A real racket Defending the right to protest
Vitullo-Martin, Julia
Julia Vitullo-Martin A REAL RACKET NOW's scheme to silence abortion protest On February 27, the day after the Supreme Court handed down its 8-1 decision overturning a federal racketeering...
...In her concurring opinion, Justice Ruth Bader Gins-burg said the Court was "rightly reluctant...to extend RICO's domain further...
...He pretty much had it right...
...For Pro-Life Action League executive director Joseph Scheidler, who had pledged his house as collateral against potential damages, a loss would mean losing hearth and home as well...
...In claiming that sit-ins were extortionist, NOW was seeking to prove that anti-abortion protesters, who were mainly indistinguishable in their behavior from NOW allies such as civil-rights protestors, were in fact racketeers...
...Saying there was no First Amendment issue, U.S...
...She is working on a book on the American jury and criminal law...
...A fixture in front of a women's health clinic not far from Lincoln Center, this elderly man dresses up much like a carnival vendor...
...He carries poster-size photographs of mangled fetuses, which he pushes combatively in front of women entering or leaving the clinic...
...At trial in 1998, NOW reduced these to 31...
...He is clearly a little unhinged, but not unsophisticated...
...Convinced that PLAN headed a national conspiracy of anti-abortion terrorists, NOW hit on the daring legal strategy of suing them under the 1970 federal Racketeer-Influenced and Corrupt Organizations Act (RICO), originally targeted at organized crime...
...Solicitor General Theodore Olson argued that the racketeering law was a proper vehicle for going after protesters...
...The many civil libertarians, antiwar activists, and animal-rights organizations that had filed friend-of-the-court briefs on behalf of the anti-abortion protesters gave a deep sigh of relief...
...The Court's ruling in the seventeen-year-old case of the National Organization for Women v. Scheidler was indeed a solid victory for protestors-of all stripes-and a crushing defeat for NOW...
...Defense attorney Brejcha did not think the NOW-Bush administration alliance was strange...
...In oral arguments before the Supreme Court, NOW attorney Fay Clayton asserted, "If my client, NOW, went up to the Augusta golf course to tear up the greens, that would be extortion...
...With its origins in the volatile blockades and boycotts of the 1980s, NOW's class action suit against the Pro-Life Action Network (PLAN) had been unsettling from the start...
...He wears-perhaps he sells-all sorts of paraphernalia attached to his fly-fishing vest: tiny baby dolls, flags with slogans, miniature surgical implements...
...To prove racketeering, NOW invoked the 1946 Hobbs Anti-Racketeering Act, which outlaws obstructing commerce "by robbery or extortion...
...While the government has always been able to seek injunctions under RICO, NOW's innovation was asking that injunctive relief be granted to it as a private party...
...That day he was waving a new handwritten poster emblazoned, "The Supreme Court Has Set Us Free...
...NOW essentially argued that the owners of the abortion clinics were being hurt financially (extorted) by blockades of their businesses-a peculiarly ironic argument to be made against protestors who understood the business of the clinics was murder...
...The jury found 4. Even these were vague, says PLAN defense lawyer Thomas Brejcha...
...They are not out of danger yet...
...The NOW strategy had one enormous inherent disadvantage: RICO punishes racketeering, which the law defines as the organized business of extorting money by intimidation, violence, or other illegal methods...
...No, said Justice Antonin Scalia, that would be a crime, but "extortion is just not the crime involved...
...Thaf s the beauty of RICO-conspiracy charges can target anyone deemed to be within the criminal enterprise...
...Out of thousands of nationwide protests over twelve years," he says, "jurors found just unspecified, minor acts of violence by unknown actors merely 'associated' with the defendants through a loosely affiliated coalition...
...A victory would not only enrich NOW directly and pay its immense legal fees, it would also put the financially strapped protesters out of business...
...Because the Court rejected the underlying RICO argument, it did not have to address the matter of whether private parties can get in-junctive relief-a tool that could destroy political protests as we know them...
...Yet in what sense were even the most aggressive anti-abortion protestors robbing or extorting anyone...
...When pushed hard by the supremes, Olson admitted that his definition of racketeering might have applied to the sit-ins of the civil-rights movement...
...The Court has served us and the First Amendment well...
...Fair enough, but a RICO suit functions on an extraordinarily punitive level...
...When directed at protesters exercising their First Amendment rights or engaging in peaceful civil disobedience, RICO should have unnerved us all...
...He points out that the administration wants the widest possible prosecutorial authority for RICO, which has become the major federal attack mechanism against white-collar crime...
...Justice Anthony Kennedy reprimanded him: "There's always a First Amendment implication in a protest case...
...To obtain property means to acquire it, and not simply to deprive its owner of its use...
...The criminal charges against PLAN at first looked immensely serious-some 121 violent crimes, according to NOW...
...Even when directed only at gangsters and drug dealers, the vagueness of RICO's conspiracy elements had long unnerved many civil libertarians...
...The appeals court also upheld the lower court's permanent national injunction, which had prohibited PLAN from trespassing at abortion clinics anywhere in the country...
...No one had ever before thought of using RICO against a social-protest movement...
...Of the many odd bedfellows accumulated by NOW over the past seventeen years, one of the more interesting has been the Bush administration...
...This became the crux of the matter for Chief Justice William Rehnquist who, writing for the majority, said that extortion means "the obtaining of property from another" by force-and that the protesters had not "obtained" the clinics' property...
...Not the least of RICO's many advantages is that it wields triple damages against convicted defendants...
...Julia Vitullo-Martin writes frequently for Commonweal, the Wall Street Journal, and other publications...
...The jury assessed a damage award of $85,000-to be tripled- against Scheidler, PLAN, and other loosely affiliated protestors...
...In 2001 a federal appeals court in Chicago upheld the award...
...Julia Vitullo-Martin A REAL RACKET NOW's scheme to silence abortion protest On February 27, the day after the Supreme Court handed down its 8-1 decision overturning a federal racketeering conviction of anti-abortion protesters, I happened to get on the New York subway with one of the West Side's more repugnant prolife demonstrators...
...Oddly, it has received almost no attention in the mainstream press...
...NOW had long sought to bar protestors, whom they called thugs, from destroying property or menacing physicians...
Vol. 130 • May 2003 • No. 9
