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Jewish World Review March 4, 2003 / 30 Adar I, 5763

John Leo

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Protection for protesters | After 17 years of litigation, the Supreme Court ruled last week that antiabortion protesters can't be punished as racketeers under the loosely worded and maddeningly vague Racketeer Influenced and Corrupt Organizations Act. Congress passed the law in 1970 to make conspiracy indictments of mobsters easier. From Day 1, it was obvious that someone would use the law to hammer political opponents. The inducements were high--the chance to smear adversaries as racketeers and the tripling of damages awarded by a jury. And as lawyers were quick to figure out, activists across the country could be defined as a conspiracy and controlled by a single court injunction.

Reaction to the political use of RICO was muted because the targets--antiabortion demonstrators--are very much out of favor with civil liberties groups and the chattering classes. One who did speak up, Harvard law Prof. Charles Ogletree, said this use of RICO "is unprecedented and raises serious questions about chilling important opportunities for political protest. This stretches the law beyond its logical limits."

The National Organization for Women and two abortion clinics sued under RICO. The case did not involve lethal violence, such as arson and bombing. The antiabortion activists were accused of making threats, blocking clinic doorways, putting glue in door locks, occasionally grabbing and pushing doctors or patients, and "creating an atmosphere" that made arson and bombing possible.

Criminal acts deserve punishment, but RICO allowed these mostly low-level offenses to be lumped together and seen as a broad conspiracy. People who join sit-ins or blockades or who lie down in front of clinics may expect to spend a night or two in jail. Under RICO, they stood to lose their homes and businesses and spend years in a federal prison. Joseph Scheidler of the Pro-Life Action League, a target of NOW, owed $440,000 after his RICO conviction, including triple damages. To pay this off, he took out a $70,000 loan and his house in Chicago was placed in escrow pending the outcome of the case. As a result of the Supreme Court ruling, he will now get it back.

Redefining property. The Supreme Court ruling said RICO's antiextortion and racketeering provisions apply only when force is used to "obtain property." NOW had argued that a woman's right to medical help and a clinic's ability to stay open for business qualified as property. The concepts of "extortion" and "obtaining property" used in RICO cases come from another law, the Hobbs Act. Courts have constantly broadened the meaning of these words. The Supreme Court put a stop to this process. The court also lifted the injunction that had halted the protesters' campaign against clinics.

The court's lopsided 8-to-1 vote is partly explained by the justices' awareness that RICO could be used against antiwar protesters. Another factor is that clinics are now protected by the Freedom of Access to Clinic Entrances Act. Federalism was a concern, too--RICO's possible role in converting new classes of local offenses into federal crimes.

RICO is a ghastly law. Two minor illegalities committed over a 10-year period can trigger a RICO application. G. Robert Blakey, who helped draft the statute, says that if one protester trespasses on the grass and another protester in another city throws a rock through a window nine years later for the same cause, their constitutional right to demonstrate could be redefined as "extortion" under RICO. To avoid this, demonstrations would have to be flawless, but, as he says, "perfect demonstrations aren't possible."

Groups and individuals across the political spectrum got the point and filed briefs backing the abortion protesters. They included People for the Ethical Treatment of Animals, Martin Sheen, and Concerned Women for America. In its brief, PETA said its members had been sued under RICO for actions in an animal testing laboratory. Some civil rights activists believe that if RICO had become law a decade earlier, segregationists would have used it to quash the movement.

The American Civil Liberties Union has had a hard time coping with RICO. It came out against the law early, then waffled for years in response to abortion-rights lobbying both outside and inside its structure. Harvey Silverglate, a board member of the Massachusetts ACLU, said sympathy for abortion rights caused the ACLU to drop its guard on a serious violation of political freedom. In 1990, Lynn Paltrow of the ACLU Reproductive Freedom Project told me: "It's ACLU policy to oppose application of RICO, but there are those on staff who feel that as long as RICO exists, this kind of behavior [aggressive antiabortion tactics] does sort of fit." I wrote here at the time: "In other words, RICO is totally bad, but sort of useful." Now that the court has forbidden the abortion lobby to use RICO as a club, the ACLU might feel free to return to a principled position.

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JWR contributor John Leo's latest book is Incorrect Thoughts: Notes on Our Wayward Culture. Send your comments by clicking here.


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