The SBA List's "Free Speech" Battle

Last week, the Susan B. Anthony List’s computers were seized as evidence in an ongoing federal lawsuit in Ohio. Yesterday, the group’s president, Marjorie Dannenfelser, sent out a fundraising e-mail with the news and a plea for donations. “As important as it is that we vigorously defend against the opposition’s efforts to strip us of our cherished First Amendment right to speak, every minute (and dollar) we spend doing it takes away from our efforts to defeat Planned Parenthood and their pro-abortion Congressional allies,” Dannenfelser wrote.

The lawsuit’s plaintiff is a former Ohio representative for the Cincinnati area, Steve Driehaus. He filed it in 2010, and it stems from the SBA List’s campaign activities in that year’s midterm elections. The group attacked Democrats who oppose abortion around the country, arguing that their support for the health-care-reform act that year would direct taxpayer dollars to abortions. Billboards in Ohio would have read “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” but Driehaus persuaded the advertising company in Ohio not to run them. He then sued, arguing that the billboards—along with other SBA List advertising—constituted defamation. He lost his seat to a Republican that year. So far, judges have allowed the suit to go forward, despite claims by the SBA List that those claims were speech protected by the First Amendment. (The SBA List was founded technically to endorse and support women who oppose abortion for office; it spends a lot of time and money going after Planned Parenthood and calling Obama “The most pro-abortion president ever.)

Only the right-wing media have followed it closely, but it’s an interesting case. This is a year in which many outside groups like the SBA List will be using unlimited funds to say almost whatever they want about any candidate in the country. So far, the court’s actions in Ohio have signaled that it’s not ok to blatantly lie, which is what the SBA List’s claim does, since the health-care act did not fund abortions. Seizing their computers shows that the courts there don’t view the SBA List’s speech is protected in the way that, say, a newspaper reporter’s would be. While the ACLU in Ohio has come to the defense of the group in an amicus brief filed in a different but related case, no one has ever been protected from the consequences of defamatory or libelous speech.

The Susan B. Anthony List portrays itself as a nonprofit working only to educate the public about abortion policy. In truth, though, their 2010 activities coordinated with efforts by Republicans to take over the house. The First Amendment can remain strong at the same time that we hold partisans accountable for the truth of what they say.

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