Wednesday, March 11, 2015
In its relatively brief opinion in Susan B. Anthony List v. Driehaus, the Sixth Circuit seemingly brought an end to the extensive litigation that arose from Stephen Dreihaus's 2010 campaign during which the Susan B. Anthony list, an anti-abortion organization wanted to put up a billboard criticizing Driehaus's vote in favor of "Obamacare," reading "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it. Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement in elections statute. SBA List then sued, seeking declaratory and injunctive relief, based on a First Amendment challenge to the statute. Recall that the United States Supreme Court unanimously reversed the Sixth Circuit's finding that federal courts had no Article III power to hear the case.
The First Amendment issues, including Dreihaus' counterclaim for defamation, were thus remanded. The federal district judge found the Ohio election provision violated the First Amendment. In considering the defamation claim, which the judge also foreclosed on the basis of the First Amendment, the Sixth Circuit found that although the district judge's "categorical proclamation" that “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation" was "a misstatement of First Amendment defamation law." However, the Sixth Circuit affirmed the district judge's grant of summary judgment on the basis that Driehaus could not satisfy the elements of the state law defamation tort. Specifically, Driehaus could not prove that the statements by SBA were false: "it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations" and Driehaus could not show any basis for a finding that the statements were made with actual malice.
Thus after extended litigation it now seems that there remain few, if any, bars to "falsehoods" in campaigns.