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Anti-racketeering law can't be used on demonstrators

Thursday, February 27, 2003

By Dennis B. Roddy, Post-Gazette Staff Writer

The U.S. Supreme Court ruled yesterday that lower courts improperly allowed the use of federal anti-racketeering laws against abortion protesters -- a decision with broad implications for demonstrators of all types.

In an 8-1 vote, the court said a series of sometimes violent protests at clinics by members of the Pro-Life Action Network did not amount to extortion, one of the offenses used to build a case against them under the Racketeer Influenced and Corrupt Organizations Act, known as RICO.

The ruling "makes civil disobedience a matter that is no longer vulnerable to attack as extortion or racketeering that would cost protesters their homes and livelihoods," said Tom Brejcha, a Chicago lawyer who represented one of the defendants, Joseph Scheidler.

Scheidler, a longtime figure in the militant anti-abortion movement who has occasionally protested outside Pittsburgh clinics, said yesterday he was, in fact, getting his home back. It had been placed under lien after the plaintiffs, the National Organization for Women, won a $258,000 judgment against him when they sued under RICO's civil statutes.

"I can put up new shutters," Scheidler said. "You don't fix up a house when the abortionists are going to take it over."

Scheidler was supported in his case by an unusual coalition of groups both left and right. Among those filing briefs on his behalf were actor Martin Sheen, People for the Ethical Treatment of Animals and some environmental groups, all worried about the use of racketeering statutes against protesters who use civil disobedience.

Chief Justice William Rehnquist, writing for the majority, said protesters did not "obtain" property and thus cannot be punished under federal extortion laws. Justice John Paul Stevens dissented, saying the court was narrowing decades of broader interpretations of extortion under the federal Hobbs Act.

The court's opinion vacated the monetary judgment against Scheidler and lifted a nationwide injunction against civil disobedience at clinics. The lifting of the injunction is unlikely to spark further blockades, Scheidler said, because a new law, the Federal Access to Clinic Entrance Act, prohibits such actions and carries criminal penalties.

Fay Clayton, who argued the case on behalf of NOW, said that while the court threw out the extortion count, which was brought under the Hobbs Anti-Racketeering Act, it did not address jury findings that Scheidler and demonstrators had used violence against clinics, their patients and staff. She said that leaves open the possibility that portions of the earlier jury verdict against the Pro-Life Action Network could remain standing.

"We're looking into the proper procedural mechanisms to follow here," she said. "Since they failed to address one important part of the verdict, we're investigating what it means."

The case began in 1986 when NOW and abortion clinics in Pensacola, Fla., Milwaukee and Wilmington, Del., sued, claiming that anti-abortion protesters organized by Scheidler were committing violence, blockading doors and driving away clients. NOW, under then-President Eleanor Smeal, argued that the groups were violating anti-racketeering laws in part by depriving the clinics of use of their property.

"This was not about civil disobedience. This was about violence," Smeal said yesterday. "They were invading the clinics and destroying them and injuring the health care workers."

Scheidler said the aggressive use of RICO against anti-abortion demonstrators essentially shut down active clinic protests after he lost the case in the lower courts.

The RICO act, passed in 1970, was originally designed as an aggressive tool for prosecutors to use against organized crime but was quickly broadened to cover a range of white-collar offenses, to the point where less than half of RICO cases now target traditional criminal enterprises. Its civil component grants broad powers of discovery and investigation for plaintiffs' attorneys and provides for triple monetary damages.

"It was never designed to deal with demonstrations," said G. Robert Blakey, a professor of law at the University of Notre Dame, who drew up the law when he was counsel to then-Sen. John McClelland, D-Ark.

Blakey, who argued on behalf of Scheidler and the Pro-Life Action Network in the lower courts, said he was surprised when RICO was used against demonstrators.

"This is not pro-abortion or anti-abortion. This is about whether this behavior, civil disobedience, up to trespass, is extortion. The answer is 'no,' " Blakey said.

The RICO statute has been used twice in U.S. District Court in Pittsburgh against abortion opponents in the past decade.

In 1988, owners of the Highland Building in East Liberty brought suit under RICO against an array of individuals and groups after protesters blockaded entrances to the building, which housed two abortion providers at the time. The owners obtained an injunction against further blockades by some defendants.

In 1994, Dr. Gerald Applegate, a physician at North Hills Passavant Hospital, filed suit under RICO against demonstrators he said had been harassing him. The lawsuit was later withdrawn.