There is, I think, no better example of the arrogance of power than recently defeated Ohio Congressman Steve Driehaus:
U.S. Rep. Steve Driehaus sued an anti-abortion group Friday for making statements that he says misled voters about his stance on abortion.
Driehaus said the Susan B. Anthony List lied about him in public statements and then sued him for trying to stop the group from posting misleading billboards.
The group claims Driehaus, who has campaigned as an anti-abortion candidate, supports taxpayer-funded abortions because he voted for the national health care law. Driehaus said the claim is false and that the law bars any federal funding of abortion.
“A lie is a lie,” Driehaus’ lawyers wrote in his federal defamation lawsuit. “The First Amendment is not and never has been an invitation to concoct falsehoods aimed at depriving a person of his livelihood.”
This wasn’t the first action that Driehaus had filed against the Susan B. Anthony List. Prior to the election, he filed a criminal complaint and other legal actions to prevent the group from putting up billboards in his district:
Even before he was kicked to the curb by Ohio voters, Rep. Steve Driehaus, D-Ohio, tried to silence the Alexandria-based Susan B. Anthony List for criticizing his vote for Obamacare after the Stupak amendment banning the use of federal funds for abortion was stripped out of the bill.
Citing an Ohio statute that makes it a crime to knowingly tell malicious lies about a public official, the formerly pro-life congressman filed a criminal complaint against the PAC on Oct. 6, insisting that the health care bill he voted for would not fund abortion.
“The four billboards we planned to put up in his district, but were never allowed to, said: ‘Shame on Driehaus. He voted for taxpayer funded abortion,” Marjorie Dannenfelser, president of the SBA List, told The Examiner.
However, many other pro-life groups besides the SBA List believe otherwise, including The National Right to Life Committee and Ohio Right to Life, whose executive director, Mike Gonidakis, said: “The health care bill that Rep. Steve Driehaus voted for is a death sentence to an untold number of innocent unborn babies and he knows it.”
Even the American Civil Liberties Union of Ohio, which came to the SBA List’s defense, couldn’t stomach Driehaus’ attempt at revenge, arguing that the Ohio law was unconstitutional because it forces the state to prosecute private individuals for criticizing public officials.”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 ACLU Ohio’s amicus brief noted.
Driehaus’s Complaint is actually a Counterclaim in a lawsuit that the Susan B. Anthony List filed against him for what they purported to be violations of their Constitutional rights during the election. Regardless of the merits, of the List’s lawsuit, though, it seems pretty clear to me that Driehaus doesn’t have a legal leg to stand on here. 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 this case, that would essentially require Driehaus to prove not only that the claims that the SBA List was making about him during the election were factually untrue, but that the List made them with the knowledge that they were false or with reckless disregard as to their truth.Given the fact that the nature of abortion coverage and funding under the Affordable Care Act seems to be pretty much a matter of personal interpretation and political spin, then it’s hard to see how Driehaus is even going to make the case that the statements the List made were false. Even if he can, proving actual malice is incredibly difficult.
Beyond the legal issues, though, there’s a certain amount of arrogance on Driehaus’s part here. It’s not even clear that the abortion funding issue was the reason he lost the election. The mere fact of filing this lawsuit demonstrates a sense of entitlement on his part that, I think, is probably a much better explanation for why he lost.
Here’s a copy of Driehaus’s Complaint:
Susan B Anthony List v. Steve Driehaus
H/T: Yid With Lid
