A federal judge has allowed a defamation lawsuit by former Rep. Steve Driehaus (D-OH) to move forward, on the grounds that an anti-abortion group’s ad campaign erroneously attacked him for supporting taxpayer-funded abortion with his vote for health care reform.
During the 2010 elections, the anti-abortion group the Susan B. Anthony List planned to run a billboard in Ohio targeting pro-life Dem Rep. Driehaus, who at the time was in the middle of an ultimately unsuccessful re-election campaign. “Shame on Steve Driehaus!” the billboard said. “Driehaus voted FOR taxpayer-funded abortion.”
At the time, Driehaus appealed to the Ohio Elections Commission because he said the billboard made “false claims.” The OEC eventually agreed to block the billboard because it may have violated state law by falsely claiming that health care reform provides federal funding for abortion — though the Commission never made a final ruling on whether the billboard actually violated the law. The SBA also ran a radio ad and flyer campaign with the same message.
Federal law allows people who receive federal subsidies for health care insurance to sign up for plans that cover abortion, but they are required to pay out-of-pocket for any abortion coverage. This provision of health care reform is in keeping with the Hyde Amendment, which has prohibited the Federal government from using taxpayer funds for abortions since 1976.
The SBA filed a lawsuit in response to the OEC ruling, arguing that Ohio law violates its First Amendment rights and that the billboards reflected their own interpretation of the law. Driehaus, in turn, filed a defamation counter-suit.
On Tuesday, U.S. District Judge Timothy Black threw out the SBA List’s lawsuit, saying that he had no jurisdiction in the case since the billboards never ran and the OEC never made a final ruling. Black also ruled that Driehaus can proceed with his suit, because, as Black wrote, “the express language of [the health care law] does not provide for tax-payer funded abortion. That is a fact, and it is clear on its face.”
“The Susan B. Anthony List was not being honest with voters,” Driehaus said of the ruling, according to the Cincinnati Enquirer . “I have fought this and will continue to fight this. It is not OK to spend thousands of dollars lying about elected officials.”
A lawyer for the Susan B. Anthony List said it will appeal because the ruling “chills free speech,” Politico reports.
“In order to be defamatory, the speech must obviously be false and cause injury, but it must also be made with actual malice,” said the SBA List’s attorney James Bopp. “That’s a legal term that means that the speaker either knew the speech was false and said it anyway, or the speaker recklessly disregarded finding out whether the speech was true or false. That plainly was not the case with the SBA List.”
Black wrote that the ad in question was written as though conveying facts and “does not signal that the speaker is imparting an opinion.”