Mouths Sued Shut

Making racketeers out of protesters

Tendentious terminology has always been a problem in the abortion debate. People who support restrictions, for example, call themselves "pro-life," implying that their opponents are "pro-death." Now a federal jury in Chicago has resolved this semantic difficulty. The correct term for anti-abortion activists, it turns out, is racketeers–or, if you prefer, extortionists.

That was the upshot of a class action lawsuit filed 12 years ago by two abortion clinics and the National Organization for Women. NOW argued that Joseph Scheidler of the Chicago-based Pro-Life Action League and three other prominent activists had violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by encouraging anti-abortion protests.

Under RICO, Scheidler et al. are liable for triple damages, and abortion clinics around the country are expected to demand compensation (mostly for extra security costs). If the verdict is upheld and other groups copy NOW's strategy, many forms of political activism could become prohibitively expensive.

Since RICO was intended to fight organized crime, applying it to anti-abortion activists required some creative definitions. According to my dictionary, extort means "to wrest or wring (money, information, etc.) from a person by violence, intimidation, or abuse of authority." Yet NOW maintained that anti-abortion protesters were guilty of extortion, a "predicate act" under RICO, when they blocked the entrances of clinics. Exactly what they wrested is a little hazy.

Similarly, my dictionary defines racket as "an organized illegal activity, such as bootlegging or the extortion of money from legitimate business people by threat or violence." On the face of it, anti-abortion protests don't fit into this category very well.

But Susan Hill, who owns the two clinics that sued Scheidler and his colleagues, explained that appearances can be deceiving: "In our case, they weren't coming for the bag of money–but to force us to close down by blockades or threats. For us, working in the clinics, it was racketeering." In 1994 that argument got a boost from the U.S. Supreme Court, which unanimously ruled that an "enterprise" can be subject to RICO even if it's not aimed at making money. But in a concurring opinion, Justice David Souter said courts should "bear in mind the First Amendment interests that could be at stake," since "RICO actions could deter protected advocacy."

In fact, RICO actions against political groups are intended to deter advocacy. Protesters who use force to prevent abortion–whether through blockades, vandalism, or violence–have always been subject to arrest under state law. Four years ago, just in case the existing prohibitions against trespassing, disorderly conduct, and assault were inadequate, Congress passed the Federal Access to Clinic Entrances Act.

So RICO is not needed to punish activists who violate other people's rights. RICO is needed to punish activists, like Scheidler, who don't commit crimes but who plan and participate in protests where other people do. NOW argued that Scheidler's writings and public comments implicitly condoned illegal behavior. But any vigorous condemnation of abortion–say, equating it with murder–could be said to encourage lawlessness.

Ann Rose, a women's health consultant who maintains the Web site Abortion Clinics Online (www.gynpages.com), reports receiving the following message: "I think anyone that promots [sic] the destruction and death of human life does not deserve their own life. Get your crap off the web." Though Rose calls this a "death threat," it seems more like a strongly worded protest. Still, some people have killed for this cause, so activists might reasonably worry that expressing such opinions would invite a RICO lawsuit.

Since every protest movement includes hotheads who get carried away or extremists who are prepared to break the law, NOW's successful use of RICO has sweeping implications. The law could be used against animal rights activists, environmentalists, union members, supporters of racial preferences–even feminists.

No less an authority than G. Robert Blakely, the Notre Dame law professor who wrote RICO, warns that applying it to protesters will have a chilling effect on speech. "Everybody who loves the First Amendment has got to sleep uneasily tonight," he said after the verdict.

Even the people who brought the lawsuit seem to have qualms about it. "I don't like RICO; I think it's a terrible statute," NOW attorney Fay Clayton told The National Law Journal during the trial. "But as long as it's there, we should use it." Given RICO's potential to squelch dissent, that sort of moral reasoning is not exactly reassuring.

This article was originally distributed by Creators Syndicate as Jacob Sullum's column for the week of May 6.