NOW's Long-Running Pattern of Racketeering Litigation

Today the Supreme Court will hear the latest installment of the two-decade-old attempt to use the Racketeer Influenced and Corrupt Organizations Act as a weapon against anti-abortion activists. The RICO lawsuits are based on a ridiculously broad definition of racketeering that depends on a ridiculously broad definition of extortion. As I argued back in 1998, RICO litigation is neither appropriate nor necessary to address criminal behavior aimed at preventing abortions, and it's bound to have a chilling effect on legal protests by a wide variety of groups. The Thomas More Society, which represents the abortion protesters in Scheidler v. National Organization for Women, notes that opponents of this RICO abuse include the AFL-CIO, Martin Sheen, Dan Berrigan, Howard Zinn, PETA, and Sojourners (not to mention the author of RICO, Notre Dame law professor G. Robert Blakey). For a defense of the litigation that, in typical fashion, completely ignores the free speech implications, see this Boston Globe piece by former NOW lawyer Martha Davis.

Comments

[Akira MacKenzie]

Criminal trespass? Yes. Disorderly conduct? Yes. But Racketeering? That's a bit much.

As much as I despise the philosophy and tactics of the fetus-philes, I don't know if RICO is the proper tool for the job.

[David]

I don't like the process of accumulating charges that prosecutors love to engage in these days. Sadly that's seems to be what RICO is used for, to add violations on to deeds that already illegal, and not racketeering.

[independent worm]

Well, this has been a long time running. But for the bazillionth time, FWIW, I DO think RICO applies, but ONLY -- and hear me well here, ONLY -- to the very small sub-set of people who did, in fact, intentionally plan to use, and employed, a pattern of violence to essentially comandeer the entrances to certain clinics in an attempt to ruin them economically.

That must be carefully excised and distinguised from the vast majority of other acts of disobedience, protest, speech and other lawful forms of dissent.

To me, beating up employees or clients on their way into a clinic is the same as beating up customers of butcher shops who didn't pay their mafia protection money, to force them to shop somewhere else (or buy other things). And yes, the butcher shop comparison is intentional.

The ONLY argument I kind of buy about the non-applicability of RICO to THAT (the violence) is that Congress intended to target the mafia specifically and not others who merely mimicked mafia tactics to achieve non-mafia related ends; however, I would respond to that by saying it makes more sense to define the outlawed behavior than it is to define who is barred from engaging in it. If the foo shits, wear it.

[thoreau]

Like IW, I could see the use of RICO in some narrow cases.

I could contemplate applying organized crime statutes to, say, the network of supporters who aided Eric Rudolph. But I would still wonder why good old-fashioned charges like "Harboring a Fugitive" or "Aiding and abetting..." couldn't be levied.

[saw-whet]

I just sent out a consent order and the best I had was a violation of the environmental conservation law. Hey, it's your water, folks.

But this constant ratcheting up, it's disturbing. And Bush is on the radio pounding the drums and he most boldly conflated 9/11 and Iraq again. Those who voted for this guy are anti-American.

[independent worm]

So everyone is clear, this is not a criminal case. Private Plaintiffs may plead a "civil RICO" claim. The advantage to it is the ability to get triple damages.

[thoreau]

My bad.

[joe]

I don't think it's very nice, or very fair, or very smart, of them to refer to John Roberts' "chamioning" Operation Rescue's activities.

But let's face it - there was an organized campaign of terror going on here, not just "free speech." If you'll notice, the number of protests cited in the article went from 1100 in 1994 to 14,000 in 2004. That doesn't look like it's squashing free speech to me.

[rafuzo]

I'm with joe. Let's get these guys first, and then moveon.org, International ANSWER, and any group that's ever organized multiple protest marches that may or may not have involved pie flinging, window breaking, or police-disobeying. After all, they are organized campaigns of terror too.

[joe]

rafuzo, find me a story about ANSWER or MoveOn killing anyone, of STFU.

[grapenutx]

Joe:

International ANSWER participated in attacks and sexual assaults as a protest of Benjamin Netanyahu speaking at Concordia University.

Don't worry though, people WERE punished. Not the people who carried out the attacks of course, but the student group that invited Benjamin Netanyahu to speak.

I mean, come on... could you imagine the outrage if abortion protestors grabbed women, tore off their shirts, and uninated on them in order to protest abortion, and then the abortion clinic was punished for instigating it? I am adamantly pro-choice, and I think that abortion clinics need to be protected... but don't pretend that abortion protestors are not being singled out for their political beliefs. If abortion sytle protests were being used to protest "globalism", people would be yelling bloody murder at using the RICO statute to prosecute them.

[Dave W.]

"Well, this has been a long time running. But for the bazillionth time, FWIW, I DO think RICO applies, but ONLY -- and hear me well here, ONLY -- to the very small sub-set of people who did, in fact, intentionally plan to use, and employed, a pattern of violence to essentially comandeer the entrances to certain clinics in an attempt to ruin them economically."

This doesn't make any sense. You can't ruin a business economically by commandeering its entrance, even if you are super lucky and manage to comandeer it for 4-6 hours. Police generally have protestors, especially violent ones, cleared out a lot quicker than that. Stop drinking the Kool Aid on this.

I can see racketeering when a doctor ends up dead, but for civil disobedience. No, your talk of comandeering and economic ruin vastly exaggerates the harm here. The best way for an abortion clinic to stay open is to not puncture too many uterii. Its got nothing to do with the chained protestors being carted off to jail or even the occasional supergluing of the locks.

[independent worm]

Dave W.

Scaring away actual clients by beating them up at the door, and additional potential clients by fear of assault, is economically harmful.

The fact is that certain people did conspire to use violence to scare away clients, intending to drive the clinics out of business.

The only issue is whether or not that constitutes a violation of RICO. And the resolution of that issue depends on how you define the required predicate act. The definition of extortion is being litigated. The basic facts about what happened, or their economic effect on the clinics, is not.

[joe]

grapenutx,

People affiliated with Operation Rescue have barged into offices and murdered people, committed acts of sabotage so seriously that they've rendered the buildings unusable for months, and organized months-long blockades of health clinics. The key word being "organized."

Uh, yeah, that's just like things getting out of hand at a single political rally. Exactly.

[Stevo Darkly]

And Bush is on the radio pounding the drums and he most boldly conflated 9/11 and Iraq again. Those who voted for this guy are anti-American.

Why do Americans who hate Americans who hate America hate America?

[Phil]

You can't ruin a business economically by commandeering its entrance, even if you are super lucky and manage to comandeer it for 4-6 hours.

You can if you make it the target of organized, repeated, ongoing protests of such a nature, to the extent that clients -- and employees -- will begin going miles and hours out of their way to find another clinic rather than be set upon by violent, harrassing protestors

[Daze]

If Howard Zinn and PETA are against it, I'm for it.

Does the author of a law get to pick and choose when it gets applied? If the law is too broad and has unintended consequences, re-write the law to make it more specific.

I applaud NOW for vigorously defending individual freedom and choice, even if their tactics here are questionable. Extremism in the defense of liberty is no vice, as the saying goes.

[Dave W.]

"You can if you make it the target of organized, repeated, ongoing protests of such a nature, to the extent that clients -- and employees -- will begin going miles and hours out of their way to find another clinic rather than be set upon by violent, harrassing protestors"

That sounds like an awful lot of people in jail before a clinic gets closed. So much so that my bullshit detector just started going off and I am calling it on this post.

Maybe clinics have had to go out of business because of heckling, but that ain't violence and it is a Constitutional right. Violence, on the other hand, tends to get prosecuted. I think you may be mixing these two different things up.

[Dave W.]

"The fact is that certain people did conspire to use violence to scare away clients, intending to drive the clinics out of business."

What violence are you talking about? Do you have a link or are we talking about hypothetical violence here?

If you are talking about ppl like Eric Rudolph or Paul Hill (? was that his name) or that shooter in New York state, then, like I said, yeah use RICO (although they don't seem to need it in *those* kinds of legit cases). However, if you are on some kind of slippery slope where chaining oneself to a door or putting glue in a lock is violence, then you have been drinking the Kool Aid.

[Hakluyt]

Dave W.,

I suspect the Seventh Circuit will get pounded on this one by the Supreme Court. The basic problem with the Seventh Circuit's reasoning, as some posters like thoreau have unwittingly hinted at, is that it scoops up into its purview all manner of state and local law that RICO was never intended to address. There are some important federalism concerns here along with the use of RICO in this way to stifle free speech.

[Phil]

Mr. Conspiracy Theory has suddenly found something he's not going to accept at face value, because it conflicts with one of his hobbyhorses? Quelle fucking surprise.

Well, I don't feel the need to go into depth to assuage Mr. I Never Provide A Cite's bullshit detector (which is pretty miscalibrated from what I've observed).

[joe]

Dave W., if your argument is that a raketeering case can not be brought against someone whose "muscle" relies on property damage and threats, you are sorely mistaken. Nice place you got here. It'd be a shame if somethin was to happen to it.

[independent worm]

Dave W.

The criminality and violence of Scheidler & Co's actions aren't disputed, even by them.

There is mention of some of the violent acts in the first SCOTUS decision in the case (from 1994) as well as the N.D. Ill. and 7th Cir. opinions that preceded it. There is also a voluminous record from the trial recounting them. Enough that 20+ violations of each of about 5 or 6 different acts were found.

The seventh circuit opinion only lists a few examples, as it tried to adopt a conciliatory tone (even dismissing all parties' attempts at defining what these "rescues" or "protests" or "invasions" were to be called); alluding only to the "voluminous" trial record. To give the reader a flavor of it, the 7th Cir. describes only the beating of a cancer patient, several assaults on staff, and physical invasion of the premises sufficient to constitute assault. The rest it leaves as a "you get the idea".

The 2003 SCOTUS opinion simply states that the criminality of respondents' conduct is conceded by respondents' counsel. There was no dispute about the bulk of the elements of extortion (threats, wrongful use of force, etc.); rather the dispute was limited only to whether property was "obtained" by the respondents within the meaning of the Hobbs act.

[independent worm]

Hakluyt, which part of the 7th circuit's "reasoning" do you think will get "pounded on" by SCOTUS?

Specifically, what reasoning do you think the SCOTUS will employ in place of it?