RICO needs to be reined in
© St. Petersburg Times
published December 15, 2002
No one is suggesting that the rabid group of anti-abortion protesters that hounded abortion clinic staff and blocked clinic entrances in the 1980s were acting within the law. From trespass to assault, there were a number of state statutes violated by people associated with the Pro-Life Action Network, a loose affiliation of anti-abortion groups. But a case argued on Dec. 4 before the U.S. Supreme Court that seeks to hold these protesters liable under a federal racketeering statute has the potential to undermine political activism associated with even the mildest civil disobedience. The justices are being asked to decide whether methods similar to those used by civil rights activists who sat at "whites-only" lunch-counters in the 1960s could be considered acts of racketeering.
The case, Scheidler vs. the National Organization for Women, has been kicking around the courts since 1986. At that time, the National Organization for Women sued Joseph Scheidler and other anti-abortion leaders under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). The women's rights group alleged that the organized clinic blockades and the harassment of doctors constituted a pattern of extortion, by essentially shutting down clinic operations and denying clinic owners and workers the right to conduct business.
The suit came well before Congress enacted the Freedom of Access to Clinic Entrances Act, which made it a federal crime to interfere with access to reproductive health centers, and took the protection of abortion clinics out of the sole hands of local law enforcement. Since the passage of FACE, problems at the nation's abortion clinics have lessened.
Despite the intervening law, the Scheidler case is still active litigation and has now made a second trip to the U.S. Supreme Court. The first time, the question before the court was whether RICO, a highly punitive statute that provides for treble damages and was enacted to address the problem of organized crime, can also be applied to ideological or political groups such as abortion protesters. In 1994, the court said that criminal enterprises can be subject to RICO even when the motive is non-economic in nature. The Scheidler case was then returned to the district court where a jury awarded substantial damages to two abortion clinics, and a nationwide injunction was imposed on the defendants.
The appeal argued earlier this month before the high court asked two questions: First, whether private litigants, as opposed to the government, may seek injunctive relief under the civil RICO statute. And second, whether the Hobbs Act, the federal extortion statute, applies when no property is actually taken, but when demonstrators deny owners the use of their property.
Political groups such as People for the Ethical Treatment of Animals and School of the Americas Watch submitted friend-of-the-court briefs cautioning against a broad interpretation of the Hobbs Act. PETA notes in its brief that its supporters "occasionally engage in nonviolent civil disobedience to call public attention to laws or practices that they find objectionable." And according to PETA's brief, it was sued under RICO for its "investigation and exposure of animal cruelty at a New Jersey animal testing laboratory even though the United States Department of Agriculture fined the lab $50,000 for federal law violations found as a result of PETA's complaint."
RICO is a powerful tool in the hands of private business interests. The damage provisions can easily bankrupt a small group of concerned citizens who seek to make a public point of corporate polluters or other nefarious business practices. Minor violations of law on ideological grounds should not be treated as the equivalent of mob violence and extortion. For the sake of our democratic traditions, RICO should be reserved for dangerous criminals, not ideological protesters.
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