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Judge Timothy S. Black

A federal judge who owes his lifetime appointment to Barack Obama today concluded that a pro-life organization whose leaders criticized a politician for supporting Obamacare for funding abortions just might be guilty of defamation – and possibly worthy of jail time.

The ruling comes from Judge Timothy S. Black in Cincinnati, who refused to dismiss a case brought by former Democratic U.S. Rep. Steve Driehaus against the Susan B. Anthony List organization, which had criticized the congressman’s vote for Obamacare.

The judge, who cited Google as a source in one footnote of his ruling, said, “Upon a careful review of both of the [Congressional Research Service] memoranda cited by the parties, this court fails to identify any affirmative statement that the PPACA [Obamacare] includes taxpayer funded abortion.”

Therefore, he ruled, a trial must be held to determine whether there was a defamation and whether there was malice in the statements by the SBA List, including those by its president, Marjorie Dannenfelser.

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The organization had issued news releases criticizing the reportedly pro-life Driehaus for voting for Obamacare and stated its objections were to the abortion funding. Driehaus sued, claiming he lost reputation and income because he was not re-elected following the criticism.

Driehaus was not re-elected in 2010, losing to former U.S. Congressman Steve Chabot. During the campaign, the Democratic Party pulled its financial support for television ads when Driehaus fell behind.

According to the SBA List, Driehaus filed a criminal complaint with the Ohio Elections Commission first, under a statute that carried a penalty of jail time. He later decided to advance the defamation case instead.

“Through this criminal statute, he’s even threatening me with jail time,” Dannenfelser said at the time.


Former Rep. Steve Driehaus

According to the organization, one of the statements about Driehaus also was in an ad, when the SBA List said, “Steve Driehaus doesn’t want you to know the truth…but you deserve to hear it. Steve Driehaus voted for taxpayer funding of abortion when he cast his vote for the health care reform bill.”

The focal point of the dispute is whether Obamacare funds abortions. The judge said he looked and couldn’t find any provision. But his ruling was anything but clear:

“Whether it is possible … that the PPACA would not prevent taxpayer funded abortion is entirely different from providing for ‘taxpayer funded abortion.’ The express language of the PPACA does not provide for taxpayer funded abortion,” he wrote.

“The SBA List’s speech was true, or at the very least it was its protected opinion about the meaning of Obamacare,” said James Bopp Jr., the counsel for SBA List. “Yet the court found that the SBA List’s speech about Driehaus might be defamatory and ordered a trial to determine whether it is or not.

“In a Supreme Court case called N.Y. Times v. Sullivan, the court established special rules for the type of speech that can be considered defamatory of public figures like elected officials. In order to be defamatory, the speech must obviously be false and cause injury, but it must also be made with actual malice,” the judge continued.

“That’s a legal term that means that the speaker either knew the speech was false and said it anyway, or the speaker recklessly disregarded finding out whether the speech was true or false. That plainly was not the case with the SBA List. They researched Obamacare themselves, and they also read the opinions of other groups that also concluded that Obamacare provided taxpayer funds for abortion services. Yet this court found, in spite of that, and in spite of the fact that their speech is true or at least their protected opinion, that their speech might be defamatory,” he said.

“This ruling means that anybody criticizing a candidate is in danger of a defamation claim,” he warned.

In fact, the Obama administration confirmed in July 2010, as reported by ABC News, that the president’s signature health care legislation funds abortions in cases of rape, incest or when the mother’s health is at risk.

Further, it now has ruled that all insurance carriers will be required to include coverage of the Plan B “morning-after” pill that can destroy the life of a fertilized egg by preventing the implantation of the developing embryo, Answers in Genesis pointed out.

Noted the prominent organization, “Despite the evidence that Plan B has a secondary mechanism as an abortifacient, the FDA allows Plan B packaging and patient information to claim that it does not cause abortion… The ‘truth’ of this claim depends on new government-approved definitions.”

Black, who was sworn in as a judge about the same time the Obama administration was telling ABC of the abortion funding procedures in Obamacare, said, “A showing of actual malice may also be premised on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements.”

“This court clearly cannot grant summary judgment where … the plaintiff is able to produce significant evidence that the statements are false.

“It is irrelevant whether an assertion that the PPACA ‘allows for taxpayer funded abortion’ could have been proven to be true … because the SBA List made the far different statement that the PPACA ‘includes taxpayer funding of abortion,’” he continued.

A statement from the SBA List noted that Driehaus’ complaints revolve around the loss of his “job” and “livelihood” because of its efforts to educate constituents about “his vote in favor of taxpayer funding of abortion in the health care bill.”

“No politician, bureaucracy, or court should have the power to silence the right of citizens to criticize elected officials,” said Dannenfelser. “Ohio’s False Statement Law allows canadidates like Steve Driehaus to silence any speech critical of them by simply filing a complaint with the Ohio Election Commission. Then, when the election is over, the candidates can dismiss their complaint so the law cannot be reviewed by the federal courts. An unelected commission should not have the ability to decide what is true and false speech, nor tell us what speech we can and cannot hear.”

The organization’s statements were in news releases it issued as well in a radio ad. It planned to put them on billboards, but did not do so because pending election commission complaint at the time.

Driehaus complaint against the SBA List was opposed by even the ACLU of Ohio, which, in a friend-of-the-court brief last year, said, “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and the best answer for bad speech is more speech.”

“Steve Driehaus’ constituents saw the truth about his pro-abortion record and made their voices heard on Election Day,” said Dannenfelser. “Their conclusion – that Steve Driehaus voted for a bill allowing taxpayer funding of abortion – is backed by every major pro-life organization in the country along with the United States Conference of Catholic Bishops, the Congressional Research Service and other nonpartisan organizations. The SBA List will continue to defend its actions, the voters and the right to criticize our elected officials.”

During the runup to the Obamacare vote, a commentary at LifeNews.com pointed out Driehaus was part of a small cadre of Democrats who resisted Obamacare based on its abortion language. Driehaus told Cincinnati.com he talked with Obama at the time, “I told him my concerns with regard to the abortion language.”

The commentary then noted Driehaus said, “We’ve changed [our votes],” when a deal was reached. The commentary noted there were no substantive changes in the bill that had been rejected earlier.

“SBA List claims that the taxpayer funded abortion statements are ‘not capable of defamatory meaning’ because they are not defamatory per se,” the judge wrote. But, “there is no rule stating that a public official alleging defamation may not rely on false statements that injure his reputation, expose him to public hatred or contempt, or affect him in his profession as a public servant.”

He also instructs Driehaus in what he would need to do to win at the next level.

“Driehaus can evidence ‘public figure’ defamation by: (1) demonstrating that the alleged defamation was an outright fabrication, or (2) show that SBA List purposefully avoided the truth. Reckless disregard for the truth ‘is likely to be found ‘where a story is fabricated by the defendant, [or] is the product of his imagination,” … A show of actual malice may also be [based] on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements,” the judge wrote.


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