On April 20, 1998, a six person jury in Chicago found Joseph Scheidler, founder of the Pro-Life Action League, and two other defendants guilty on twenty-one counts of extortion under the Racketeer Influenced and Corrupt Organizations Act (RICO). They are liable for treble damages totaling more than $240,000, to be paid to the various abortion clinics that brought the case. The implications of the case are not only chilling but potentially disastrous for the exercise of First Amendment rights in the United States.
The case began more than twelve years ago, when the National Organization for Women and two abortion clinics filed a lawsuit against Scheidler and several others, alleging that the defendants’ protests at abortion clinics interfered with interstate commerce. In 1989, Patricia Ireland, the new president of NOW, added the RICO count, charging that Scheidler et al. were engaged in an organized campaign of extortion for the “profit” of abrogating a “woman’s right to choose.” (RICO defines racketeering broadly to include extortion, bribery, fraud, and other crimes.) In 1991, the case was dismissed by the federal district court in Chicago on the grounds that RICO was not meant to apply to political protest. NOW appealed to the Seventh Circuit Court of Appeals, which upheld the dismissal.
The day after the 1992 presidential election, NOW appealed the dismissal to the U.S. Supreme Court. In 1993 the new Clinton administration joined as amicus curiae. The Court, in a unanimous decision, held that “nowhere in [RICO’s] definition of `enterprise’ or ‘pattern of racketeering activity’ is there any indication that [a profit] motive is required.” In other words, the Court allowed the case to go forward on the grounds that RICO is not clear as to whether racketeering is strictly an economic activity—for example, the Mob muscling shopkeepers to pay protection money—or can also be an activity that negatively affects protected commerce.
On remand to the trial court, the question was whether Scheidler and the Pro-Life Action League—and, by extension, all pro-life protesters—seek to “affect” the commerce of abortion through intimidation, a violation of RICO, or whether their actions are protected by the First Amendment as legitimate protest. To prove their case, NOW had to show that Scheidler intimidated potential abortion “clients” with the express purpose of discouraging the exercise of a “woman’s right to choose.” In a trial in which NOW lawyers continually equated Scheidler’s trespassing activities with the bombing of abortion clinics and the shooting of abortion providers, but in which the defendants were prohibited from presenting evidence of their peaceable protest activities, the jury found Scheidler and the other defendants guilty.
What are the implications of this decision? First, NOW v. Scheidler has created outrageously prohibitive sanctions for what are essentially minor violations of law. Trespass, for which Scheidler was found guilty and given a $50 fine in the incident that sparked the suit, is now a federal crime for which a defendant is liable for treble damages—if that trespass is motivated by a desire to impede activities the defendant finds objectionable. Second, the decision throws into jeopardy the entire esteemed American tradition of civil disobedience in the service of higher natural law principles. Third, it raises this question: If trespass or other misdemeanors are all that are required to prove extortion, why precisely does peaceful protest not “affect” the protected commerce of abortion? If Joseph Scheidler’s trespass and intimidating demeanor (one NOW witness noted his height and manner of dress as evidence of such intimidation) are sufficient to provoke others to commit murder, why does not all peaceable protest do the same?
G. Robert Blakey was the chief counsel to Senator John McClellan in 1970. He is widely recognized as the principle draftsman of RICO and in 1993 he argued Scheidler’s case before the Supreme Court. In the following article, he recounts RICO’s history and shows how it has been misapplied to political protest. Edward McGlynn Gaffney Jr. is a professor of law at Valparaiso University. In his piece, Gaffney explores the question of the vague use of “extortion,” and how such an interpretation threatens the exercise of First Amendment rights.