John Leo
After 17 years of litigation, the Supreme Court ruled last week that anti-abortion protesters can't be punished as racketeers under the loosely worded and maddeningly vague Racketeer Influenced and Corrupt Organizations Act (RICO). Congress passed the law in 1970 to make conspiracy indictments of mobsters easier. From day one, 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 juries.

Reaction to the political use of RICO was muted because the targets -- anti-abortion demonstrators -- are very much out of favor with civil liberties groups and the chattering classes. One who did speak up, Harvard law professor 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 (NOW) and two abortion clinics sued under RICO. The case did not involve lethal violence, such as arson and bombing. The anti-abortion activists were accused of making threats, blocking clinic doorways, putting glue in door locks, occasional grabbing and pushing of 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, including triple damages, after a RICO jury ruled against him. To pay this off, he took out a $70,000 loan and his home in Chicago was placed in escrow, pending the outcome of the case.

The Supreme Court ruling said RICO's anti-extortion and racketeering laws apply only when force if used to "obtain property." NOW had argued that a woman's right to medical help and a clinic's ability to stay open both qualified as property. The concepts of "extortion" and "obtaining property" used in RICO cases comes from another law, the Hobbs Act, and courts have constantly broadened their meaning. The Supreme Court put a stop to this process. The court also lifted the injunction that stopped all the defendants' protests nationwide.

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.


John Leo

John Leo is editor of MindingTheCampus.com and a former contributing editor at U.S. News and World Report.

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