A real racket: Now's scheme to silence abortion protest.

On February 27, the day after the Supreme Court handed down its 8-1 decision overturning a federal racketeering conviction of anti-abortion protesters, I happened to get on the New York subway with one of the West Side's more repugnant prolife demonstrators. A fixture in front of a women's health clinic not far from Lincoln Center, this elderly man dresses up much like a carnival vendor. He wears--perhaps he sells--all sorts of paraphernalia attached to his fly-fishing vest: tiny baby dolls, flags with slogans, miniature surgical implements. He carries poster-size photographs of mangled fetuses, which he pushes combatively in front of women entering or leaving the clinic. He is clearly a little unhinged, but not unsophisticated. That day he was waving a new handwritten poster emblazoned, "The Supreme Court Has Set Us Free."

He pretty much had it right. The Court's ruling in the seventeen-year-old case of the National Organization for Women v. Scheidler was indeed a solid victory for protestors--of all stripes--and a crushing defeat for NOW. Oddly, it has received almost no attention in the mainstream press.

With its origins in the volatile blockades and boycotts of the 1980s, NOW's class action suit against the Pro-Life Action Network (PLAN) had been unsettling from the start. Convinced that PLAN headed a national conspiracy of anti-abortion terrorists, NOW hit on the daring legal strategy of suing them under the 1970 federal Racketeer-Influenced and Corrupt Organizations Act (RICO), originally targeted at organized crime. No one had ever before thought of using RICO against a social-protest movement.

NOW had long sought to bar protestors, whom they called thugs, from destroying property or menacing physicians. Fair enough, but a RICO suit functions on an extraordinarily punitive level. Not the least of RICO's many advantages is that it wields triple damages against convicted defendants. A victory would not only enrich NOW directly and pay its immense legal fees, it would also put the financially strapped protesters out of business. For Pro-Life Action League executive director Joseph Scheidler, who had pledged his house as collateral against potential damages, a loss would mean losing hearth and home as well. The criminal charges against PLAN at first looked immensely serious--some 121 violent crimes, according to NOW. At trial in 1998, NOW reduced these to 31. The jury found 4. Even these were vague, says PLAN defense lawyer Thomas Brejcha. "Out of thousands of nationwide protests over twelve years," he says, "jurors found just unspecified, minor acts of violence by unknown actors merely 'associated' with the defendants through a loosely affiliated coalition." That's the beauty of RICO--conspiracy charges can target anyone deemed to be within the criminal enterprise. The jury assessed a damage award of $85,000--to be tripled--against Scheidler, PLAN, and other loosely affiliated protestors. In 2001 a federal appeals court in Chicago upheld the award.

The appeals court also upheld the lower court's permanent national injunction, which had prohibited PLAN from trespassing at abortion clinics anywhere in the country. While the government has always been able to seek injunctions under RICO, NOW's innovation was asking that injunctive relief be granted to it as a private party.

The NOW strategy had one enormous inherent disadvantage: RICO punishes racketeering, which the law defines as the organized business of extorting money by intimidation, violence, or other illegal methods. In claiming that sit-ins were extortionist, NOW was seeking to prove that anti-abortion protesters, who were mainly indistinguishable in their behavior from NOW allies such as civil-rights protestors, were in fact racketeers. To prove racketeering, NOW invoked the 1946 Hobbs Anti-Racketeering Act, which outlaws obstructing commerce "by robbery or extortion."

NOW essentially argued that the owners of the abortion clinics were being hurt financially (extorted) by blockades of their businesses--a peculiarly ironic argument to be made against protestors who understood the business of the clinics was murder. Yet in what sense were even the most aggressive anti-abortion protestors robbing or extorting anyone? In oral arguments before the Supreme Court, NOW attorney Fay Clayton asserted, "If my client, NOW, went up to the Augusta golf course to tear up the greens, that would be extortion." No, said Justice Antonin Scalia, that would be a crime, but "extortion is just not the crime involved."

This became the crux of the matter for Chief Justice William Rehnquist who, writing for the majority, said that extortion means "the obtaining of property from another" by force--and that the protesters had not "obtained" the clinics' property. To obtain property means to acquire it, and not simply to deprive its owner of its use. The many civil libertarians, antiwar activists, and animal-rights organizations that had filed friend-of-the-court briefs on behalf of the anti-abortion protesters gave a deep sigh of relief. They are not out of danger yet. Because the Court rejected the underlying RICO argument, it did not have to address the matter of whether private parties can get injunctive relief--a tool that could destroy political protests as we know them.

Of the many odd bedfellows accumulated by NOW over the past seventeen years, one of the more interesting has been the Bush administration. Saying there was no First Amendment issue, U.S. Solicitor General Theodore Olson argued that the racketeering law was a proper vehicle for going after protesters. Justice Anthony Kennedy reprimanded him: "There's always a First Amendment implication in a protest case." When pushed hard by the supremes, Olson admitted that his definition of racketeering might have applied to the sit-ins of the civil-rights movement. Defense attorney Brejcha did not think the NOW-Bush administration alliance was strange. He points out that the administration wants the widest possible prosecutorial authority for RICO, which has become the major federal attack mechanism against white-collar crime.

Even when directed only at gangsters and drug dealers, the vagueness of RICO's conspiracy elements had long unnerved many civil libertarians. When directed at protesters exercising their First Amendment rights or engaging in peaceful civil disobedience, RICO should have unnerved us all. In her concurring opinion, Justice Ruth Bader Ginsburg said the Court was "rightly reluctant...to extend RICO's domain further." The Court has served us and the First Amendment well.

Julia Vitullo-Martin writes frequently for Commonweal, the Wall Street Journal, and other publications. She is working on a book on the American jury and criminal law.