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By ROBYN E. BLUMNER
© St. Petersburg Times, published February 11, 2001
If past is prologue, liberal public interests groups should start circling the wagons because John Ashcroft's Justice Department may soon be gunning for them. For a man who swore up and down before the Senate Judiciary Committee that he would enforce the law as written, Ashcroft has previously interpreted the law in some pretty creative ways to punish those with whom he disagrees.
Ashcroft personally opposed the passage of the Equal Rights Amendment to the Constitution and used his power as attorney general of Missouri to attack its proponents. In 1978, he sued the National Organization for Women under federal anti-trust laws because the group had helped organize a nationwide convention boycott of states, including Missouri, that had failed to ratify the ERA.
Yes, you read it right. NOW's attempt to pressure Missouri legislators to make the legal equality of women part of the nation's seminal document, was Ashcroft's Standard Oil.
In his district court filings, trust-buster John claimed NOW's consumer boycott of Missouri and its encouragement to other organizations to do the same constituted a "restraint of trade" in violation of the Sherman Anti-Trust Act. He also threw in a state torts claim against NOW, alleging the group had intentionally harmed Missouri economically without justification.
Ashcroft's tortured reading of the law didn't sway U.S. District Court Judge Elmo Hunter and Ashcroft lost again before the 8th U.S. Circuit Court of Appeals. The judges told him that the anti-trust laws weren't intended by Congress to be used to limit political, non-commercial concerted activity and to do so would violate the First Amendment. Even the St. Louis Post-Dispatch was against him, editorially urging him to respect NOW's free speech rights. But Ashcroft didn't care. He wouldn't give up the crusade and appealed to the U.S. Supreme Court, where the justices refused to take the case.
Imagine, though, if Ashcroft had prevailed on this anti-liberty jag. Organizing consumer boycotts against tuna companies for the netting of dolphins, clothing labels for use of sweatshop labor, and cosmetic companies for testing on animals would be illegal. Refusing to buy a product because of a disturbing corporate practice and encouraging others to do the same -- illegal.
Ironically, the boycott-crazed Religious Right would have been one of the biggest losers, stripped of one of its most effective tools. Seven years or so after Ashcroft's attempt to shut down NOW's strategy of "economic tyranny" (his words), the Tupelo, Miss.-based American Family Association successfully used a boycott to pressure 7-Eleven stores to stop selling Playboy and Penthouse. At around the same time the group also launched a boycott against Holiday Inn to get the hotel chain to drop in-room access of X-rated videos. And the Southern Baptists are now "biblically boycotting" the Walt Disney Corp., because it treats gay employees even-handedly and allows gay groups to enter its theme parks.
Wonder if Ashcroft has a problem with these collective actions?
Ashcroft's apparent distain for freedom of speech and association aside, his willingness to use any law at his disposal to defeat a progressive group agitating peaceably for social change takes a page from the darker moments in our history. Anti-trust laws were once used by union-busting companies to try to prevent workers from organizing; and in Southern states, the government and private businesses used state laws in an attempt to undermine black boycotts and maintain segregation's grip.
In two cases that went to the U.S. Supreme Court, the NAACP was sued by the state of Alabama and a hardware store in Mississippi for organizing economically harmful boycotts in protest of Jim Crow laws and practices. In both cases the NAACP won.
Ashcroft's attack on NOW fits easily on this list of shame.
It shouldn't go without mentioning that there were many organizations in the mid-to-late 1970s boycotting states that were anti-ERA. NOW had actually come to the effort late, in 1977. By that time, according to Judge Hunter, the League of Women Voters had adopted a resolution calling on the national political parties not to hold their conventions in states that had failed to ratify the ERA. And numerous organizations, including the National Education Association and the American Association of University Women, declared they would not hold a convention in an unratified state. Hunter noted that some of these groups "took active steps to communicate their decisions and to urge similar action by other groups."
But Ashcroft didn't sue the League of Women Voters or any other group along with NOW; he chose to sue NOW alone. Picking on child-care-using, irreligious, loudmouthed, liberated women from the North, as NOW members were viewed at the time, played well in Missouri, and Ashcroft knew it.
Now that he's got the top law enforcement spot in the nation, it's anyone's guess whom he'll go after next. But those in the public interest community should keep checking their backs.