Since a federal jury last week returned a verdict in favor of the plaintiffs in the case of National Organization for Women vs. Scheidler, some have voiced legitimate confusion about its potential impact on free speech and the 1st Amendment. Others have cried the sky is falling, intentionally blurring the line between protected civil disobedience and illegal acts of violence–implying that overzealous protesters will now be characterized as racketeers and non-profit organizations with noble intentions will be vulnerable to hefty monetary penalties.
Free speech advocates and civil disobedients need not be alarmed. The jury rightly saw the difference between illegal conduct, such as arson and bombing–or the threat of those acts–and protected free speech. Any concerns involving the 1st Amendment are well taken by NOW and the health care clinic plaintiffs. The point is not lost on us that women, or for that matter, any other marginalized segment of our society, would be powerless without the 1st Amendment.
NOW feels the defendants were shameless in their attempt to pervert the 1st Amendment. Our right of free speech, certainly one of our most treasured rights, does not exist in a vacuum. Instead, our freedom of speech co-exists with other fundamental rights, including our property rights and our right to reproductive health care. Reason and the Constitution tell us that every right and privilege we possess has its limits.
When an anti-abortion extremists, like Joseph Scheidler, of the Pro-Life Action League, uses words to make clinic workers fear for their safety and women fear keeping their doctor appointments, he exceeds the boundaries of free speech. While sidewalk counseling, leafleting and protests are protected free speech–threats, intimidation and the advocacy of arson and bombing are not.
None of the peaceful protest strategies just mentioned were at issue with NOW vs. Scheidler and, accordingly, none have been jeopardized by the jury’s decision. The reason the lawsuit was brought is that the defendants refused to confine themselves to these lawful acts which do not trample on the rights of women to freely make reproductive health care choices.
And a national injunction is not only necessary, it is long overdue. Violence at clinics has been ongoing since the passage of the Freedom of Access to Clinic Entrances Act in 1994. One out of four clinics still experiences violence, and the level of the violent acts has escalated from physical blockades, harassment and intimidation to acid attacks and murders. Last year, an off-duty police officer was killed in a bombing incident at an Alabama clinic.
The campaign against reproductive freedom, as pronounced by Joseph Scheidler, was one of fear and pain and now he, and the co-defendants, Operation Rescue, the Pro-Life Action League and others must pay the price for an illegal, nationwide conspiracy and campaign of violence.
Lastly, some have criticized the use of the federal Racketeer Influenced and Corrupt Organizations Act as egregious though the U.S. Supreme Court ruled unanimously that the law could be applied against the defendants in this case. RICO allows private plaintiffs to seek monetary damages from groups engaged in a pattern of criminal activity, which is defined as only two or more felony crimes.
Courts and juries are given the responsibility to make certain that the alleged activities rise to the level of crimes required by RICO, namely serious felonies as opposed to orderly protest activities. The jury found, after a seven week trial, that the defendant had committed more than three dozen acts of physical extortion, based on threats or actual force, to deprive clinic doctors and patients of their right to engage in lawful business and to seek medical services.
Lead attorney Faye Clayton had the duty to zealously represent NOW to the best of her ability and she did so brilliantly by using all the tools available and best suited for achieving our goal. While ultimately a matter of legal strategy, judging by the plaintiff’s complete victory in this case, the attorneys involved clearly made the right choice in using RICO.
With this verdict, NOW wins a permanent injunction against the defendants’ blockades, extortion, force and violence. RICO allows clinics to petition for triple damages and women are guaranteed to their constitutional right to control an abortion. Justice prevailed, and it will continue to do so on a case by case basis in a society that is quite capable of discerning the difference between civil disobedience and intolerable illegal conduct.
