“Everybody in the pro-life movement knows what 'taxpayer funding of abortion' means,” she said. “To claim that you don't, is not a good argument.”
But Emily Buchanan said her group wasn't feigning ignorance about what their words meant. She explained the Susan B. Anthony List used the words to express their understanding of the law in question, gained through an analysis of its contents released by the Congressional Research Service.
Buchanan cited a July 2010 letter to Health and Human Services Secretary Kathleen Sebelius from 13 U.S. Senators who concluded, drawing on that analysis, that “neither the restrictions in the Patient Protection and Affordable Care Act, Presidential Executive Order 13535 nor the recently released HHS contract materials actually prohibit a state high-risk pool from covering elective abortions.”
In the end, Judge Black's order rested only partly on his idea of what “taxpayer-funded abortion” could mean in a political ad. It also arose from his judgment that SBA List was making a statement of fact, and not – as the group claimed for itself – merely a statement of opinion about Driehaus' vote.
“Ohio courts have recognized,” he wrote,” that, when the allegedly defamatory statements are accompanied by explicit language professing its truth, reasonable readings normally view the statement as conveying information of a factual nature.”
He rejected the list's attempt to defend its claims as unverifiable statements of opinion, citing a series of statements by the group indicating it was a matter of verifiable fact: “It is a fact that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion.” “Help us spread the truth about his vote.” “Please help us defend ourselves and redouble our efforts to share the truth about Rep. Driehaus' vote.”
Kristen Day said it was disingenuous for the SBA List to present its claims in public as straightforward matters of fact, then attempt to defend them in court as matters of opinion that could not be proven or disproven.
She added that the list made a mistake by presenting its claims to the public as facts, and to the court as mere opinions.
“They keep repeating 'the truth' and 'the facts,' over and over again,” Day said. “They're not saying, 'In our opinion, this bill could fund abortion' – which would probably be acceptable, and this case wouldn't be where we are today.”
Buchanan confirmed that her organization's legal defense involved setting aside the objective truth or falsehood of the statement about Driehaus, in order to defend it instead as a protected opinion.
“Our lawyers,” Buchanan said, “are saying that even if there is a question as to whether or not it is true, people and organizations in the public sphere are allowed to have an opinion – and that is protected speech.”
(Story continues below)
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