Thanks to the legal victory the National Organization for Women won last week, political protest in this country is in danger of becoming the equivalent of organized crime racketeering.
After 12 years of litigation that included one trip to the U.S. Supreme Court, NOW successfully sued Operation Rescue, the Pro-Life Action League and three of the anti-abortion movement's leaders by using a highly punitive federal law enacted originally to punish organized crime. One day soon, when all the cheering and self-congratulations die down, NOW and its allies may come to realize the cost of their victory. In the short run, the women's rights group may have defeated a tenacious opponent, but in the long run it has put all issue advocacy groups whose members participate in organized civil disobedience at risk of insolvency.
A Chicago jury found that the anti-abortion organizations and their leaders had engaged in 21 acts of extortion, including blockading clinic entrances and threatening physical violence. This pattern of "racketeering activity" made the activist groups and individuals liable under the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO. The jury awarded nearly $86,000 in damages, which will be tripled under the terms of the law. In addition, the suit was a class action on behalf of abortion clinics nationwide and women whose access to abortion services has been unlawfully interferred with by the defendants. That means these anti-abortion groups and individuals may be on the hook for damage claims by more than 900 clinics across the country.
There are two distinct problems with the use of RICO against political advocacy groups. First, Congress used broadly worded and vague terms to define what constitutes an illegal criminal enterprise. Political advocacy groups that use civil disobedience to affect change could easily fall within its definition. In fact, during its original passage, Senator Edward Kennedy expressed concern that it would be used by the Nixon administration against anti-war protesters.
Second, the kind of actions that may be considered "extortionist" often involve political speech. In this case, in addition to blocking clinic entrances and destroying clinic property _ all illegal acts that can be prosecuted under existing laws _ activists influenced patients not to enter the clinic by "intimidation" tactics such as sidewalk counseling, yelling, taunting, and following them as they entered the clinic. While nerve-wracking, this kind of in-your-face verbal affront is constitutionally protected.
It is true that acts of civil disobedience such as trespassing, impeding someone's movement on a sidewalk and grabbing his arm to get him to pay attention are all crimes and are not protected by the First Amendment. However, the use of RICO to punish these acts does excessive damage to the spirit of free expression.
NOW's successful use of RICO against anti-abortion groups has opened the opportunity for its use against other types of protesters. Polluters, exploitative employers, abusers of animals and all others who inspire opposition activists have been given a legal road map to put their adversaries out of commission.
Although the U.S. Supreme Court in 1994 ruled that Congress had not meant to limit the use of RICO to organizations with an economic motive and allowed NOW's case to go before a jury, last week's decision reinforces the danger of this legislation used in the political realm. Since the courts don't seem willing to put the brakes on its use, Congress should, by amending the statute to define a criminal enterprise as one that requires a profitmaking motive.
RICO was enacted to get at mobsters. But its reach keeps expanding. It has been invoked against pornographers, in securities lawsuits and now in the abortion wars. Unless Congress acts, there is no guarantee it won't be used again to snuff out advocacy groups that rely on civil disobedience to make their points.