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Victories Made Bitter Print E-mail
By Hadley Arkes   
Tuesday, 12 February 2013

Editor’s Note: Friends, after the pope’s shocking announcement yesterday that he planned to resign, there arose an instantaneous tidal wave of commentary. Instead of adding to what has already become a highly repetitive and sometimes bizarre reaching for something to say, we have decided to continue on with our daily business for now here at The Catholic Thing. We fully expect that in time we’ll have even more reason to be confident that Benedict XVI has done what is best for the Church and the world. And we can hope that by then the vague efforts to connect his decision with the abuse crisis, Vatican scandals, and the attacks of Catholic dissenters will have slipped into the oblivion they deserve. We’ll bring you some reflections at a later date when it seems more helpful to do so. In the meantime: Let’s pray for our dear Holy Father, and for the cardinals who will choose his successor. – Robert Royal
 

Those of us who have spent years reading constitutional history have by now encountered a long stream of encomia on the rise of parliamentary power in England, marking the regime of expanding “rights,” the precursor to the American Revolution. That movement in Britain was led by the men who became known as Whigs, in their resistance to Charles II and the powers of the monarchy, painted ever dark.  

The parliamentary election of 1679 was the first in eighteen years, and it brought a surge for the Whigs. But what has been nicely airbrushed out of the clichéd accounts is what fueled this ascent of the Whigs: namely, that Charles could be succeeded by his brother James, Duke of York, a Catholic. And with that came the grave danger that everyone’s liberties would be endangered through a takeover by the Papists. In the first months of the new Parliament, one of the Whig leaders, William Harbord, brought in a bill to banish all Catholics from London.

What brought all of this back is a kind of presentiment that, years from now, the regime in America, transformed by Obama and his party, will be celebrated with comparable encomia for spreading vast benefits to common people. But airbrushed out of this account will be the unlovely fact that the grand achievements came along with a deliberate scheme to push the Catholic Church out of the public arena. 

Catholic teaching would be stamped as illegitimate for our politics and our laws, for it would be branded as essentially irrational, groundless, a body of blind belief. And after all, was it not Justice Kennedy, a Catholic, who had pronounced the ancient rejection of the homosexual life as nothing more than an “animus,” an irrational hatred?

As the question of same-sex marriage is litigated more and more, this theme has been threading through the arguments of those people who have sought to claim that the opposition to homosexual marriage reduces simply to prejudices, to irrational hatreds, long settled. But another version of this understanding came out about a week ago, in a trial that went in favor of the Susan B. Anthony List (SBA), a major pro-life political action group, headed by the formidable Marjorie Dannenfelser. 

The group was sued in Ohio for helping to deprive Rep. Steven Driehaus of his job as a congressman through the un-chivalrous tactic of reporting on his voting record. Rep. Driehaus had represented himself to his constituents as a pro-lifer, but the SBA contended that his claims were belied by his actual record.  


          Associate Justice Anthony M. Kennedy

To be fair, Steven Driehaus did stand with a band of pro-life Democrats trying to keep abortion out of Obamacare. But he was willing to fold his opposition, as they were, for verbal promises that everyone knew would soon evaporate. For Driehaus, as with Richard Neal in Massachusetts, that was a sign of politicians affecting to be pro-life, while being quite unserious.

A law in Ohio allows candidates for office to sue people who “lie” about them in the course of the political campaign. It was essentially a trial for libel, and rather hard to take seriously:  Since the case of New York Times v. Sullivan (1964) it seemed to be understood that politicians could not make facile use of the laws of libel to silence their “citizen-critics.” But even before that, it was long understood that political speech was heated speech, spoken often on the run, and there had to be certain room for “fair commentary,” even with certain errors. 

And yet Judge Timothy Black in Ohio, a former president of Cincinnati Planned Parenthood, allowed the trial to continue.  Eventually, Driehaus dropped his charges under that special law for candidates, and waged his case as a suit for libel.

The SBA was represented by that accomplished lawyer, and son of Ohio, Robert Destro from the law school at the Catholic University of America. And about ten days ago Destro and the SBA prevailed: Judge Black dismissed the suit. But the reasoning of the judge simply laid the ground for a further campaign of vilification for the pro-lifers.

The judge gave the victory to the pro-lifers by invoking the recent cases of Snyder v. Phelps (2011) and U.S. v. Alvarez (2012). In Phelps, the Supreme Court dissolved an action against a group harassing the family of a dead Marine with signs saying “Semper fi fags” and “Thank God for Dead Soldiers.”  In Alvarez, the Court overturned the prosecution of a man who had lied about his military record. In both cases, the Court detached itself even further from the moral common sense that used to govern the cases on speech. 

With the notable exception of Samuel Alito, even the conservative judges were willing to sign onto the doctrine that all speech was protected, even the hateful and fraudulent. Judge Black was willing to give the victory to the pro-lifers now by likening them to Phelps and Alvarez:  He was willing to install the predicate that the SBA was in fact “lying,” when it was doing no such thing.  

In other words, the premises are gradually – and quite earnestly – being put in place: To criticize a public figure for being favorable to abortion is itself taken as immanently hurtful and hateful – and animated by irrational beliefs, which cannot be justified. Step by definite step, the speech defending Catholic teaching is being stamped as illegitimate, by definition, in our public discourse.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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Comments (8)Add Comment
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written by Jacob R, February 12, 2013
This kind of thing only matters if you believe in the secularist Gomorrah people call America..

Lucky for us, the judges and politicians can make all the silly pronouncements they want and Christ is still king of the universe!
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written by Manfred, February 12, 2013
Always remember, Dr.Arkes, that we are not alone. We live in a world created by God Who is allowing all of these things to happen. The Blessed Mother has warned for centuries of a great chastisement which would include "diabolical disorientation" to occur. Satan and his minions would be loosed on the earth because Man had turned from worshipping God to worshipping Man. Does anyone seriously think that we are going to get away with aborting 55 million of God's creatures? Does anyone think we are going to get away with legalizing what God has called forever an "abomination"(aberrosexual 'marriage')? The Pope has just abdicated and there is no leader to replace him in sight. The Church is in a "civil war". Secular Americans are arming themselves to the teeth in anticipation of massive oppression by the central government. The answer was numbers. If enough people had converted and amended their lives, the catastrophy could have been averted. Christ asked that France submit and dedicate the nation to His Sacred Heart. This was not done and one hundred years later, France experienced the Revolution and the Reign of Terror, as well as a secular government ever since. Now it is our turn.
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written by Dennis, February 12, 2013
Which is why Catholic reliance upon the legal system has been so misbegotten.
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written by K Allen, February 12, 2013
Prof. Arkes' analysis is insightful, but slightly misleading and unfair to the judge. First, SBA sued Driehaus - not the other way around - along with certain Ohio officials, trying to stop the Ohio Elections Commission from determining whether SBA's adds were false. In this effort, SBA was joined by the ACLU of Ohio. The court denied SBA's request to enjoin the Ohio officials.

Driehaus did counterclaim against SBA for defamation. In moving to have the case dismissed, SBA argued that "[b]ecause respect for diversity of opinion is a fundamental value of American democracy, it is simply not actionable, as a matter of law, to impute mainstream political ideas or political acts — even falsely — to political candidates or public officials." Contrary to Prof. Arkes' view, the judge did not "install the predicate that the SBA was in fact 'lying.'" The SBA itself installed that predicate.

Things are not as dire as Prof. Arkes suggests. Certainly, the judge never said that "criticiz[ing] a public figure for being favorable to abortion is . . . immanently hurtful and hateful," nor can his ruling fairly be read as suggesting such.
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written by Aelric, February 12, 2013
"Judge Timothy Black in Ohio, a former president of Cincinnati Planned Parenthood,"

Was there no basis for a motion to have the judge recuse himself based on conflict of interest?
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written by Hadley Arkes, February 12, 2013
I’m afraid that K Allen has given us a rather tilted reading of the case. The SBA wasn’t running through the landscape, looking for places to launch suits and drain its treasury. It would be best to let Marjorie Dannenfelser explain in detail whether they were launching a preemptive suit, to ward off the threat of an action under the statute in Ohio—or whether they had the impression, most vivid, that they were indeed being sued.

As for the meaning of Judge Black’s decision, one has to blind oneself to the very cast of the decision— the move to liken the SBA to the thugs in Phelps and the liars in Alvarez—in order to miss the point that Judge Black was making. There is a danger of falling into obtuseness if one fails to see the strands that connect the writing of Judge Black to the writing of judges in other cases—e.g., the assumption settling in that abortion is deeply rightful, that anyone who opposes abortion must be deeply wrong, animated by a blind, religious, and therefore irrational prejudice, which reduces finally to an unreasoning hatred. These strands have been quite visibly at work now, shaping the opinions of the judges, and quite clearly distorting their understanding and, very likely, their character. It is not a sign of realism or wise detachment to pretend that the judges are not exactly saying what people in their circle readily understand that they are saying.
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written by K Allen, February 14, 2013
I am pleased that Prof. Arkes does not dispute the fact that it was the SBA which introduced the “predicate” of its lying to the lawsuit. That’s a fact hard to refute, as the SBA cited over a dozen cases where blatantly false accusations were ruled to be not actionable as a matter of law. In other words, the SBA promoted the very argument Prof. Arkes slams Judge Black for considering.

On the “obtuse” front, I admit that I am not nearly as sharp a thinker, nor as articulate, as Prof. Arkes, so I must plead guilty by default. Still, I contend, not that Prof. Arkes’ analysis is wrong, but that, as I said in my first post, his take on the SBA lawsuit is misleading and unfair to the judge he attacks. I agree with Prof. Arkes to the extent that the judge’s references to the Phelps and Alvarez decisions were unnecessary. But Judge Black did not suggest that the SBA’s members are thugs or liars; Phelps and Alvarez were quoted for their strong free-speech holdings. Nor does Judge Black’s opinion in any way demean or denigrate the pro-life position. Indeed, it does not even describe, much less malign, the SBA’s statements against Driehaus.

Driehaus’ claim against the SBA was for defamation. The SBA accused him of voting for publicly funded abortions; Driehaus argued that those accusations wrongfully damaged him. Defamation, however, requires a statement that attacks the plaintiff’s reputation, and exposes him to public hatred, shame, or contempt. Judge Black ruled that the SBA’s pro-life statements against Driehaus were not defamatory as a matter of law. That is, he ruled that voicing a pro-life view cannot be actionable, that such views are absolutely privileged. To put it another way, the judge’s ruling was the exact opposite of what Prof. Arkes portrays it to be: far from holding that to “criticize a public figure for being favorable to abortion is itself taken as immanently hurtful and hateful,” Judge Black ruled that such criticism is not hurtful or hateful as a matter of law. I would have thought Prof. Arkes would be pleased with the judge’s opinion. I guess that just shows how obtuse I am.
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written by M Dannenfelser, February 27, 2013
K Allen is simply wrong on the posture of SBA List from the beginning. We ran ads consistent with arguments coming from the Church, all pro life groups, the GOP, and legal scholars who agreed that without a statute prohibiting abortion funding, we will have it at taxpayer expense.

Over 1 million dollars of legal expenses later, it is absurd to suggest that we went trolling for a legal battle. We were sued under the Ohio election law, and then we counter-sued on First Amendment grounds. Then post action, Dreihaus dropped the suit but pressed on with a libel suit. We fought this throughout the election season. I suspect that reaches to Mr Allen and his colleagues' purpose. We spent a tremendous amount of time and resources fighting to defend free speech, undernining our ability to exercise it fully in the 2012 Election. Mr. Allen makes a novel, absurd argument and further obscures the fact of Dreihaus offensive vote and of anyone's right to disagree with it. His constituents settled it.

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