Late Edition: Muffling the Constitution

Americans complain like no other people on earth, confident in the conviction that the Constitution, if not God himself, guarantees their right to do so. When something really bugs us, we join others of like mind to alter or remove the object of our discontent. Political protest has been a grand theme of our history since at least the Boston Tea Party, and thanks to the First Amendment’s right of “peaceful assembly,” has become the sine qua non of every significant political movement from abolitionism and union organizing to the civil rights, antiwar, and anti-abortion demonstrations of more recent years.

Those on the receiving end of protest will typically hunker down behind legal barricades, opposing both the merits and the tactics of the protestors. As both sides reach for lawyers, the matter goes to court. Ninety-nine out of 100 times the right of protest is vindicated. It is an old story, and its lessons are celebrated whenever Americans recall their history as a freedom-loving people.

The traditional vindication of the constitutional right of protest, however, now faces a new and ominous threat. Gradually but inexorably, abortion protestors are being denied First Amendment rights enjoyed by everyone else. To those who follow the Supreme Court’s chop-logic on the abortion question, this will come as no surprise. As Justice Sandra Day O’Connor noted in 1986, the Court’s abortion decisions had “worked a major distortion in … constitutional jurisprudence.” It is “painfully clear,” she went on, “that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Without putting too fine a point on it, Justice O’Connor was accusing her colleagues of imposing a double standard: When it came to the consideration of abortion cases, the normal rules of judicial review were twisted or suspended.

As Justice Antonin Scalia presciently warned in a 1993 abortion protest case, the Court’s arbitrariness now threatens to engulf even well-settled standards under the First Amendment. In late April, in NOW v. Scheidler, a Chicago jury found three anti-abortion protestors in violation of the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO. The law was enacted in 1970 to aid prosecutors in their pursuit of Mafia-type enterprises, declaring such entities to be criminal conspiracies and imposing legal liability on all those “associated” with the enterprise—whether or not they had direct responsibility for the illegal acts of their “associates.” RICO makes sense when applied to organized criminal undertakings, but none whatsoever when applied to acts of political protest. Yet that is precisely the strategy being employed by National Organization of Women in its well-financed efforts to silence anti-abortion demonstrators.

When the Scheidler case first came to the attention of the Supreme Court in 1994, the justices ruled that RICO had a far broader reach than those who enacted the statute ever dreamed of and, specifically, that it was not limited to those seeking economic gain. After remand to federal district court and a lengthy trial, the jury delivered its verdict, awarding $85,000 to the plaintiffs (which, under RICO, can be trebled by the judge) and setting the stage for a permanent injunction that (again because of RICO’s octopus-like reach) could in theory cover virtually every organized anti-abortion protest in the nation.

The implications of this jury trial, in short, reach far beyond the immediate facts and parties. The verdict is a signal victory for NOW and the proprietors of abortion clinics, who have labored mightily for years to stigmatize pro-life demonstrators as so many hate-filled proponents of violence. Not content with court decisions making abortion a constitutional right, NOW and its allies seek to insulate the barbarity of abortion from the searing scrutiny and corrective political action energized by public demonstrations. The RICO verdict threatens criminal liability and financial ruin against anyone, however pacific, who is found to be “associated” with acts or threats of physical violence committed by others. Such a theory of the First Amendment would have choked the civil rights movement in its infancy and turned Martin Luther King Jr. and his courageous followers into bankrupt federal felons.

King and his movement escaped that fate largely because federal courts energetically protected their constitutional rights. Will judges grant analogous protection to pro-life demonstrators, or will the First Amendment be sacrificed to protect the abortion agenda being so aggressively advanced by the judiciary? This remains to be seen. But as the Chicago case makes its way on appeal, let there be no mistake about what is at stake: nothing less than the ability of free citizens to protest not only immoral policies, but the increasingly imperial manner in which the judiciary justifies them.

Michael M. Uhlmann


Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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