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Dissent can be silenced with a lawsuit

Congress wrote an intentionally vague and loosely worded law in 1970 as a tool to combat organized crime _ the Racketeer Influenced and Corrupt Organizations Act, or RICO. The American legal system being what it is, RICO was soon put to more imaginative uses. Its civil provisions _ triple damages and the opportunity to smear somebody as a racketeer _ made it a favorite among plaintiffs' lawyers.

Soon tenants were suing "racketeer" landlords under RICO, and divorcing wives were suing their "racketeer" husbands. And a chorus of voices, left and right, warned that it was just a matter of time before someone managed to use RICO against political protesters.

That has now happened, but because the target group _ anti-abortion demonstrators _ is out of favor with civil liberties groups and the chattering classes, the chorus has been mostly silent. One who did speak up, Harvard law professor Charles Ogletree, said this use of RICO "is unprecedented and raises serious questions about chilling important opportunities for political protest. This stretches the law beyond its logical limits."

The political stretching was accomplished by the National Organization for Women and two abortion clinics in a 12-year civil suit against anti-abortion activists. Recently a U.S. District Court jury in Chicago decided that two anti-abortion groups and their leaders had engaged in a conspiracy to commit extortion and threats of violence against those operating or patronizing abortion clinics.

Lethal violence, such as arson and bombing, was not an issue in this suit. The anti-abortion activists were accused of making threats, blocking clinic doorways, putting glue in door locks, occasional grabbing and pushing and pulling the hair of doctors or patients, and "creating an atmosphere" that made arson and bombing possible.

All lawbreaking deserves punishment, but RICO allows these mostly low-level offenses to be lumped together and seen as a nationwide conspiracy to intimidate abortion doctors and patients. Congress specifically intended to make conspiracy easy to demonstrate in mob cases _ under RICO, two violations over a period of 10 years, even relatively trivial offenses, can be defined as a pattern of racketeering activity. But using this easy standard against political protesters should raise eyebrows. When combined with the severe threat of triple damages, it invites the use of the courts as arenas to punish political enemies.

One of the drafters of RICO, Notre Dame law professor G. Robert Blakely, warns that under RICO, a minor illegality _ a bit of pushing and shoving, or a rock thrown through a window _ can transform a constitutionally protected demonstration into an attempt at "extortion."

The concepts of "extortion" and "obtaining property" used in RICO cases come from another law, the Hobbs Act, and courts have constantly broadened their meanings. "Property" now means anything of value, such as the right of a store or clinic to solicit business or an individual's right of access to a clinic, so even momentary interference, such as blocking a doorway, can be deprivation of property or extortion.

RICO could easily have been used to quell the anti-war protests of the 1960s, as the American Civil Liberties Union noted years ago. But thanks to the ever-broadening language of RICO decisions, it could also be used against non-violent protests and simple sit-ins. If RICO had been written a decade earlier, segregationists would surely have used it to cut the legs out from under the civil rights movement. In the 1960 Woolworth lunch-counter sit-in in Greensboro, N.C., the "property rights" of Woolworth to attract paying customers would have been seen as violated by conspirators who tied up the counter seats for months.

In the Chicago anti-abortion case, the judge's instructions to the jury stressed that property rights included the right of women to use the clinics and the right of clinic operators to provide services free of fear, including "fear of wrongful economic injury." Surely Woolworth customers and owners would have qualified for the same property rights, and the "fear of wrongful economic injury" was beyond dispute. Woolworth lost $200,000 during the sit-ins. That's why it capitulated.

It takes little imagination to see how almost any protest group could be hammered by RICO, from Greenpeace and nuclear protesters to Cesar Chavez's grape boycott (which certainly induced the growers' fear of wrongful economic injury). This has been clear for years. In 1970, the ACLU opposed RICO as being "one of the most potent, and potentially abusive, weapons for silencing dissent."

Since then, the ACLU's voice has been more muted and ambivalent, mostly because the group's feminist allies argued hard that RICO was an ideal weapon to use in the abortion wars. The ACLU really ought to make an effort to recapture the clarity and principled position it staked out in 1970. Either you believe in First Amendment rights, or you don't.

Universal Press Syndicate