Anti-abortion racketeers?

On the first Monday in October, the Supreme Court opened its new term. As with any shift in the Court's personnel, the retirement of Justice Byron White and the appointment of Justice Ruth Bader Ginsburg to replace him has Court watchers off and running looking for clever things to say about her. Each detail of her decisions will undoubtedly come under the intense (which is not always to say careful) scrutiny of the pundits, in order to place her conveniently into a facile category that will enable them to predict the outcome of the Court's docket.

Sometimes the pundits draw conclusions larger than the facts warrant. For example, as an advocate many years ago Ginsburg successfully litigated several equal-protection cases dealing with gender discrimination before the Court on which she now sits. It should be perfectly obvious from this and other things known about Justice Ginsburg that she will be sensitive to women's issues. But it does not necessarily follow, as Time magazine reports (October 4, 1993), that she will cast a decisive vote in National Organization of Women, Inc. v. Scheidler, to hold that the Racketeer-Influenced Corrupt Organizations Act (RICO) may be applied to Operation Rescue for its repeated acts of civil disobedience at abortion clinics.

One does not have to agree with Operation Rescue tactics in order to reach the conclusion that the Rico law should not be expanded to sweep in the activities that Operation Rescue followers engage in. For example, I wrote a brief amicus curiae on behalf of several organizations that engage in social activism relating to animal rights - including People for the Ethical Treatment of Animals and Feminists for Animal Rights - opposing the broad reading of Rico that the National Organization of Women (NOW) has urged the Court to adopt in this case.

This brief adopts no position on the underlying issue of abortion in the Scheidler case. Some members and supporters of these organizations strongly support broad freedom of choice for women who seek abortion, and some strongly support unborn human life as at least equal in dignity to the lives of all the animals, large and small (from whales to sea lion pups), that they seek to protect.

If abortion is not the meeting ground for these activists, what is? The answer is the fear that allowing federal courts to apply the stiff sanctions of the Rico law to acts of civil disobedience such as those engaged in by Operation Rescue could have disastrous consequences for civil liberties in this country.

To do so, say these organizations, would constitute an unwarranted excursion into political and social advocacy and dissent not targeted by Congress when it enacted the Rico statute. It would have a strong chilling effect on activists who would be willing to engage in acts of civil disobedience if they might otherwise bring only minor sanctions in state courts, but who would rightly think twice about violating the federal Rico statute. Social dissent, including civil disobedience, plays such an important role in shaping our society that the judiciary should not expand Rico to apply to such activity without a clear mandate from Congress to do so.

It is not that acts of civil disobedience go unpunished. On the contrary, dissenters in our republic (from the abolitionists to the suffragists to the Vietnam War protesters) have usually suffered swift and certain penalties for their conduct. But our system of federalism dictates that when the acts of civil disobedience constitute offenses under state law, federal courts should be wary of construing 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 against the peace and dignity of their 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," but the Court can articulate principled limits on the use of the federal government to avoid turning the federal courts into a forum for vengeance against ideological adversaries on the burning political issues of the day.

Even if Congress were to amend Rico expressly to confer jurisdiction upon federal courts over conduct such as that complained of in the Scheidler case, there would still be issues of constitutional limits on such an act if it were to chill protected expression or activity. But this case does not require the Court to strike down an act of Congress for the simple reason that it does not now have such a statute before it. All that is necessary is that the Court decline to accept the invitation of now to read the statute as expansively as they would like the Court to do.

Since the case began six years ago, now has advocated that they did not need to show that the acts of the abortion protestors were motivated by economic gain. Lower federal courts have disagreed, holding that economic motivation is an essential element of a Rico Claim, and dismissing the suit accordingly. Before the Supreme Court now is arguing that they should nonetheless be allowed to proceed with their suit because they alleged that the defendants were "profiting" from their activities.

What now apparently means by this claim is that Operation Rescue has 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 should not be considered evidence of the sort of economic motivation that triggers Rico. Donations are related to an organization's activities, if at all, 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.

Finally, Rico should not be applied to an organization that advocates radical social and political change without differentiating members of the organization who know and approve of illegal tactics from members who are innocent of those tactics.

On this point the animal-rights activists enjoy the support of the American Civil Liberties Union, which also urged the Court - in a separate brief on behalf of neither party - to go slow before it allows Rico charges to be leveled against the abortion protestors.

There must be more to the law than the simplistic and stark choice that now urges in the Scheidler case, between fully protected conduct on the one hand and a federal felony offense 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. If Congress really means to do that to the struggle for the soul of America, let Congress do it, and not the Court.