It is time for Congress to review and revise the Racketeer Influenced and Corrupt Organizations Act, popularly known as RICO. When Congress enacted the legislation in 1970, it was intended, as its title suggests, to disrupt and punish racketeering—that is, the organized business of extorting money by intimidation, violence, or other illegal methods.
More than two decades later, the extraordinarily broad scope of the law is now posing serious problems with the constitutional requirement of due process. A law can be said to violate due process if it does not afford reasonable people an opportunity to know ahead of time that their conduct is prohibited by that law. Sometimes a court will strike down a law because it is found to be too vague. Examples of statutes that suffered from this weakness include a New Jersey statute against “gangsters” and a Florida ordinance against “loitering.”
A vague law is especially bad if it sweeps within its scope activity that is clearly protected in our constitutional order. It doesn’t help to say that the decision-makers in a RICO case can tell a racket or a corrupt organization when they see one, since this standard does not afford reasonable people the opportunity to know clearly and ahead of time that their conduct is impermissible. Congress tried to address this issue by requiring the proof of a predicate crime before invoking RICO. Nothing in the statutory history of RICO, however, suggests that the statute was intended to inflict serious damage upon social activists exercising their right to free speech. But this is precisely what RICO is now poised to do.
Joined by two abortion clinics, the National Organization of Women (NOW) has brought a RICO suit against Joseph Scheidler, founder of the Pro-Life Action League, two other leaders of his organization, and Operation Rescue, for their involvement in abortion protests. NOW aims to characterize such “rescues,” passive acts of civil disobedience, as “extortion,” one of the crimes that triggers the application of RICO. NOW has also tried to bolster this extortion claim with the charge that the defendants conspired to burn and bomb clinics as well as murder abortionists.
In a pre-trial ruling, the federal district court in Chicago rejected these claims as unfounded, but during the trial the court allowed the NOW attorneys to leave the jury with the impression that Scheidler and his colleagues are at least complicit in violence against abortion providers. The killings of Dr. David Gunn by Michael Griffin in March 1993, and of Dr. John Britton and volunteer escort James Barrett by Paul Hill in July 1994 are two such cases they cited. There is, however, no evidence whatsoever linking Scheidler to any violent act of this sort. But these criminal acts undoubtedly played a role in the deliberations of the jury in Chicago, which recently found for the plaintiffs and imposed treble damages against Scheidler and his codefendants. (Operation Rescue settled with NOW before the case went to trial). The appellate court must now focus on whether peaceful protest can be equated with extortion.
Extortion has a financial element. One thinks of a mobster sending a hit man to collect “insurance premiums” from a merchant who wishes to protect his plate glass. NOW argues that the defendants were profiting from their activities because they have received charitable donations from those who espouse their cause. But the solicitation and receipt of donations by an organization engaged in social and political advocacy are not the sort of economic motivation that usually triggers RICO. Donations are related to a charitable organization’s activities only incidentally: They are not the direct result of advocacy activities in the way economic gains are the direct product of traditional RICO crimes like mob extortion. Moreover, unlike enterprises clearly targeted under RICO, nonprofit organizations use their funds solely to further their programs and may not allow those funds to inure to the benefit of those who control the organizations. The appellate court must also decide whether charitable contributions to a not-for-profit organization suffice to prove the financial element required in an extortion case. Both of NOW’s views are extreme.
In 1994, when Scheidler was before the Supreme Court, only Justice Souter (joined by Justice Kennedy) focused on the danger to the First Amendment posed by applying RICO to social protest. Chief Justice Rehnquist ignored this aspect of the case in his opinion for the Court, which held that the RICO law was written so broadly that the case could proceed to trial. Nothing in the Court’s ruling in Scheidler prohibits Congress from rewriting RICO. In fact, this ruling should serve as an invitation for Congress to refine the statute. An amendment could tighten the requirement of proving an underlying predicate crime. But even if Congress does nothing else, it should certainly clarify that RICO has no application whatsoever to nonviolent peaceful assembly and free speech, however controversial.
Members of Congress take the same oath to support the Constitution that federal judges do. Under the sacred duty of that oath they too are bound to support both First Amendment rights and the guarantee of due process now jeopardized by the application of RICO to abortion protest. As Justice Brennan wrote in New York Times v. Sullivan (1964), our society is committed to the view that speech should be “uninhibited, robust, and wide open.” Vigorous protest against unjust laws has been one of the features of American life, from the revolutionary period through the abolitionist movement to the modern civil rights movements for minorities and women.
It is not that acts of civil disobedience go unpunished. On the contrary, dissenters in our republic (abolitionists, suffragists, and Vietnam War protesters, to mention only a few) have usually endured swift and sometimes brutal penalties merely for expressing their views (a practice we now recognize as unconstitutional), let alone for engaging in conduct that violates the public order (for which there is no constitutional defense). In addition, our system of federalism dictates that when acts of civil disobedience constitute offenses under state law, federal courts should be slow to construe federal laws as the appropriate vehicle for imposing sanctions. To do so is to impinge on the proper role of the states in punishing activity that offends the peace and dignity of communities.
There is and there ought to be a lot of room in the law between activity that is unqualifiedly protected under the First Amendment and activity that is severely punished under a federal statute in which Congress took aim at organized crime. The reach of RICO is now well beyond groups like the Mafia. This is so because the Court failed to articulate principled limits on RICO that would avoid turning the law into a weapon of vengeance against ideological adversaries on the burning political issues of the day.
Abortion is by no means the only hot-button issue in our society. Economic grievances by striking workers, animal rights protestors, and political expression by vulnerable minorities are all the subject of the day. But management does not need RICO, because it can stop a labor union from engaging in an unfair labor practice by prevailing on that claim before the National Labor Relations Board. Stores that sell fur coats do not need RICO to protect themselves from groups like People for the Ethical Treatment of Animals because they have state trespass laws to protect their property. And city officials do not need RICO as an additional weapon to bludgeon unpopular political activists because they can safely rely on neutral regulation of the time, place, and manner of speech to restrain conduct that threatens the public peace. In all of these instances, reliance upon RICO is needless and only threatens to weaken our public commitment to the protection of civil liberties. When inroads on free speech are made against abortion protesters, it is not only their right to free speech that suffers.
The ACLU understood this point when it filed a brief in the Scheidler case opposing the application of RICO to peaceful protest. One does not have to agree with all of the tactics employed by Operation Rescue or the Pro-Life Action League in order to conclude that RICO should not be applied to social activism concerning abortion or any number of other pressing issues best left to rigorous civil debate.
There must be more to the law than the simplistic and stark choice that NOW urges in the Scheidler case: fully protected conduct on the one hand and a federal felony with severe penalties under RICO on the other. It is hard enough for civil libertarians to sustain a coherent and vigorous defense of the voice of protest in this society, without adding the devastating effect of RICO to diminish or still that voice. The threat to civil liberties posed by the Scheidler case is real. The Court’s nonchalance is appalling. Now it is for Congress to clarify that it never meant for RICO to halt the centuries-old struggle for the soul of America.