Former Rep. Steve Driehaus

A federal judge today pushed a defamation claim by a congressman who was defeated in the 2010 election to the 6th U.S. Circuit Court of Appeals, granting permission to the Susan B. Anthony List organization to try to argue that the opinions it expressed about former Democratic U.S. Rep. Steve Driehaus were protected.

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

Driehaus lost in 2010 to former U.S. Rep. Steve Chabot. During the campaign, the Democratic Party pulled its financial support for television ads when Driehaus fell behind.

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

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The focal point of the dispute is whether Obamacare funds abortions. Judge Timothy S. Black 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.”

SBA List today announced that the judge granted its motion to allow it to appeal the earlier ruling that denied a request for a summary judgment. The effect of that ruling was that there would have been a trial needed to determine if the politician was damaged by not being re-elected after an organization criticized him.

“We are very pleased with this latest action from the court and look forward to arguing our case in the Sixth Circuit Court of Appeals,” said Marjorie Dannenfelser president of the Susan B. Anthony List. “In his decision, Judge Black wrote ‘there is substantial ground for difference of opinion’ in our case, and he is certainly right.”

Black, who owes his lifetime appointment to Barack Obama, previously concluded that the pro-life organization might be guilty of defamation.

“It is our opinion, and we continue to maintain, first, that former Rep. Driehaus voted to allow for taxpayer funding of abortion when he cast his vote for Obamacare, and second, that we have the right to criticize that action under the First Amendment,” Dannenfelser said. “We now get to make our arguments on the constitutional questions at the heart of this case before the court of appeals. The fact that we have had to expend vast resources to get to this point is an outrage and we hope our fight will spare others from enduring similar baseless claims.

“We believe that the court of appeals will follow other courts in protecting our First Amendment rights and end this defamation case,” she said.

Bopp said, “Other courts have ruled that the speech of groups like the SBA List, who try to educate the public about the votes of their representatives, is not capable of being defamation. We are hopeful that the Sixth Circuit will reach the same decision.”

It was just days earlier when a complication arose in the case, because members of Congress essentially were making statements similar to what the SBA List was accused of making – and on the floor of the U.S. House.

Judge Timothy S. Black

The statements from a majority of the U.S. House of Representatives came in legislation that specifically would ban federal funds under Obamacare from being used for abortions.

Dannenfelser told WND that those comments are what subjected her organization to hundreds of thousands of dollars in legal fees defending itself against defamation claims.

Black, who cited Google as a source in one footnote of his ruling, had 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.”

However, House members feared  taxpayer funding of abortion under Obamacare enough that they introduced and passed the Protect Life Act to stop it.

The proposal specifies no funds authorized by Obamacare such as tax credits or cost-sharing reductions could be used to fund abortions or abortion coverage.

Dannenfelser said the problem is that many define ordinary health care as provided by Obamacare to include abortion.

The goals of the Susan B. Anthony List include electing to Congress pro-life candidates who oppose abortion, educating voters on issues, training activists and advocating passage of pro-life legislation.

Bopp pointed to the U.S. Supreme Court case N.Y. Times v. Sullivan,  in which the court established special rules for the type of speech that can be considered defamatory of public figures such as 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,” Bopp noted.

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

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.

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