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Linking Candidates & Politics Isn’t Defamation

CINCINNATI (CN) - An anti-abortion advocacy group did not defame a congressman by tying his vote for Obamacare to supporting abortion, the 6th Circuit ruled Friday.

Reaching different grounds than those of the federal judge in Ohio it affirmed, the appeals court found that, "as a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation."

The lawsuit stemmed from the Susan B. Anthony List's public criticism in the lead up to the 2010 election of then-U.S. Rep. Steven Driehaus, claiming that the Ohio congressman's vote for Obamacare was a vote in support of "taxpayer-funded abortion."

Driehaus, an outspoken anti-abortion Democrat, lost his seat to a Republican challenger in that election. He filed a complaint with Ohio Elections Commission (OEC) for violations of the Unfair Political Campaign Activities statute.

Noting that President Barack Obama had issued an executive order preventing Obamacare funds from being used for abortion, Driehaus claimed that the SBA List's statements were false and defamatory.

SBA List's ensuing federal action against Driehaus and the OEC tackled the statute was an unconstitutional infringement on its Free Speech rights.

After considering the former congressman's appeal last year, a three-judge panel of the 6th Circuit unanimously found Thursday that lower court applied the wrong case law.

A plaintiff alleging defamation in Ohio must satisfy five separate requirements, but the appellate panel focused on only two: "that a false statement of fact was made ... and that the defendant acted with the requisite degree of fault in publishing the statement."

"Driehaus vocally opposed the Patient Protection and Affordable Care Act (PPACA) because of his concerns about federal funding for abortions but he then voted for it anyway despite the absence of his desired language ... in the final version," Judge Alice Batchelder wrote for the court. "The executive order adds language but is not part of the PPACA and does not alter the statutory text."

She concluded: "for SBA List to overcome Driehaus's defamation claim, it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations."

"Driehaus's own change of position demonstrates that they were," the complaint continues.

The panel likewise sidelined Driehaus' claim that SBA List acted with malice when it ran the radio and print ads in question.

"Even if Driehaus could prove that the PPACA does not include any taxpayer funding of abortion, thus making SBA List's statements actually or technically false, we can find no evidence to support Driehaus's claim that SBA List 'knew' the statements were false or 'entertained serious doubts as to their truth,'" Batchelder wrote.

Citing SBA List's mission of "ending all federal funding of abortion," the court said the group "would have no cause to criticize or campaign against either the PPACA or Driehaus if it did not believe that the PPACA included taxpayer funded abortions."

"Rather, one would expect SBA List to support an anti-abortion candidate, particularly one who had been as outspoken as Driehaus had been in opposing federal taxpayer funding of abortion," the ruling continues.

Judges Ronald Lee Gilman and Julia Smith Gibbons rounded out the panel.

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