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Was Congressman Steve Driehaus defamed by an anti-abortion group?

December 6, 2010

On Friday, The Cincinnati Enquirer reported that Congressman Steve Driehaus sued an anti-abortion group Friday for making statements and posting misleading billboards saying he supported tax-payer funded abortions by voting for the national health care law.  Driehaus said the claims of the Susan B. Anthony List were false and the new health care bill bars government funded abortions.” http://news.cincinnati.com/fdcp/?1291650951296?

“A lie is a lie, ” wrote Driehaus’s lawyers.

But is a “lie” defamation? 

Defamation refers to false statements of fact that harm another’s reputation.  United States Supreme Court Justice  and Cincinnatian Potter Stewart wrote that the essence of a defamation claim is the right to protect one’s good name. According to Stewart, this tort “reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.” Libel  generally refers to written defamation while slander refers to oral defamation.

Thus, a lie may be a lie.  But to be defamation, it must be  a lie  that effects the way one is seen by his or her neighbors, community, or profession, as the Second Restatement of Torts explains.  

In Ohio, there are lies and then “damn” lies, that is lies of such a devastating nature, that it is presumed that the falsehood  so reflected  upon a person’s character in a manner that it will cause him or her to be ridiculed, hated, held in contempt or in a manner that will injure him or her in his trade or profession so damages are presumed.   Becker v. Toulmin (1956) 165 Ohio St, 549, 556, 138 N.E. 2d 391, 396-397.  Thus, if doctor is called a butcher or a public officer of accepting bribes, this is libel “per se” and the case will go forward to the jury without a need to prove damages. 

Was the claim that the anti-abortion Dreiahus supported taxpayer-funded abortions “defamation,” a libel or a libel per se?  If one knows the West Side of town which is staunchly anti-abortion, it could be.

However,  Steve Driehaus is a  Congressman who exercises substantial public power, and hence, for the case to go forward, he must also meet a daunting standard of showing with clear and convincing clarity that the defamatory falsehood was published with knowledge of its falsehood or recklessly.  New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). 

Can Driehaus make this high hurdle?  Perhaps,  as it does appear that the present  health bill provides absolutely no funding for abortions, and partly as a result of Mr. Driehaus’ refusal to vote in for it unless the bill banned federal funding.

What happens next? This will be up to the courts to decide.  But the case will likely be decided long after the Congressman leaves office.  A case of this constitutional magntitude could take months or even years.   

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