The court's lopsided 8-1 vote is partly explained by the justices' awareness that RICO could be used against anti-war protests now. Another factor is that Congress passed the FACE Act (Freedom of Access to Clinic Entrances) in 1994, so imaginative use of racketeering laws is unnecessary. Federalism was a concern, too -- RICO's possible role in converting local offenses into new classes of federal crimes.
RICO is a ghastly law. Two minor illegalities committed over a 10-year period can trigger a RICO application. G. Robert Blakey, a law professor at Notre Dame, helped draft the statute and was later surprised to see how it was stretched by the courts to apply to demonstrations. He says that if one protester trespasses on the grass and another protester in another city throws a rock through a window nine years later, constitutionally protected demonstrating could be converted into "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 PETA and the Southern Christian Leadership Conference. As the ACLU once pointed out, if RICO had been written a decade earlier, segregationists could have used it to quash the civil rights movement.
The ACLU has had a hard time coping with RICO. The organization came out against the law early, then waffled for years in response to pro-abortion lobbying both outside and inside its membership. It had no serious objections to the use of RICO in this case. 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 anti-abortion 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 Supreme Court has stopped the abortion lobby's use of RICO as a club, the ACLU might feel free to return to a principled position.
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