A federal jury in Chicago recently ruled that three anti-abortion protest leaders violated the federal anti-racketeering statute; it awarded two clinics $85,926 in damages, which will be tripled; an award of hundreds of thousands of dollars of attorneys fees will also follow. No one who lives the 1st Amendment should now rest easily when they go to sleep.
Predictably, across the nation, abortion clinics and their allies–aided and abetted by such strange bedfellows as the American Civil Liberties Union–will be hauling peaceful anti-abortion protesters into court under the Racketeer Influenced and Corrupt Organizations Act. The lawyers make no bones about their strategy: to curtail the demonstrators’ free speech rights. The verdict, moreover, threatens all demonstrations, not just anti-abortion protests, whether animal rights or labor disputes.
The pro-abortion rights faction know full well that their lucrative, one-half-billion-dollar industry is being sharply curtailed by protesters’ consciousness-raising activities. Increasingly, discerning physicians are turning away from providing abortions, and concerned hospitals are shifting the dirty business to abortion mills. The protesters’ lawful activities include praying in front of clinics, picketing in the public right-of-way, and distributing leaflets to bystanders.
To be sure, a handful of extremists make false appointments, blockade the entrances to clinics, or otherwise trespass on clinics’ private property, not unlike the patriots who protested King George III’s tea tax or the abolitionists who demonstrated against the fugitive Slave Act during the 1850s.
No careful student of RICO’s text–presumably the best evidence of Congress’ 1970 intent–ought to agree with those courts that hold RICO applicable to abortion protests. Protest is not extortion. Extortion seeks to gain money, not bring about social change. RICO was drafted to give federal law enforcement an effective tool against complex criminal organizations, the Mafia or international drug cartels; it was also designed to permit private plaintiffs–businesses or individuals–to sue those who defraud them out of their life savings, such as Savings and Loan kingpins like Charles Keating or Wall Street swindlers like Michael Milken.
Obviously, few who desire to bring about meaningful social change will lightly risk their jobs, homes or bankbooks to join a group of protesters if they may be named in a malicious suit, have to face abusive civil discovery techniques, and be forced to pay the huge attorneys’ fees and costs generated by aggressive litigation. Such a weapon of terror against 1st Amendment freedoms was not what I was told to design by Congress when I was the staff counsel for the committee that drafted the 1970 law.
Typically, civil RICO litigation is greeted with hostility by federal judges when it is used–as it was designed to be–in commercial litigation. The courts dismiss more than half of such suits, often on the flimsiest of pretexts. On the other hand, that a handful of willful federal judges entertain abusive civil RICO litigation against abortion demonstrators attests to their zeal to twist the statute to reflect their own ideological predilections.
The clinics and their lawyers argue that the protesters are “extortionists,” no different from a Vito Corleone who uses a mob-dominated union to throw a picket line around a restaurant to extract an unlawful payoff from a helpless restaurateur. The clinics–and their allies on the courts–conveniently ignore that “extortion” is a larceny-type crime that requires not only that the victim lose property, but also that the perpetrator gain it.
The malicious destruction of property, as opposed to its theft by “robbery” or extortion, was not included among the “racketeering activities” Congress prohibited in RICO, precisely because liberals in the Congress in 1970 were deeply concerned that the powerful statue might be misused by the Nixon administration against Vietnam War protesters. The lawfulness of demonstrations was, therefore, wisely left to local trespass and injunctive laws, which are circumscribed by the historic limitations of the 1st Amendment.
How ironic it is that many self-proclaimed “liberals” want to abuse RICO to curtail protesters’ 1st Amendment rights! Imagine, if Dr. Martin Luther King Jr. had not been so tragically struck down by an assassin’s bullet in Memphis in 1968, he might be sued today as a “racketeer” for leading students in lunch counter sit-ins–a fate properly reserved for mobsters and con men, not civil rights leaders.
