Pro-Life or Pro-Libel: Former Dem Congressman Sues Susan B. Anthony List For “Loss of Livelihood” After Defeat

When former Rep. Steven Driehaus lost his seat in Ohio’s 1st Congressional District, he prepared more than a concession speech. He prepared a lawsuit. Driehaus blames his defeat on what he says were misrepresentations by the Susan B. Anthony List, a group that supports pro-life candidates for Congress.

The group targeted members who gave Obama the slim victory that passed the healthcare law — now opposed in court by a majority of states. The group maintained that a vote for the law was a pro-choose vote since the law did not include language sought by pro-life advocates.
Driehaus insists that the campaign against amount to lies and he has thus far avoided dismissal before U.S. District Court judge Timothy S. Black, an Obama appointee.

Critics have charged that Black should have recused himself because he was the former president and director of the Planned Parenthood Association of Cincinnati.

A defamation action would seem hard to maintain with the protection of opinion plus the higher standard for public officials and figures under New York Times v. Sullivan — requiring knowing falsehood or a reckless disregard of the truth. There is also the tenuous link between the loss of the election and this one issue, not to mention this one campaign on that issue.

As the filing below indicates, Driehaus previously sued to stop the use of billboards and other campaigning on the issue — a strategy that probably produced more visibility for the campaign. Here is the filing: Anthony-Reply2-10-27-10

Notably, in the prior litigation, Driehaus argued that there were a variety of false statements made by the organization:

In his now two pending OEC complaints (R.E 7-2 and 7-3), Congressman Driehaus alleges that SBA List made the following false statements:
• “Driehaus voted FOR taxpayer-funded abortion.” (R.E. 7-4, Copy of Plaintiff’s billboard-ready ad, which Plaintiff pre-released to the public and the media on or about September 28, 2010 (see R.E. 7-5));
• “[Driehaus] voted for a health care bill that includes taxpayer-funded abortion ….” (R.E. 7-6, Copy of Plaintiff’s August 2010 press release regarding its “Votes Have Consequences” project and bus tour);
• “It is a fact that that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion.” (R.E. 7-7, Statement issued by Plaintiff on October 7, 2010 concerning Congressman Driehaus’s OEC Complaint);
•“Rep. Driehaus ordered Lamar Companies not to put up the billboards until the matter was settled by the Ohio Elections Commission ….” (Id.)
Congressman Driehaus’s OEC complaints allege that SBA List made the foregoing false statements to promote his defeat and his opponent’s victory.

At an October 14, 2010 preliminary hearing, the OEC determined that probable cause existed that SBA List’s statements indeed violated O.R.C. §§ 3517.21(B)(9) and (10), and set the matter for a full review. R.E. 7-11 (Probable Cause Determination, Driehaus v. SBA List, Case Nos. 2010E-084, 2010E-096).

Yet, courts are highly reluctant to get into political campaigns and rhetoric. In New York Times v. Sullivan,” the Court emphasized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” To that end, the burden will be heavier for Driehaus.

Here is the new complaint.

What do you think of the lawsuit and the recusal issue?

Source: US News

25 thoughts on “Pro-Life or Pro-Libel: Former Dem Congressman Sues Susan B. Anthony List For “Loss of Livelihood” After Defeat”

  1. Does anyone know why the print is slanted on all of the replies to this story?
    (Slanted print, not slanted comments!)

  2. Yet, courts are highly reluctant to get into political campaigns and rhetoric.
    Al Gore doesn’t think so.

    As a non-lawyer, is rhetoric directly translated to mean ‘lie’ ?

  3. @Lemmy: I don’t think a near certainty is necessary, there was some “expected value” lost, some reputation or standing in the community or in a support group. Libel is about reputation, and how one values one’s reputation is not exactly a computational art.

    But, for the purposes of justification, look at it this way: If the group spent $20,000 on producing and publishing ads of this type, then we can argue that THEY believed the value of the lie was in excess of $20,000. Now if they believed that, and the politician was not elected, then they obviously received that “value,” and if they were responsible for libel, they have enjoyed that value by illegally damaging the reputation of the politician, and damages of perhaps three times their “investment” seem appropriate to me.

    We can calculate damages by the light they provide in their action.

  4. I think the Court enforcing some measure of truthfulness in campaigning is fine. Campaigning is nothing but high stakes advertising and we already have laws on the books requiring some minimum level of truthfulness. As that sinister master of mass deception proved, “The broad masses of a population are more amenable to the appeal of rhetoric than to any other force.” Hitler understood the power of the “Big Lie” skillfully told. Maybe we should, too — and guard against it.

  5. Doesn’t he have to show that his reelection was a near-certainty, but for the intervention of this group? Seems like just showing harm would be a pretty steep hill to climb in a case like this.

  6. @lottakatz: I agree with that logic regarding recusal; I think the point of recusal is if a judge would benefit one way or another from his decision. But judges firmly opposed to theft, rape, and murder still try shoplifters, rapists, and killers. They cannot be brainless.

    Plus, I don’t think this is about abortion, per se. It is about whether the organization knowingly and publicly lied about the politician in order to advance their own political agenda. Shall the judge recuse himself because he doesn’t like self-serving liars? Should he claim he hasn’t made up his mind on the morality of libel?

    Many judges are of the same political affiliation as plaintiffs; many judges will share the same opinion as a plaintiff on abortion, or any other issue. This is not cause for recusal. The only cause is if there is evidence the judge cannot be impartial on the question put to the court: Was the libel egregious enough to clear the higher hurdle for public officials, or not?

  7. These fools taking oath automatically disqualify themselves from office IMO. The only oath that matters is the one to the Constitution if they win and if they’re taking oaths now that are in contravention of the Constitution then they shouldn’t even be considered for office.

    Regarding recusal: there isn’t a nexus between the case at hand and any decision that could have a bearing on Planned Parenthood. The case could easily be one framed in the inverse and still have nothing to do with Planned Parenthood. Recusal is not warranted.

  8. A judge who has publicly taken a side in an issue should recuse himself when a case involving that issue comes before him.

    Does this mean that we favor unthinking judges? One hopes that there are no such creatures.

  9. This guy should suck it up. The left does the same thing. A congressional candidate around here was savaged by the DNC charging him with all kinds of things because he was pro-life.

    Politics is blood sport, if you dont want to get bloodied stay out of the arena.

  10. As much as it pains me to state it, given lying tactics like the “swiftboating” of Kerry, the courts are not equipped to be the arbiters of campaign rhetoric. Given the distortion and lies from venues like the right wing Pacs and faux news it is tempting, but the sword cuts both ways.

  11. I think that “uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks” does not include outright lies, and I think groups making a statement using any kind of paid media should have to meet a higher standard than in-person speech or private communication; in other words if they make a statement of fact that a judge deems could have reasonably been known to be false at the time, they should be held liable.

    I disagree with the mandates set forth in the health care law, but I do not believe there was anything in it that directly funded abortion.

  12. I forgot to comment on the recusal issue. I don’t see why the Judge’s former participation with Planned Parenthood should prevent him from being fair in this issue. If Clarence Thomas can do it, why can’t he?

  13. “What do you think of the lawsuit and the recusal issue?” Idiotic, but a good story line for Harry’s Law

  14. I agree that New York Times v. Sullivan will present a problem for the former Congressman, but I do like the idea of exposing the lies that come from these organizations.

Comments are closed.