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Lies in Political Ads Face 6th Circuit Review

CINCINNATI (CN) - The 6th Circuit began hearing oral arguments Wednesday on whether false or misleading statements in political ads can be considered defamatory.

The case was brought to the court by Steve Driehaus, a former congressman from the west side of Cincinnati. Driehaus is appealing a federal court ruling last month that struck down Ohio's laws regarding the spread of false information during an election.

The Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes (COAST) persuaded U.S. District Court Judge Timothy Black to keep political speech regarding a candidate's stance on "mainstream" issues out of the crosshairs of defamation lawsuits.

The case stemmed from the Anthony List's assertion that Driehaus voted in favor of taxpayer funded abortions when he supported Obamacare, a claim Driehaus's attorney said today was "mischaracterized."

Paul De Marco began his argument for a reversal by claiming Black's ruling establishes a new "categorical rule" that treats political candidates as "different from all other public figures" when it comes to defamation suits.

He argued that groups like the defendants "can be rendered liable-proof" as long as they ensure their attacks are based on "mainstream" issues.

De Marco then questioned how the court would define mainstream:

"Is it nationwide? Is it local? No one had heard of ISIS one year ago, and now everyone has opinions about it."

Circuit Judge Ronald Lee Gilman interrupted De Marco to ask whether the doctrine of "innocent construction" should be considered in this case, a point the attorney quickly rebuffed.

De Marco argued that innocent construction "has no place here" because the words in the ad campaign in question are not subject to more than one interpretation.

De Marco concluded his initial remarks by highlighting the fact that "abortion stands above all other issues in the west side of Cincinnati. Candidates here are judged by whether they toe a hard line on anti-abortion."

He then likened the effect of the ad on Driehaus's standing in the community to that of an individual being called a murderer.

Noted constitutional lawyer Michael Carvin spoke for the appellees in the case, and began by asserting that misleading statements and even lies about a political candidate's stances on issues are not actionable.

He then accused Driehaus of wanting "juries, not voters, to decide what is in Obamacare."

Carvin, a partner with the Washington, D.C. law firm Jones Day, was one of the lead attorneys arguing before the Florida Supreme Court on behalf of then-candidate George W. Bush during the 2000 election Florida recount controversy.

According to the conservative Federal Society for Law and Public Policy Studies, other highlights of his career include "limiting the Justice Department's ability to create 'majority-minority' districts" for the purpose of representation and voting, and "upholding Proposition 209's ban on racial preferences in California."

The main thrust of Carvin's argument today was that because Obamacare authorized taxpayer funded abortions - while not directly appropriating money for them - Driehaus voted in favor of the abortions by supporting Obamacare.

He passionately stated his case to the panel, saying that "we never accused Mr. Driehaus of being corrupt or incompetent. We attacked his policy." He also asserted that "in a democracy, we allow the voters [and not juries] to sort out the truth."

Circuit Judge Alice M. Batchelder questioned Carvin about the amount of truth needed in a political statement to prevent it from being defamatory.

"The smallest amount, but we are miles beyond [that] amount," the attorney replied.

Carvin also responded to De Marco's argument that determining whether a topic is mainstream could prove problematic, concluding that "as long as it is the kind of thing typically debated in elections, it is considered mainstream."

In his rebuttal, De Marco summed up his argument by clarifying the kind of damage endured by Driehaus.

He said, "If I accuse a vegetarian candidate of eating meat, I have ruined her reputation ... [and based on Black's ruling,] she could not bring a defamation claim even if the statement was knowingly false."

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