Call This Man The Waaahmbulance

Doug Mataconis at Outside the Beltway points out a case in which a recently-defeated Congressman (Ohio Democrat Steve Driehaus) is suing a political advocacy group (in this case a pro-life group called the Susan B. Anthony List, hereinafter “SBAL”) for defamation:

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.”

My initial reaction is — boo frickin’ hoo for you, Congressman. If you’re going to play hard ball, expect fast pitches. If you’re going to run for elective office in the United States of America in the early twenty-first century (or indeed at any time to date in our nation’s history) you need to prepare for someone to deliberately and maliciously misrepresent your record and to fight fire with fire. You aren’t entitled to a livelihood in Congress, you have to earn it. “It’s the peoples’ seat,” remember?

The law would seem to support my initial reaction: New York Times v. Sullivan (1964) 376 U.S. 254, says that a public official will not prevail in such a suit based upon “…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.” So here’s his theory — given that functionally no one in Congress had actually read the healthcare reform bill before voting on it, it’s a reasonable bet that the SBAL had no real way to be certain whether the bill supported or did not support abortion, either, and that constitutes “reckless disregard of whether [the claim] was false or not.”

So what this means is that in politically-charged litigation (SBAL is already suing Driehaus; Driehaus’ defamation claim is part of a countersuit) both sides will get to argue about what is or is not in the healthcare reform bill for which Driehaus voted, thereby giving Driehaus’ political enemies a platform upon which to continue spreading their message. And if there is even a colorable argument that under the new law federal money does go to fund abortions, then he’s guaranteed to lose in court even if it turns out that, upon close examination, the law really does exclude funding for abortion.

Poorly played, soon-to-be-former Congressman Driehaus.

Whatever it was that the SBAL said about Driehaus, though, it’s quite likely that it made little difference at all in the election. 2010 was a bad year to be a Democrat and a worse one to be a Democrat from a non-secure district who voted for the healthcare reform bill for reasons having nothing whatsoever to do with abortion.

Driehaus has only himself to blame for not responding appropriately to campaign lies, he has only himself to blame for the voters growing dissatisfied with his performance in office and choosing to replace him, and he will have only himself to blame for the situation in which he will soon find himself — paying for lawyers to continue fighting over the last campaign in court.

One would think that he has better things to do with the remainder of his life than this. The evidence, however, suggests that the contrary is true.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. My first reaction to this story was almost identical to yours. But on reflection I began to wonder…I have some friends here in the country who moved from European countries as young adults. We've had some interesting conversations about the health reform bill, Sarah Palin, and the 2008 election. One of the things they've often observed is the extent to which the right has blatantly just made shit up in their role as the opposition. This goes beyond typical (and expected) spinning, into actual demonstrably false information. While you certainly could argue that the best defense against false arguments is a more vigorous defense of the truth, that becomes possible when both sides have semi-autonomous information delivery systems.I don't think Driehaus has a snowball's chance in hell with this suit, but part of me would not be too unhappy with a judicial precedent that puts some burden of factual accuracy in political advocacy.

Comments are closed.