A couple of weeks ago I highlighted a good judicial ruling. This week I'm reporting on a bad one, though I believe they happened at about the same time.
That was an opinion on an actual case. This is a ruling to let a case go to trial for defamation. The facts are these: In 2010, Steve Driehaus was running for re-election to Congress. The Susan B. Anthony List ran ads against him in which they argued that he supported federal funding for abortions because he had voted for Obamacare. He lost his re-election bid and has now sued the SBAL for defamation.
Federal Judge Timothy Black, an Obama appointee, had the option of throwing out the case. Instead, he let it go to trial.
Let me make clear the seriousness of this: Normally, political speech on controverted questions relevant to policy is taken to be obviously outside the pale of defamation civil suits. It is supposed to be, in our system, important that such speech be afforded the clearest legal protections and that juries not be called upon to settle hot-button contemporary questions as part of settling defamation claims. A defamation claim is very strong and requires not only that the statement made be false but also that it be known (by the person making it) to be false or made in reckless disregard of the truth--this is called the "malice" criterion. As a lawyer friend has put it:
[The judge] clearly comprehended the position that SBA was taking, which is that funding plans that do not prevent abortion coverage inevitably end up covering abortions, since money is fungible. That was the position taken contemporaneously by numerous pro-life organizations. So the judge, knowing the position and knowing the claim, cursorily dismisses it, even though there is no evidence at all that the claim was knowingly false or in reckless disregard of the truth and considerable evidence to the contrary. This is squarely in First Amendment protections, and the whole point of having them is to prevent these matters from going to trial so that political speech is not chilled.
There is no evidence that [SBAL] did not, at the time, believe the explanation. Likewise, reckless disregard would require that no reasonable person would have believed the explanation. In short, any objectively reasonable explanation that someone could believe is supposed to suffice to get the case kicked when the subject is a public figure. The only exception would be if there was some evidence of intent to the contrary, but there was none in this case that SBA did not believe the explanation they offered.
This was railroading, plain and simple.
Exactly. There were arguments all over the Internet, all over the country, probably internationally, over whether it is true or false that Obamacare will fund abortions. The legal details were hashed over and argued over ad infinitum. To say that it was impossible for a political organization to take a good faith position that Obamacare would fund abortion, and hence to allow a defamation lawsuit (a defamation lawsuit!) based on such a claim to go to a civil jury trial, is nearly incredible and could have wide-ranging ramifications for freedom of political speech.
What is next? If some group says that Barack Obama is not a Christian, will this religious judgment also be subject to a defamation lawsuit? If a politician votes for funding the UNFPA and is defeated after a political group runs ads saying that he supported funding for forced abortions in China, will this also be taken to be fair game for a defamation lawsuit, because the judge reads some UNFPA documents and finds no record of explicit support for forced abortions?
This is legal incompetence bordering on (and probably amounting to) partisan malice. I would be interested to know what recourse SBAL (or any other political organization) has in such a case, when a case is sent to trial which never should have been. Remember: The trial itself, the fact that the trial is allowed, is chilling to controversial political speech. Later groups in Judge Black's jurisdiction will understandably worry that this judge will take sides on political issues and consider political speech he disagrees with to be at least try-able as malicious falsehood. The process is the punishment, whatever the jury decides.
I can't say I'm terribly surprised. Obama is known for selecting judges to the left of the liberal judges we already had. I just hope it doesn't start a trend of left-wing defamation lawsuits before incompetent left-wing judges.