Feminists, Racketeers, and the First Amendment
Kaminer, Wendy
FIRST AMENDMENT freedoms are inevitably invoked by provocateurs and dissenters seeking to change or complain about the status quo, so it's not surprising that anti-abortion protesters have...
...She has recently completed a book on irrationalism, focusing on popular spirituality and religion...
...In Ivic, the Second Circuit Court of Appeals considered the legislative history of RICO (and the common definition of racketeering) and held that RICO applied only to economically motivated crimes...
...The threatening rhetoric of Evers was also protected 70 DISSENT / Winter 1999 advocacy: it did not immediately and directly incite violence...
...it targets and aims to destroy entire enterprises that often involve legal as well as illegal activities...
...the First Amendment requires a scalpel...
...most of the acts of "extortion" for which they were held liable involved clinic blockades...
...After abortion was legalized and normalized in the early 1970s, prochoicers suddenly had the law on their side, and pro-fetal-life advocates began adopting the tactics of earlier protest movements...
...Abortion providers have taken to wearing bulletproof vests...
...Creating or changing a climate of opinion or emotion, however, is precisely what political protesters aim to do...
...v. Ivic, a 1993 case involving an attempted assassination by a group of Croation nationalists...
...Few would lament a decline of clinic violence—but many if not most abortion protests involve pure speech, however obnoxious or belligerent...
...RICO prosecutions are not needed to police them...
...The use of RICO against anti-abortion protesters was first upheld by a federal court (the Third Circuit Court of Appeals) in a 1989 case, Northeast Women's Center v. McMonagle...
...WENDY KAMINER, a public policy fellow at Radcliffe College, is president of the National Coalition Against Censorship...
...If the verdict in Scheidler survives appeal, it may greatly curtail protests by anti-abortion radicals...
...but in his concurrence, Justice David Souter observed that "RICO actions could deter protected advocacy," adding that a First Amendment defense would be available to any protest groups sued under RICO...
...But "precision of regulation" is required: neither he nor his organization nor any of its members should be punished for any of the protected activities in which they engaged...
...Not that distinctions between speech and conduct are always self-evident: people opposed to abortion have fundamental rights to rally or picket outside abortion clinics, to accuse women of killing their babies, or to exhort them to consider adoption instead...
...The enraged activists who organize clinic blockades resemble the segregationists who surrounded Little Rock's Central High School in 1956 much more than the besieged African-American students trying to enter the school...
...It's not difficult to understand the threat that the Scheidler case poses to other protest groups—for example, those who boycott or picket businesses accused of discrimination...
...individual defendants may be held liable for all activities of the enterprise if they agree to the commission of two illegal acts involved in it...
...Ruling against the state, a federal appeals court held that NOW's right to boycott was "privileged" by the First Amendment, and that the Sherman Act was not intended to apply to NOW's pro-ERA activities, which were primarily political, not commercial...
...The following year, however, the Supreme Court disagreed and sided with the Third Circuit...
...In NOW v. Scheidler, a 1994 appeal to a lower federal court order dismissing NOW's complaint, the Court held that RICO is not DISSENT / Winter 1999 69 limited to acts "motivated by an economic purpose...
...Enacted in 1970, RICO was aimed at organized crime...
...It allows individuals to be prosecuted for their involvement in a criminal "enterprise," and makes them liable for treble damages in civil actions brought by their victims...
...Shortly after the October 1998 murder of Dr...
...NOW obtained an $85,926 damage award (on behalf of two target clinics), which 68 DISSENT / Winter 1999 is tripled under RICO...
...Whether this was mere advocacy, like Charles Evers's threat to break the necks of people who did not observe the boycott, or direct incitement to imminent violence, is a difficult question of fact...
...Only if Scheidler's remarks constituted unprotected incitement to violence can he be held individually liable for their consequences...
...Those acts are unprotected and may, of course, be punished, but when they occur "in the context of constitutionally protected activity .. . `precision of regulation' is demanded...
...In NOW v. Scheidler, however, the ACLU argued that economic incentive was a "poor proxy" for First Amendment interests: some money-making enterprises, like video stores that sell sexually explicit material, are engaged in protected activity...
...One boycott leader, Charles Evers, threatened to "break the damn neck" of any black who patronized a white-owned business...
...Barnett Slepian (the seventh practitioner killed), the FBI warned dozens of other doctors that an antiabortion Web site was distributing detailed information about them and their families...
...RICO may permit criminal or civil actions against members of an "enterprise" that is engaged in some illegal activities, but as the Court stressed in Claiborne Hardware, "civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence...
...The use of RICO against a political movement has been rightly decried by some civil libertarians because it will inevitably chill political speech...
...If a group of NOW members organize pickets and blockades outside porn shops, with the intent of shutting them down or greatly discouraging their patronage, and if some shops are firebombed, should NOW leaders be held liable under RICO if they have indulged in inflammatory rhetoric about the dangers of pornography...
...Still, as the ACLU stressed in its amicus brief, constitutional rights of speech and association impose strict limitations on RICO prosecutions of political groups...
...a Planned Parenthood clinic in Boston, site of a fatal shooting in 1994, operates behind bulletproof glass...
...Some political organizations committed to illegal acts of violence are not...
...Did Scheidler do more...
...FIRST AMENDMENT freedoms are inevitably invoked by provocateurs and dissenters seeking to change or complain about the status quo, so it's not surprising that anti-abortion protesters have discovered free speech...
...During 1969 congressional hearings on RICO, the ACLU advised limiting the statute to prosecutions of organized crime, cautioning against its application to political protests...
...NOW's case then proceeded to trial...
...Many anti-abortion activists today are not only engaged in loud or angry speech...
...THE SUPREME COURT itself clarified the First-Amendment limits of civil actions against political groups in a 1982 case that should serve as a precedent for a Scheidler appeal...
...RICO focuses on "patterns of racketeering activity...
...Federal law now prohibits clinic blockades, however...
...The arsenal of their movement includes clinic invasions, assaults on clinic workers, bombings, and the shootings of obstetricians...
...Remember that Scheidler and his codefendants were not accused of committing any violent acts...
...And, as the Supreme Court held in a landmark 1969 case (Brandenburg v. Ohio), protesters cannot be held liable for merely advocating the use of force or violence, unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action...
...As some anti-abortion activists have turned toward violence, crossing the line between protected speech and criminal conduct with increasing frequency, conflicts about speech and abortion rights have increased...
...Picketing abortion clinics and conducting sit-ins, they likened themselves to civil rights activists of the 1950s and 1960s...
...j UST AS the Sherman Act was not intended to regulate political movements, RICO was not supposed to brand ideologically motivated activists as racketeers or extortionists...
...Since the case was a class action, any additional abortion clinics that prove they were harmed by the defendants could seek damages against them...
...Thus, numerous people who are essentially unknown to each other and involved in unrelated predicate acts can be tried together and held liable for each other's crimes, so long as they were committed under the auspices of the "enterprise...
...Indeed, NOW itself has reason to fear expansive interpretations of federal laws intended to regulate economic activity...
...Protesters in Claiborne County were charged with coercing adherence to the boycott: African Americans who patronized target stores were publicly identified and vilified...
...According to the complaint, the defendants "conspired to use threatened or actual force, violence or fear to induce clinic employees, doctors, and patients to give up their jobs, give up their economic rights to practice medicine, and give up their right to obtain medical services at the clinics...
...This holding was urged on the Court by strange bedfellows: the federal government and the American Civil Liberties Union (ACLU...
...Both filed amicus briefs...
...In NAACP v. Claiborne Hardware, the Court held that the NAACP could not be held liable for a few acts and threats of violence that occurred during a prolonged boycott of white merchants in Claiborne County, Mississippi, in the late 1960s...
...Instead, according to the New York Times, NOW attorney Fay Clayton charged that they created a climate conducive to violence...
...Extortion must be narrowly defined to exclude mere advocacy and angry rhetoric, and protest leaders should not be held vicariously liable for the acts they did not authorize or approve...
...None of the violence that did occur was authorized by Evers or the NAACP...
...What does this mean for the Scheidler case...
...But, as the Supreme Court observed, the boycott primarily involved protected activity— pickets, marches, speeches, and "the practice of persons sharing common views banding together to achieve a common end...
...This analogy broke down when radicals in the anti-abortion movement turned from civil disobedience to violence, in addition to protests that bordered on criminal harassment of women seeking entry into abortion clinics...
...The particular acts at issue in the Scheidler case generally involved "extortion," allegedly aimed at driving clinics out of business...
...RICO doesn't target individual crimes, like clinic bombings...
...in a couple of cases, shots were fired at the victims' homes...
...DISSENT / Winter 1999 71...
...In NOW v. Scheidler, the Court did not decide whether or not RICO prosecutions of political groups were barred or severely restricted by the First Amendment, at least in some cases (the question was not formally before it...
...it is protected activity...
...The Court's holding in this case speaks to the essence of a RICO prosecution, which mingles lawful and unlawful activity (speech and violence) and makes speakers liable for the violent acts of their associates...
...RICO differs from traditional conspiracy law in allowing alleged members of an enterprise to be tried en masse for one another's offenses...
...The Supreme Court has upheld injunctions prohibiting protests directly outside the entrances to two abortion clinics that had been targeted by highly intrusive protesters...
...The question of RICO's applicability to politically motivated actions is not new...
...FEELING UNDER the gun, quite literally, many pro-choice advocates cheered the April 1998 verdict in NOW v. Scheidler, a landmark civil action for extortion brought by the National Organization for Women (NOW) against several militant leaders of the radical anti-abortion movement and their organizations...
...Government officials generally favor expansive interpretations of criminal statutes, and they have a particular interest in using RICO against political terrorists...
...RICO was originally designed to combat organized crime's infiltration of legitimate businesses...
...In one case, Schenck v. Pro-Choice Network of Western New York, a lower court found evidence of "physical obstruction, intimidation, harassment, crowding, grabbing, and screaming," which continued even after the issuance of a temporary restraining order and made it impossible for police to ensure clinic access...
...They don't have the right to block the path of women seeking to enter clinics, as many do...
...It was once the subject of an unsuccessful civil action occasioned by an Equal Rights Amendment (ERA) boycott and brought by the state of Missouri under the Sherman Act...
...Notice that the defendants were not charged with actually engaging in arsons or bombings...
...NOW successfully sued Joseph Scheidler, Andrew Scholberg, and the Pro-Life Action League and former Operation Rescue leader Randall Terry (who settled the case against him) under the federal Racketeer Influenced and Corrupt Organizations law (RICO...
...Even some of the activities that were the subject of the complaint—like the exposure of blacks who violated the boycott—consisted of protected speech, however "offensive" or "coercive...
...The ACLU's situation is more interesting: the organization is torn between its respective commitments to reproductive choice and to free speech...
...But the Second Circuit adopted a contrary reading of RICO in U.S...
...RICO is a very blunt instrument...
...He allegedly told his followers, "You can try for fifty years to do it the nice way or you can do it next week the nasty way...
...four people who ignored the boycott were the victims of vandalism...
...The Scheidler defendants' incentive was not economic but ideological: they were engaged in political protests, not a campaign to open a competing chain of reproductivehealthcare clinics...
Vol. 46 • January 1999 • No. 1
