American Independent: SBA List to use House approval of anti-abortion bill as evidence in defamation suit

This article first appeared online at The American Independent on October 18, 2011.

SBA List to use House approval of anti-abortion bill as evidence in defamation suit
By Sofia Resnick

Despite general belief that the “Protect Life Act” —  which would bar tax-subsidized health-care plans from covering abortion services under the Affordable Care Act — has little chance of becoming federal law, the bill’s passage in the House last week may be used as fodder to help the anti-abortion-rights group Susan B. Anthony List fight a lawsuit.

For a year now, the SBA List has been embroiled in a legal battle with former Rep. Steve Driehaus (D-Ohio), who lost his seat in Ohio’s 1st District after the SBA List ran a radio-advertising campaign claiming that by voting for the Patient Protection and Affordable Care Act (PPACA) last year, Driehaus voted for “tax-payer funded” abortion. Driehaus, who refers to himself as “pro-life,” filed a complaint  against the SBA list in October 2010 on false-speech and defamation charges, which he later withdrew. The SBA List took the case to the federal level, by suing the congressman in a district court in Ohio, on free-speech grounds.

For the past few months, Driehaus and the SBA have been at loggerheads over the case. Dreihaus’ legal team has asserted that the SBA List’s ad-campaign message that Driehaus voted for taxpayer-funded abortion is false because he voted for the PPACA after President Obama issued an executive order prohibiting the use of taxpayer dollars to fund abortions. In turn, the SBA List’s legal team has argued that the Ohio statute the group was initially accused of violating is unconstitutional because it chills free speech.

But late last week, the SBA List publicly stated that the House vote is ”further evidence that Obama’s health care law would in fact allow for taxpayer funding of abortion” and the group’s treasurer, Frank Cannon, recently told Fox News.com that SBA will try to work the House’s vote into its legal arguments if they win an appeal to allow the case to proceed.

“For more than a year, SBA List has been fighting a lawsuit, brought by Congressman Driehaus claiming that we caused him ‘loss of livelihood’ by drawing attention to his vote for federal funding of abortion,” SBA List President Marjorie Dannenfelser said in the statement. “Given that 251 members of Congress voted in favor of the Protect Life Act, specifically in order to remove the PPACA’s federal funding of abortion that Steve Driehaus claims is non-existent, all of these members must thereby also be guilty of defamation.”

Attorneys from the lead law firm handling Driehaus’ case, Waite, Schneider, Bayless & Chesley, could not be reached for comment.

One of the attorneys on the case, Paul De Marco, told FoxNews.com in August that the SBA List can’t “hide behind the First Amendment” on this one and that Driehaus ”decided he wasn’t going to put up with lies that went to the heart of his core beliefs.”

Initially, Driehaus filed a complaint with the Ohio Elections Commission when the SBA List announced it would be erecting billboards accusing Driehaus of supporting taxpayer-funded abortions ahead of his reelection bid in November 2010. The billboards didn’t go up (though the radio ads did), and then Driehaus withdrew his complaint.

Currently, the federal case is stalled while the SBA List awaits a ruling on a motion it filed last month.

The SBA List previously touted support it received from the American Civil Liberties Union of Ohio, which authored a brief of amicus curiae last year defending SBA’s free-speech claim against Ohio Revised Code 3517.21(B), arguing that certain provisions in the statute — namely those that dictate what is “true” or “false” political speech are “unconstitutionally vague and overbroad and have the effect of chilling the Susan B. Anthony List’s right to freedom speech. … The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech and, in any event, the best answer for bad speech is more speech.”

The free-speech aspect of the case — which may soon be thrown out of the case depending on future ruling — is the only claim among several the SBA List has made against Driehaus that the ACLU agrees with, said Carrie L. Davis, staff counsel at ACLU Ohio.

Davis told The American Independent that the ACLU disagrees with the content of the the SBA List’s political ad campaign that Driehaus claims helped him lose the election.

“We believe that that the [Affordable Care Act] did not provide funding of abortion,” Davis said. In fact, she said, her organization’s position is that this type of disagreement should be decided in a defamation suit, not by a state statute.

A federal court this past August ruled in favor of Driehaus that the health care reform law does not provide taxpayer funding for abortion and rejected SBA List’s free-speech defense.

In its recent appeal, the SBA List’s legal team argued with the court’s ruling:

Allowing defamation claims in such circumstances will have an intolerable chilling effect on citizen-lobbying. It will not be only the SBA List and its desired speech that will be silenced. All advocacy organizations, including the SBA List’s idealogical opponents Planned Parenthood and Emily’s List, will likely be silenced too as defamation suits become candidates’ method of choice to discourage critical political speech. As such speech becomes more rare, the electorate, which counts on advocacy organizations to inform them about candidates’ true positions on the issues, will suffer.

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