Anthony List v. Driehaus
| Citation | 779 F.3d 628 |
| Decision Date | 06 March 2015 |
| Docket Number | No. 13–3238.,13–3238. |
| Parties | Susan B. ANTHONY LIST, Plaintiff–Appellee, v. Steven DRIEHAUS, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED:Paul M. De Marco, Markovits, Stock & DeMarco, LLC, Cincinnati, OH, for Appellant. Michael A. Carvin, Jones Day, Washington, D.C., for Appellee. ON BRIEF:Paul M. De Marco, Markovits, Stock & DeMarco, LLC, Cincinnati, Ohio, Katherine Demarest Dorsey & Whitney, Anchorage, Alaska, for Appellant. Michael A. Carvin, Jacob M. Roth, Jones Day, Washington, D.C., David R. Langdon, Joshua B. Bolinger, Langdon Law LLC, West Chester, OH, Robert A. Destro, Arlington, VA, for Appellee. Steven H. Aden, Alliance Defending Freedom, Washington, D.C., for Amici Curiae.
Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.
The counterclaim plaintiff, Steven Driehaus, appeals the district court's grant of summary judgment to counterclaim defendant Susan B. Anthony List (hereinafter “SBA List”) on Driehaus's defamation claim. We affirm.
On March 21, 2010, the United States House of Representatives voted on the Patient Protection and Affordable Care Act, Pub.L. 111–148, 124 Stat. 119 (2010) (hereinafter “PPACA”), and it passed by a vote of 219 to 212. Leading up to the vote, there had been significant debate over many aspects of the bill, including the possibility that it included taxpayer funding for abortion. Several anti-abortion advocates raised these concerns during that debate. In fact, then-congressman Steven Driehaus was one such advocate.
Driehaus was a first-term U.S. Representative from Ohio's 1st Congressional District and an anti-abortion Democrat. He became an outspoken advocate of the “no taxpayer funding for abortion in the PPACA” movement, gave numerous interviews, and appeared on national television to insist that he would not vote for the PPACA without inclusion of the Stupak–Pitts Amendment. The proposed Stupak–Pitts Amendment added language to the PPACA expressly forbidding the use of taxpayer funds “to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion” except in cases of rape, incest, or danger to the life of the mother. Cong. Rec. H12921 (Nov. 7, 2009).
The bill was brought to a vote on March 21, 2010, without the Stupak–Pitts Amendment and, despite his earlier statements, Driehaus voted for the PPACA anyway. Because the PPACA, as voted on and passed, contained no language to restrict taxpayer funding of abortions, several other congressmen denounced it as including taxpayer funding for abortion.
Three days after the vote, President Barack Obama issued Executive Order 13535 (Mar. 24, 2010), in which he explained that “it is necessary to establish an adequate enforcement mechanism to ensure that [f]ederal funds are not used for abortion services, (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding [f]ederal statutory restriction that is commonly known as the Hyde Amendment.” The parties dispute the meaning and effect of this Order,1 but acknowledge that executive orders do not amend statutes. Debate continues as to whether the PPACA includes federal funding for abortion. But back in 2010, Driehaus was a first-term Congressman who had very publicly opposed the PPACA on his belief that it included taxpayer funding for abortion and then voted for it anyway.
SBA List is an anti-abortion public-advocacy organization that also opposed the PPACA based on its own belief that the PPACA included taxpayer funding for abortion. See http://www.sba-list.org/legislation/pro-life (last visited Feb. 27, 2015) (announcing its “two main legislative priorities [as] ending all federal funding of abortion and ending taxpayer funding to Planned Parenthood”). SBA List was not a political candidate; specifically, SBA List was not Driehaus's political opponent, nor has Driehaus asserted that SBA List supported or was in any way affiliated with his particular political opponent for his Ohio 1st Congressional District seat.
When Driehaus campaigned for re-election in 2010, SBA List publicly criticized him, among other congressmen, for his vote on the PPACA on the basis that in doing so he had voted for “taxpayer-funded abortion.” Four particular statements by SBA List are pertinent here.
Given that Driehaus had campaigned as, and won his seat as, an anti-abortion candidate, this was a problem for his re-election prospects and it angered him. Despite his earlier concerns with the PPACA, Driehaus no longer viewed a vote for the PPACA as a vote for taxpayer-funded abortion. Therefore, he considered SBA List's statements about his vote to be untrue.
Just before the election, Driehaus filed a complaint with the Ohio Elections Commission (OEC), alleging that SBA List had violated Ohio Revised Code § 3517.21(B) (“Unfair Political Campaign Activities”) by stating falsely that he had voted for “taxpayer-funded abortions.” In an expedited hearing, a divided panel of the OEC found probable cause of a violation. Upon this finding of probable cause, the full OEC set a hearing date and discovery commenced.
In response, SBA List sued the OEC, the Ohio Secretary of State, and Driehaus in federal district court, claiming that Ohio Revised Code § 3517.21(B) was an unconstitutional restriction on free speech and seeking a declaratory judgment and an injunction. Driehaus counterclaimed, alleging defamation. The district court stayed SBA List's action until after the OEC proceedings. Driehaus and SBA List agreed to the postponement of the OEC hearing until after the election.2
Meanwhile, SBA List had moved the district court for summary judgment on Driehaus's state-law defamation counterclaim, arguing that the statements were opinion, they were not capable of defamatory meaning, or they were true and made without actual malice. The district court denied that motion for summary judgment and discovery continued in anticipation of trial.
Almost a year later, SBA List renewed its motion for summary judgment under a new theory. This time, the district court granted it, relying on Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011), United States v. Alvarez, 567 U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), and numerous state law cases to conclude that, “as a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation.” Driehaus appealed.
Driehaus places particular emphasis on the district court's First Amendment proclamation in arguing that the grant of summary judgment to SBA List was in error. SBA List counters that summary judgment was proper, even if for an alternative reason. Consequently, there are two aspects to this analysis: the categorical First Amendment proclamation by which the district court granted summary judgment in its second order, and the application of Ohio's state defamation law by which the district court denied summary judgment in its first order. The district court was wrong on both, but its grant of summary judgment was nonetheless correct.
Driehaus argues that the district court's categorical First Amendment proclamation is incorrect and unsupportable. Just to recall, the district court announced that: “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation.” This rendered any further analysis unnecessary.
The district court relied on language from Snyder v. Phelps, 131 S.Ct. at 1215 (), and United States v. Alvarez, 132 S.Ct. at 2550 (), but neither of those is a defamation case and both opinions acknowledge defamation as an excepted First Amendment issue, see Snyder, 131 S.Ct. at 1215 n. 3; Alvarez, 132 S.Ct. at 2544–46 (plurality), 2553–54 (Breyer, J., concurring), which severely limits the application of those opinions to the present case. The district court made no mention of this aspect of the opinions.
The district court essentially adopted the approach in Justice Goldberg's separate opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 297–305, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (Goldberg, J., joined by Douglas, J., concurring in the result). Justice Goldberg argued, albeit with further explanation and reasoning, that the First Amendment protects even malicious and false statements when those statements are directed at public officials concerning public matters or public conduct. Id. at 300, 84 S.Ct. 710. Implicit in the Sullivan majority's very different opinion is that the majority rejected Justice Goldberg's alternative opinion. Therefore, Justice Goldberg's view is not the law. Moreover, we do not read Snyder and Alvarez as overturning Sullivan in such a way.
The district court's broad First Amendment proclamation is a misstatement of First Amendment defamation law and the grant of...
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