Former Rep. Steve Driehaus loses libel lawsuit against the Susan B. Anthony List

|The Volokh Conspiracy |


FILE - This March 29, 2010 file photo shows then-Ohio Rep. Steve Driehaus in Cincinnati. The Supreme Court appears to be highly skeptical of laws that try to police false statements during political campaigns, raising doubts about the viability of such laws in more than 15 states. The case began during the 2010 election when a national anti-abortion group, the Susan B. Anthony List, planned to put up billboards accusing then-Rep. Driehaus of supporting taxpayer-funded abortion because he voted for President Barack Obama's new health care law. Driehaus, a Democrat who opposes abortion, claimed the group's billboard ads distorted the truth and therefore violated the false speech law. (AP Photo/David Kohl, File)
Former Ohio Rep. Steve Driehaus in 2010. (David Kohl/AP)

Some readers may recall last year's Supreme Court decision in Susan B. Anthony List v. Driehaus, in which the U.S. Supreme Court allowed a challenge to the Ohio ban on false statements in election campaigns; that was followed by a district court decision holding that law unconstitutional.

But there's another half to the Driehaus / Susan B. Anthony List litigation: a simple libel lawsuit that he had brought against the List based on its allegedly false statements. Friday, a 6th Circuit panel held that the statements likely weren't false after all—and at least that there wasn't enough evidence that the defendants knew they were false or likely false—and therefore threw out Driehaus's lawsuit. Here is the court's reasoning, with the factual details (long but readable):

Leading up to the vote [on the Affordable Care Act], there had been significant debate over many aspects of the bill, including the possibility that it included taxpayer funding for abortion. Several anti-abortion advocates raised these concerns during that debate. In fact, then-congressman Steven Driehaus was one such advocate.

Driehaus was a first-term U.S. Representative from Ohio's 1st Congressional District and an anti-abortion Democrat. He became an outspoken advocate of the "no taxpayer funding for abortion in the PPACA" movement, gave numerous interviews, and appeared on national television to insist that he would not vote for the PPACA without inclusion of the Stupak-Pitts Amendment. The proposed Stupak-Pitts Amendment added language to the PPACA expressly forbidding the use of taxpayer funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion" except in cases of rape, incest, or danger to the life of the mother.

The bill was brought to a vote on March 21, 2010, without the Stupak-Pitts Amendment and, despite his earlier statements, Driehaus voted for the PPACA anyway. Because the PPACA, as voted on and passed, contained no language to restrict taxpayer funding of abortions, several other congressmen denounced it as including taxpayer funding for abortion.

Three days after the vote, President Barack Obama issued Executive Order 13535 (Mar. 24, 2010), in which he explained that "it is necessary to establish an adequate enforcement mechanism to ensure that [f]ederal funds are not used for abortion services, (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding [f]ederal statutory restriction that is commonly known as the Hyde Amendment." The parties dispute the meaning and effect of this Order, but acknowledge that executive orders do not amend statutes. Debate continues as to whether the PPACA includes federal funding for abortion. But back in 2010, Driehaus was a first-term Congressman who had very publicly opposed the PPACA on his belief that it included taxpayer funding for abortion and then voted for it anyway.

SBA List is an anti-abortion public-advocacy organization that also opposed the PPACA based on its own belief that the PPACA included taxpayer funding for abortion. See http://www.sba-list .org/ legislation/pro-life (last visited Feb. 27, 2015) (announcing its "two main legislative priorities [as] ending all federal funding of abortion and ending taxpayer funding to Planned Parenthood"). SBA List was not a political candidate; specifically, SBA List was not Driehaus's political opponent, nor has Driehaus asserted that SBA List supported or was in any way affiliated with his particular political opponent for his Ohio 1st Congressional District seat.

When Driehaus campaigned for re-election in 2010, SBA List publicly criticized him, among other congressmen, for his vote on the PPACA on the basis that in doing so he had voted for "taxpayer-funded abortion." Four particular statements by SBA List are pertinent here.

(1) In an August 9, 2010, press release, SBA List said that Driehaus "voted for a health care bill that includes taxpayer-funded abortion."

(2) On September 28, 2010, SBA List purchased billboard space to say "Driehaus voted FOR taxpayer-funded abortion," but when Driehaus threatened the billboard company with a lawsuit, it refused to post the ad.

(3) In an October 7, 2010, print advertisement, SBA List said: "It is a fact that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion."

(4) In a radio ad that began running on October 19, 2010, SBA List said: "Steve Driehaus voted for taxpayer funding of abortion when he cast his vote for the health care reform bill…. Driehaus voted for taxpayer funding of abortion."

Given that Driehaus had campaigned as, and won his seat as, an anti-abortion candidate, this was a problem for his re-election prospects and it angered him. Despite his earlier concerns with the PPACA, Driehaus no longer viewed a vote for the PPACA as a vote for taxpayer-funded abortion. Therefore, he considered SBA List's statements about his vote to be untrue….

[T]he district court [rejected the libel claim, reasoning] that: "[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation." …The district court's broad First Amendment proclamation is a misstatement of First Amendment defamation law and the grant of summary judgment based on that misstatement is clearly incorrect….

[Nonetheless, u]nder Ohio law, "it is for the court to decide as a matter of law whether certain statements alleged to be defamatory are actionable or not." … "To establish defamation, the plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement." …
[1.] Ohio courts "ha[ve] defined a false statement as a statement that sets forth matters which are not true or statements without grounds in truth or fact. A statement is not a 'false statement' if, even though it is misleading and fails to disclose all relevant facts, the statement has some truth in it. Moreover, a statement that is subject to different interpretations is not 'false.'" … "It is sufficient [in defending a defamation action] to show that the imputation is substantially true, or as it is often put, to justify the 'gist,' the 'sting,' or the substantial truth of the defamation." …

Driehaus argues that the statements were false because the PPACA contains no "appropriation" for funding elective abortion anywhere in its text and therefore does not "provide" federal funding for abortion. SBA List, on the other hand, points out that in its actual statements it used the word "includes" and never used the word "provides" or "appropriation." Based solely on Driehaus's construction of his claim and SBA List's response, the true substance of these statements appears to be subject to differing interpretations.

Moreover, given the debate prior to passage of the PPACA as to whether it includes taxpayer funding for abortion, the gist or sting of the statements appears to have at least some truth, to be substantially true, or to be subject to differing interpretations. Driehaus vocally opposed the PPACA because of his concerns about federal funding for abortions but he then voted for it anyway despite the absence of his desired language (the Stupak-Pitts Amendment) in the final version. The Executive Order adds language, but is not part of the PPACA and does not alter the statutory text. In fact, debate continues over the meaning and effect of the PPACA.

Due to the low threshold we have here for a finding of "truth," we need not resolve this debate at a higher level of specificity. For SBA List to overcome Driehaus's defamation claim, it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations. Driehaus's own change of position demonstrates that they were….

[2.] For a public official to prove fault, he must satisfy the actual-malice standard; he must prove that the defendant made the statement "with knowledge that it was false or with reckless disregard [for] whether it was false or not." …

Even if Driehaus could prove that the PPACA does not include any taxpayer funding of abortion, thus making SBA List's statements actually or technically false, we can find no evidence to support Driehaus's claim that SBA List "knew" the statements were false or "entertained serious doubts as to their truth."Rather, all of the evidence supports a finding that SBA List did then, and does now, believe emphatically that the statements are true: that the PPACA includes taxpayer funding for abortions. Moreover, given that SBA List's mission is "ending all federal funding of abortion," SBA List would have no cause to criticize or campaign against either the PPACA or Driehaus if it did not believe that the PPACA included taxpayer funded abortions. Rather, one would expect SBA List to support an anti-abortion candidate, particularly one who had been as outspoken as Driehaus had been in opposing federal taxpayer funding of abortion.

Driehaus cannot show any basis by which we could find actual malice. Consequently, SBA List is entitled to summary judgment on this defamation claim.