Just over a week ago, the Sixth Circuit issued an opinion in Susan B. Anthony List v. Driehaus, the free speech saga that even made it to the Supreme Court last term. Although the case before the Supreme Court focused on SBA Lists’s standing to sue over an Ohio election law, the Sixth Circuit put an end to the other half of the lawsuit: Driehaus’s defamation counterclaim against SBA List.
The case began shortly before the Affordable Care Act was passed in 2010. Then-congressman Steve Driehaus denounced the bill for not preventing federal tax dollars from funding abortion, and alleged he would not vote for the bill unless it was amended to prohibit this. However, he voted for the ACA without the abortion funding prohibition, and the SBA List—an anti-abortion political group—published several ads criticizing Driehaus for voting for a bill that “include[d] taxpayer-funded abortion.” Prior to the 2010 midterm elections, Driehaus filed a complaint with the Ohio Elections Commission, alleging that SBA List violated Ohio election law by making false statements about him regarding his stance on the ACA and abortion. SBA List sued Driehaus and the OEC in federal court, alleging that the Ohio law violated its First Amendment free speech rights; Driehaus counterclaimed for defamation.
Before the Sixth Circuit was Driehaus’s appeal from SBA List’s summary judgment victory on the defamation counterclaim. (The other half of the lawsuit had already gone before SCOTUS over the standing issue.) In granting summary judgment to SBA List, the district court relied on recent Supreme Court case law to hold that, “as a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation.” The Sixth Circuit denied the district court’s categorical proclamation concerning the First Amendment, nonetheless affirming summary judgment for SBA List.
The Sixth Circuit proceeded to construe Ohio defamation law as applied to Driehaus’s claim. First, the court analyzed the “falsity” of SBA List’s statements, noting that the threshold for “truth” is quite low. The court pointed out that “Driehaus vocally opposed the [ACA] because of his concerns about federal funding for abortions but he then voted for it anyway despite the absence of his desired language.” Thus, his own change in position demonstrated that SBA List’s “statements had some truth, were substantially true, or were subject to differing interpretations,” which was enough to make them “not false” for purposes of the defamation claim. Turning to the “fault” prong of the claim, the court could find “no evidence to support Driehaus’s claim that SBA List ‘knew’ the statements were false”; rather, “SBA List did then, and does now, believe emphatically that the statements are true: that the [ACA] includes taxpayer funding for abortions.”
In affirming summary judgment for the SBA List, the Sixth Circuit not only put an end to this aspect of a multifaceted case, but also demonstrated the power of the well-known and age-old rule that the threshold for a politician’s success on a defamation claim is very high, particularly with regards to the standard for a defendant’s “truth” and “malice.”