“The court decided that our case was worth listening to because of a concern about a potential chill on speech,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, which filed the lawsuit. (See SBA List v. Steven Dreihaus et al.pdf)
The lawsuit was sparked by an Ohio State Election Commission ruling that there was probable cause that four billboards SBA List planned to put up in former Congressman Steven Driehaus’ district during his reelection campaign were “malicious lies” under Ohio’s False Statement Law. Fourteen other states have similar laws on the books.
The billboards accused Driehaus, who campaigned as a pro-life Democrat, of voting for tax-funded abortions when he voted for the Patient Protection and Affordable Care Act (PPACA).
Driehaus was one of the House Democrats who initially voted for the Stupak-Pitts Amendment, which would have blocked federal subsidies to any insurance plans in the Obamacare exchanges if they covered abortion. But the amendment was stripped out of the final version of the law.
Former Rep. Bart Stupak (D-Mich.) made a deal with President Obama in March 2010 that he and 63 pro-life Democrats – including Driehaus - who voted for his amendment would vote for final passage if Obama signed a non-binding executive order barring the use of federal funds for abortion.
As a result of the state commission’s ruling, the billboards never went up in Driehaus’ district, although Dannenfelser says that SBA List “doubled down” its efforts in other media.
After Driehaus lost his reelection bid, he sued the PAC, which had previously supported him, for defamation, blaming SBA List for his “loss of livelihood”. The case was dismissed last January after a two-year court battle.
“We don’t get into this [pro-life] cause for anything other than the truth. That’s why it’s so ironic we were sued for false speech,” Dannenfelser told CNSNews.com. “Who would do this? It’s not for the money or the fame, I can tell you that.”
In a recent statement to a blog at The Cincinnati Enquirer, Driehaus, now director of the U.S. Peace Corps in Swaziland, said of the lawsuit now before the Supreme Court: “The SBA List and other ‘pro-life’ groups premised their campaigns against me and other pro-life democrats on a lie – that the Affordable Care Act included federal funding of abortion. They knew that if Catholic voters believed that the ACA included abortion funding that those same voters would oppose the ACA and those Congressman who supported it.”
But Dannenfelser told CNSNews.com that SBA List has since been “vindicated” for correctly pointing out that a vote for Obamacare was indeed a vote for taxpayer-funded abortion.
“Now we know that taxpayer funding is in fact subsidizing abortion funding in the health care system. The [Obama] administration can’t in any way claim that it’s not. It can’t even come up with a list of health care providers in each state that doesn’t provide it.
"And so, yes, and even if they could come up with a list, we’re still subsidizing it by setting up a system that guarantees that abortion funding will be provided by all taxpayers who are paying for this new health care system.
“So yes, reality has vindicated our position, and the Catholic Church’s position, and the pro-life movement’s position. And so the arguability of our position is obvious, and the court sees that it’s obvious. The question now is whether in the future we’ll be free to make similar arguments or not without the threat of criminal sanctions and jail time.”
SBA List calls the Ohio law, which provides for the imposition of a $5,000 fine for each “lie” and possible jail time, “a blatantly unlawful regime under which bureaucrats are the supreme fact-checkers for every political campaign.”
Dannenfelser added that the state law “is like a guillotine” hanging over the head of anybody who dares to raise controversial issues like abortion during political campaigns. “Where it’s most damaging is when candidates or political parties use it to stifle the conversation and debate,” she told CNSNews.com.
Quoting the Supreme Court’s own ruling in Citizens United that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office,” the Institute for Justice and the Cato Institute argued in an amicus brief they filed on behaf of the SBA List that “complaint-driven statutes” like the Ohio law “are frequently used as strategic weapons to silence political speech in the final hours [of an election] when it is most valuable, precisely because they are so easy to invoke.” (See Institute for Justice, Cato amicus.pdf)
“We think that the fact that [the Supreme Court] decided to pick up our lawsuit at all is incredibly important in the political process because what it comes down to is: Who decides, who settles the argument between two opposing candidates? Should it be a politically appointed board created by law or should it be the voters?” Dannenfelser asked.