of their lives. Go figure.

  10. EddieInCA says:

    The idea that a candidate could turn around and file a civil action against a citizen, or in this case a group of citizens, for statements obviously blatant and provable lies made in the heat of an election campaign is, to say the very least, extremely disturbing welcome.

    Fixed.

  11. If PPACA doesn’t alter the current version of the Hyde Amendment, which allows public abortion funding for rape and incest, and if PPACA supplies that funding, can it not be said that PPACA funds abortions?

  12. EddieInCA says:
  13. OzarkHillbilly says:

    @Loviatar:

    This seems to me to be a classic case of malice.

    While a part of me is uncomfortable with the law suit, another part of me says one should not be allowed to gain thru the repetition of lies. And seeing as money is now speech, and the fallout of that decision is that some people will now have more speech than others (wasn’t it always so?) we have even more of an interest in the truth.

  14. EddieInCA says:

    @OzarkHillbilly:

    I’m tired of the lies and distortions. Going back to the Clinton Impeachment – followed by the lies about GW Bush, followed by the lies about John Kerry, followed by the lies about Obama – groups have built entire operations based on lies about politicians.

    Not innuendo.
    Not rumors.
    Not theories.
    Lies.
    Flat out, bald faced, pants-on-fire lies.

    And, until now, there has been no recourse.

    If a public statement about a politcian by a group or private citizen be proven to be a lie, and defamatory or slanderous to that politician, I hope the politicians win those cases, regardless of party or clique.

  15. Loviatar says:

    @EddieInCA:

    Agree totally, particularly when those groups also state that they will continue to lie even when there statement is proven false.

    even if the OEC finds the statement is false — “we will double down and make sure that our message floods his district.

    .

    Former Congressman Driehaus needs to bankrupt these guys as a warning to the more money than morals crowd that now dominate the political landscape.

  16. michael reynolds says:

    Start allowing politicians to sue organizations that deliberately, maliciously lie, well, that’ll be the end of Fox News, won’t it?

    Ten years ago I’d have been with Doug on this. But we now have so-called news media whose actual, obvious purpose is to lie about political figures in order to rack up profits and acquire power for Mr. Murdoch. It is unarguable that Murdoch media will do anything — violate the law, the truth and common morality — to add to Mr. Murdoch’s power. In this country Fox is at the center, but many other organizations support and participate in the Fox mission.

    So reluctantly, and only because the situation has deteriorated so dramatically and caused such damage to American politics and to the country itself, I favor allowing pols to sue.

  17. Barb Hartwell says:

    I hope he wins, I for one am so sick of the lies or misleading information to win elections. I would hope everyone who approves all these messages as they say in ads will be held accountable for them.

  18. PD Shaw says:

    Without actual damages, Driehaus shouldn’t be able to recover anything, although the jury could find that he suffered some unspecified damage to his reputation if the evidence supported it.

    I can’t speak to Ohio law, but I think in my state defamation would be treated as an intentional tort in which damages are presumed, and if actual damages cannot be proven (which I agree looks highly unlikely here), then the damage award will be something like one dollar.

    I believe a number of courts have ruled that politicians do not have property interests in their office, comparable to a job. They serve at the leisure of an often fickle public, the notion that there are moneterizable benefits from the job is going to be problematic to acknowledge, whether it is true or not.

  19. Hey Norm says:

    This could have a chilling effect on the freedom to lie and slander with malicious intent. Let’s hope it doesn’t stand.

  20. PD Shaw says:

    The judge is hanging his hat on the difference between “allow” versus “includes” taxpayer funding of abortion. This is a pretty thin reed. Pro-lifers wanted government healthcare funding to be hermetically sealed off (the Stupack Amendment) and pro-choice advocates complained that this would ghettoize Constitutionally-protected rights. The Stupack Amendment didn’t pass, but Obama passed an executive order to that effect. This is such a murky area of debate, and the judge is utilizing a lawyerly approach to language that most people don’t use in their common expressions.

  21. Loviatar says:

    @PD Shaw:

    wow a judge using lawyerly language, who would a thunk.

  22. Hey Norm says:

    I’m a pro-lifer (and a pro-choicer) and I didnt want “…government healthcare funding to be hermetically sealed off…”. Because they are sealed off by the Hyde Amendment. Anti-Choicers may have wanted that because in spite of anti-government rhetoric they actually thrive on government intervention.

  23. physics geek says:

    So reluctantly, and only because the situation has deteriorated so dramatically and caused such damage to American politics and to the country itself, I favor allowing pols to sue.

    Awesome. I’m glad that GHWB can now sue Al Gore for the October Surprise crap.

  24. michael reynolds says:

    @physics geek:
    I’m sure he’d win. After all, it would find its way to the Supreme Court’s conservatives who deliberately violated their own stated adherence to state’s rights to impose Scalia’s preferred choice of president on a nation that had, it seems, voted for the other guy.

    Fortunately that all worked out just fine. If you ignore the torture, the botched wars and the shattered economy.

  25. John Cole says:

    If there’s any one thing that the First Amendment was clearly intended to protect it is political speech, specifically speech regarding a candidate for election about an issue of public controversy. The idea that a candidate could turn around and file a civil action against a citizen, or in this case a group of citizens, for statements made in the heat of an election campaign is, to say the very least, extremely disturbing.

    Why does it chill you so much to put a damper on people lying in campaigns?

    Oh, yeah. You support Republicans libertarians. Got it.

  26. @John Cole:

    When my “friends” on the left used to support the First Amendment they would say that the truth will always come out in the marketplace of ideas. They’d also say that the dangers of censorship are far greater than the dangers of untruthful speech.

    In fact, I am reminded of a quote from John Stuart Mill:

    We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.

    See, you may not get it, but I am pretty much a First Amendment absolutist. And this lawsuit is a bridge way, way too far for me.

  27. John Cole says:

    I’m a first amendment absolutist, as well. I think no one in government or elsewhere should have the power to silence people telling the truth. I am not sure how that applies to blatantly lying about people. Do I have a first amendment right to run around everywhere and yell DOUG MATACONIS RAPES CHILDREN?

  28. Of course you’re talking about a personal attack against a private individual, not a comment made on an issue of public concern in the middle of an election. When it comes to those matters, I prefer not to appoint judges and juries as the truth police

  29. EddieInCA says:

    @Doug Mataconis:

    So it’s okay to go around and say “John Kerry Rapes Children” or “GW Bush was a male prostitute” in the middle of a campaign?

    Really Doug? That’s your position? That it’s okay to slander and libel anyone running for public office? That the truth doesn’t matter during an election?

    Is that really your position?

    If it is, you have lost your moral compass.

  30. Loviaar says:

    @EddieInCA:

    If it is, you have lost your moral compass.

    What makes you think he ever had one to lose.

    He is a Republican don’t you know, know. No, no, I’m sorry, he is a Libertarian who votes exclusively Republican (I wanted to get that right because he always complains if you don’t).

  31. Jay Tea says:

    @EddieInCA: If it is, you have lost your moral compass.

    I thought we weren’t supposed to use the law to enforce our own moral standards…

    J.

  32. Jay Tea says:

    @Doug Mataconis: I’m not so sure you qualify as a private figure. I think I do, as I use a pseudonym online, but you use your real name and identify yourself on all of your public statements.

    I still think defaming you wrongly would be wrong, but I like what Alan Dershowitz says: the best answer to bad speech is more speech. And I think that’s your position, too.

    J.