statement about driehaus was capable of defamatory meaning as we had in hired mr carvin a noted first amendment lawyer and filed a renewed motion this time raising the first amendment and urging the district court to adopt exactly the categorical rule tha eventually announced political candidates can't bring defamation claims even for intentional lies about them if the law associates them with a mainstream political position the court didn't say that under the circumstances of this particular case s statement couldn't have defamatory meaning it said just the opposite at ph d fifteen forty to fifteen forty two but in its second order it laid down a categorical new rule quote associating a political candidate with a mainstream political position even if false cannot constitute defamation not adopting this new categorical rule the district court said in its first summary doesn't decision it had mistakenly focused on the trees the elements of defamation under a law and missed the forest the forest it missed the court explained quote is the right to free speech under the first amendment even false beach when it applies to politics so in the district courts view the first amendment and particularly alvarez and snyder which came along after this case was filed were the game change we submit it's only right for the court to review this as a new categorical constitutional rule and few does such the district court impermissibly carved out two new exceptions to new york times for sullivan one of them status based it treats candidates differently from all other public figures contrary to monitor patriot and the other exception content based in that if the court finds that the statement associates the plaintiff with quote a mainstream political position then it is at the plaintiff is centrally rendered libel proof now it's difficult to imagine the squishier concept and one that depends on what its mainstream it in a given moment is mainstream for example limited to a particular geographic area we're standing in congressman treehouses district is it what's mainstream here or state wide or is there some nationwide standard for what's mainstream remember the new york times or so open mr sullivan was a city commissioner in charge of the police he was he was accused of of supporting the segregationist tactics of the police there's nothing you can imagine more mainstream than segregation in one thousand nine hundred sixty four alabama but that was not what the supreme court conceived as the test the supreme court can seat actual malice as the test necessary to provide breathing room that the first amendment requires so here the district court has gone way beyond new york times versus elven in carving out another exception that it believes is necessary to provide the same breathing room is mainstream time sensitive could it change even in the course of a given case a year ago no one had had heard about isis now we all have opinions about this and finally who gets to decide what's mainstream is it a question of fact on which the defamed can present evidence or does the judge just divine what's mainstream and if so how by reading polls at the time the affordable care act was passed one poll said that forty percent of americans wanted the federal government to stay out of medicare does do we ignore the fact that the fact that medicare has always been a federal government be reasonable differences of opinion well first the this court in and con a tenant in the ohio case is that interpret that doctrine and said you you read the statements in the sense in which the readers to whom they were addressed would ordinarily understand it here s b s has pointed out no words that are capable of a different on different understanding than that than the district court gave them the district court said includes means that it's in the law  taxpayer funding of abortion is a is a very clearly understood firm that this anti abortion organization has used for decades there are no mysteries as to what these terms mean voted for it was clear they were saying he voted for the bil bill had provision in it and the bill doesn't have the pride is there reasonable differences of opinion of whether taxpayer funded abortion is good or bad the district court disagreed he said there are there are no other reasonable interpretations of that  he said the only reasonable interpretation of that statement is that it is in the law and it is not in the long so at all the people who think because susan b anthony list isn't the only bunch of people who think that taxpayer funded abortions exist because of obamacare all those people are just on reasonable all of those people are in the same category as the people who believe that  difficult to think that should connote a missing for a piece of misinformation you mean in terms of people misunderstanding that medicare is a government program that's just my analogy well i mean that that statement could just as easily be interpreted rather then misinformed that medicare is a government program it could be interpreted as a conclusion that the government should stay out of health care are together that medicare shouldn't exist in the first place i mean and you know whether that's reasonable or not given the situation you know might be another matter but should stay out of medicare could not in enough it be given only one interpretation let's go back to the words that were actually concerned about here that he might with your example not matter how funny but he that they said that he voted for a bill that includes taxpayer funding of abortion the district court held there's only one way to reasonably interpret the word includes that it's in the long taxpayer funding of abortion he said there's only one way to interpret that that the law designates money and directs it to abortion congress knows how to to appropriate funds for abortion this would be the first case under the interpretation that's being suggested might be recent this would be the first case that congress ever appropriated money for something without ever mentioning it so i don't think that that the innocent construction to go back to your question judge i don't think it has any place here because s b a has never pointed to a particular word that it used that is equally fickle or subject to more than one interpretation i think the district court got it exactly right on that where the district court went wrong is in trying to develop this categorical rule that that associat a candidate with a with a mainstream put let's assume iraq let's say the district court has gone beyond what anybody else and what about why is this maybe just non defamatory under ohio law in particular you know there's a case from kansas that interest me high the lacie one nine hundred eighty decision where a state's son or sues the chairman of another party claiming that a flyer indicating he had voted for decriminalization of marijuana and homosexuality when in fact his position was just the opposite so it seems to me fairly similar to your hand they held non defamatory i think in that case they also hope that the statement was literally true but in i think the difference here is is we have an actual vote that is being  ascribed to him that he did cast but that is miss miss characterize falsely characterized that strikes me as somewhat similar to those hind the lacy i don't think i think the district court distinguished hind v lacy because it did not set down a hard and fast rule and here s b a was advocating for a hard and fast rule he said in his first summary judgment that hind the lazy did not apply now i recognize in a second summary judgment decision he cited hein v lacy but not because it set down a categorical rule against associating someone with that obviously like the first decision of the disregard much better than soccer i'm sorry like the first decision much better than the soccer but i think the first decision gives hine its proper analysis in the second associates it with a rule that kind never expresses and none of the cases that are cited in that second decision express the categor of the have hatched for example those are postal workers who are being associated with a a republican senator you know it would it would be unfounded for anyone to regard abortion as equivalent in this community to all of the other issues that might comprise a candidate scorecard elsewhere in the country on the west side of cincinnati where mr driehaus lived and earned his reputation abortion stands above all other issues in terms of the extreme views that in genders it bears remembering that that three abortion clinics were were targeted with firebombs on the same day here that theory about a rape victim's body willing the way pregnancy was developed here and that candidates here are judged solely solely by by whether they tow a strict anti abortion lines of saying that that he is a be pro life principles was as mr driehaus says in his in his affidavit uncontested the equivalent of accusing him of a heinous crime there there is no other evidence so the so simply what the  had to do was to superimpose its own views on this community and that's directly contrary to the connotation decision of this court which says that what the court needs to do is to to interpret and read the statement as as as if it were a reader to whom it was directed the readers to whom it was directed here take abortion more seriously than any other and or did it to the first time in well but he cited six common law cases and he certainly discussed the first amendment the same way we discussed it in our briefs in two ways one is to distinguish to explain why the common law doesn't get into public policy debates all the common law gets into is it accuses a person of in engaging in an immoral or bad at act it doesn't say if you accuse somebody of having a controversy you'll viewpoint that that's somehow actionable and he said if it had gone beyond that which we fully agree with that it would have raised first amendment issues but at the end of the day it doesn't matter whether he's wrong on the first amendment because you certainly write on the common law they fail to state a claim under ohio common law because sweeney and hollow in the clearest possible terms say if you lie about a public official in terms of his political acts his political views were quest views on a question of public interest that is not actionable defamation and why is that because defamation involves saying that people have done something bad public officials embezzled money were taking a bra it doesn't involve saying that somebody holds a view on taxes or borscht or something else why is that because a you're not hurting the person by saying he holds of you one raising taxes but it says it's like a running but that's exactly the kind of thing that the courts won't allow they're not going to equate somebody who supports taxpayer funded abortion of being a murderer and if there wasn't if there was a community that was so intolerant that they couldn't tolerate a pew posing viewpoints the courts are not going to conspire with those intolerant bigots and it were damages to that and let's think about the practical consequences of what he's talking about there's one rule of defamation on the west side of cincinnati and another rule of defamation on the eastside of cincinnati you have to analyze what the voters will do but the main reason we don't get juries in to decide whether these these questions is because we don't allow  juries to referee public policy debates in this case what they want the jury to do is engage in statutory interpretation look at the affordable care act and if they disagree with my client's view of statutory interpretation as this court those every day they want them to pay damages to their opponents they want breweries not voters to decide what's in the affordable care act and going to your point judge killing the innocent construction rules in terms of the truth of what we say makes it absolutely clear that we were entirely right about it particularly as a matter of law he and the  engage in this very tendentious reading of what we said we said the acting kluges taxpayer funded abortion they go through the act and they say well was there an appropriation for abortions only and therefore we're wrong well an innocent reasonable interpretation of our statement is not that the appropriation is in the act but that it will authorize taxpayer funded abortion under their view you could you would be first to say that the act has taxpayer funded health insurance and because the act doesn't appropriate money for health insurance for low income people it just wealth arises and you cannot engage in a very narrow view of what we said and say were technically wrong you have to say is there a reasonable construction of what we said could we have been referring to the rising taxpayer funded abortions as opposed to appropriating that's one of the innocent construction darkroom which is well established in ohio under holly at sci you and which discord in briggs said it's constitutionally required you needed to give an innocent construction so that we do not have juries resolving these contentious public policy issues do you think that the district court went too far in declaring its new rule do you have any authority that supports the district court's it's it's it's  sweeney sent sweeney is a is a ohio court decision that said in that case they had said the congressmen opposed to a judge because he was a foreign born jew and they said whether or not that's true doesn't matter because you are describing a political act and we do not allow public officials to come in and soothe their citizens because they've missed describe their records i'm talking about the district court's new first amendment rule well a political candidate with a mainstream political position even a false cannot constitute a mason you have any authority that supports that new rule of first amendment  claims into court i fully agree with the district court that if ohio common law departed from hein in these other cases and allowed you to bring these political public policy disputes into court it absolutely would violate the first amendment as he points out under alvarez what is the holding a valve or is that the government cannot impose financial penalties on people who say untrue things about politics in election campaigns because  we don't bring every time one candidate says my opponent's line about raising taxes into federal court and have juries decide those questions in a democracy we allow the voters to sort out the truth uninhibited right so that was a real assertion a fact that wasn't even political if the government can't say that you lied about your own medals then surely the government can say that you're lying about your public policy event so i would direct you to the dissenting opinion which said look we disagree with the majority on the stolen valor act but we would agree that if there was a law as there used to be in ohio until it was and joined by the district court this case would set up a tribunals to figure out whether or not people have told the truth as during political campaigns that that would be unconstitutional now the reason alvarez says we don't get it defamation cases is because the time a real defamation case if you're a asserting a fact about the candidate we never accused mr driehaus would be corrupt or incompetent or anything like that we said he voted for a law which we believe has taxpayer funded abortions and which it  does and therefore we have not attacked him as a person we have attacked his public policy views if we decided what we wanted to do was to decide this case on his narrow ground as we could you just said well it does include taxpayer funded how much truth do you have to have to the statement in order for it to not be a false state an innocent construction crew if there's any reasonable basis we win and we are miles beyond any reasonable basis just two points even if you accept his extraordinarily constricted view of what we've said that there needs to be an appropriation in the act for abortions they appropriated five billion dollars to community health insurance high risk pools to do all kinds of services including abortion they gave eleven billion dollars to community health centers for family planning services including abortions but don't take my word for it representative driehaus insisted on the stupak amendment to say none of these funds can be used for abortions he demanded that the president put in an executive order same none of these funds can be used for abortions well if there was no abortion funding in the act then why in the world was representative driehaus same you need to prevent that money from going to abortion so unless representative  himself entirely irrational and chasing phantoms we know that there was abortion funding and yet i haven't talked about all the health insurance where they do have abortion under these health insurance plans that federal are federally subsidized so there's just no way that this is not within the innocent construction rule the other point i'd like to make is there's a separate doctrine under ohio law which says i substantially true and by bet they mean as the supreme court put it mass on is the gist of what they said true would be is the is the thing that's allegedly defamatory true mr dr argument is earle of the pro life voters on the websites of cincinnati were offended by the fact that we said he supported a bill with abortions they he agrees that the bill authorizes abortion funding well well of those pro life voters would have been just as offended if you had voted for a bill that wealth arised as opposed to directly appropriated money for abortion so it is substantially true all of this harm to his reputation would have occurred if we had said this money is authorized in the bill and therefore it's substantially true finally these are not factual disputes about whether unless you can show as the supreme court has emphasized repeatedly a disprovable assertion of fact in time incorporated they said it's a reasonable interpretation then it's an opinion and people get to offer opinions particularly about landmark legislation all the time and juries can say we disagree with your opinion about the affordable care act they are only authorized to decide facts and the reason for that again is if you were authorized juries to referee public policy debates then every debate that goes on in ohio we could sue a representative driehaus tomorrow for saying we lied and then we could we could bring his assertions about us about our ads in front of a jury or any candidate for governor who has a disagreement about whether he raised taxes was in favor of gun control but all of those intensely political disputes that the supreme court has emphasized how this times needs to be decided in a free and uninhibited robust political marketplace of ideas would be decided by juries with plaintiffs gets to pick sympathetic forms a mainstream pool told you we were trying to do there and all all the district court was trying to say was look at the edges there's problems right if you call somebody a communist or a fascist ok you could argue that that's a political view but there are close questions we're calling him a fascist or communist might imply that he's behaving in a traitor wrist way so what i was trying to say was look this is not even near the edges of saying that somebody is a con saying that you support publicly funded abortions is a view that shared by vast west of the community so it's not even a close call he was reserving the question just to be careful because he didn't want to  purely categorical rule that anybody could come in and say i mean it's fascist racist and be protected by this he says look as long as it's the kind of thing that people debate typically in elections we're not going to put those typical election debates and he is not are you quite noticeably that is not a mainstream political view it's hello but millions of people full members of the supreme court we're all kinds of people think that if you're going to fund pregnancy and all kinds of other family planning devices you should also be funding abortion that's a very mainstream view that's one of my clients obviously disagree with but we're not presumptuous enough to say that our view is the only reasonable view in this context and again i just want to emphasize that however one comes out on that debate at the end of the day he is asking for a jury to interpret a statute the most monumental piece of legislation that's been passed in the last twenty years and if they disagree with our interpretation they want us to pay him dead bodies there's no dispute about facts there's no dispute the driehaus voted for the bill it's only a dispute about how you would hope the bill and are we really going to deputize for the first time in american history juries to decide these complicated legal and public policy questions put sickly when as i've emphasize act includes taxpayer funded abortion to me two totally related say it includes appropriations for abortions and nothing else it is true that community health services in the high risk insurance pools do  cardiac surgery as well as abortion surgery but we didn't say we didn't say abortions only we said including abortions therefore there is no reasonable construction of our statement which could be labeled fulls you would have to ignore what the supreme court said which was that defamation of public officials is one content based restriction that we have always tolerated so alvarez doesn't scrap that and it actually cites new was as the sweet court itself said on a very narrow quote technical rule of law having to do with the matter of proof if a claimed injuries resulting from a claim defamation publication the technical rule it was citing was in order to show that the plaintiff was subjected to ridicule or contempt in a defamation case you'd have to show one that his character was being attacked and two that he was being accused of either immorality or violating the law that has not gained traction even with subsequent ohio cases as evidenced by the murder case that we cite and the condit case we cite neither of which accuse the people of any and morality or violations of the law sweeney didn't even take hold in ohio  the biggest factor here that i think counsel overlooks is this was an accusation of hypocrisy just given you mention the high case not in hind he was an accused of hypocrisy but in shields versus bulls they said that's the difference maker if the if he's being accused of hypocrisy betraying his principles that is actionable and here he mentions where we don't want to give over to nuts who think steve driehaus is a murderer  ability to create a defamation action out of that the reality is that's the way people here saw steve driehaus after the statements are made in the court should not close its eyes to that in terms of what's mainstream going back to that if i accuse the vegetarian party candidate of eating meat i've ruined her reputation now what i've accused her of is mainstream but i have ruined her reputation under the district courts rule she has no defamation claim even if it was intentionally falls he mentioned opinion in the situation the court dealt with that in its first summary judgment order by reviewing the four veil factors under the ohio constitution there is no basis for for this being called an opinion especially as courts are given the fact that the statement starts with five words it is a fact that and then finally with respect to his argument about the how to interpret the affordable care act this is a rather unusual situation that's dependent on an interpretation of the law he wants that interpretation to be left over to lay people courts interpret laws the district court treated as a question of law what is contained in the affordable care act this court should do the same and all four of the provisions that he has mentioned do not mention a portion or provide funding for