What Would George Washington Say?
I don’t know if Judges ever enter a replay booth, ala NFL officials, but in a recent decision from the federal court in the Southern District of Ohio, it seems like that’s what happened. In August 2011, Judge Tim Black issued a ruling denying summary judgment in a libel case filed by former Congressman Steve Driehaus. Driehaus, a pro-life Democrat elected to the conservative First District seat, sued an organization called Susan B. Anthony List for publishing statements to the effect that that Driehaus had voted in favor of legislation that would mandate tax payer funded abortions. The folks at Susan B. Anthony List filed a motion for summary judgment, arguing that even if they were wrong, the only way a public official can win a libel suit is to be accused of actual wrongdoing in office. Misstating someone’s voting record, according to SBAL, isn’t defamatory as a matter of law. In his August 2011 opinion, Judge Black rejected that argument, finding no case support for the notion that the only way to defame a public official was to accuse him of wrongdoing. But in an order issued on January 25 of this year, Judge Black has reconsidered, noting that in his August 2011 ruling, he failed to see the forest from the trees. The Judge noted that since his August 2011 opinion, the United States Supreme Court in United States v. Alvarez (the case throwing out the Stolen Valor Act) essentially recognized a First Amendment right to lie. And he determined that it does not harm an office holder’s reputation to falsely claim that he took a politically mainstream position, even if he, you know, didn’t. Attacks apparently go with the territory. I think this is the right call. If advocacy groups could be easily hauled into court to defend their comments, it most certainly would have a “chilling effect” – people would be less likely to speak out. But for those folks who make lots of money from producing those obnoxious attack ads, this decision is kind of a get out of jail free card.