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December 4, 2002 9:00 a.m. Joe Versus a Legal Volcano NOW v. Scheidler goes to the Supremes.

ral arguments are being heard Wednesday in the U.S. Supreme Court in a case whose outcome could put nonviolent civil disobedience in a deep freeze. If the High Court upholds lower-court rulings, peaceful political protest in this country could be treated as a form of organized crime — with protesters denied even the protections of a criminal trial.

National Organization for Women v. Scheidler, which has been in litigation for 16 years, is a federal case brought by the national feminist lobby against Chicago pro-life activist Joe Scheidler and others, which eventually sought damages from them under the civil provisions of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. NOW's argument is that by organizing to block abortion clinic entrances and engage in other forms of civil disobedience, pro-lifers were extorting from the clinics their right to business proceeds, and the right of women to engage in commerce (i.e., procuring abortions).

In 1991, a U.S. District Judge ruled that the RICO law wasn't applicable to this case, and ordered it dismissed, a ruling upheld on appeal. NOW appealed to the Supremes, who were told in an oral presentation by law professor Robert Blakely, RICO's author, that there is no basis to impute extortion to the pro-lifers because they did not financially gain from their protests. But in January 1994, the Supremes unanimously ruled that the RICO law was unclear about the role monetary gain plays in applying the statute, thereby green-lighting NOW's lawsuit.

In April of 1998, a civil jury found Scheidler and his codefendants, including the Pro-Life Action League and Operation Rescue, liable under RICO. Even though it was not demonstrated that the defendants engaged in violent acts, NOW convinced the jury that Scheidler and his codefendants conspired to drive the abortion clinics out of business through "force, violence and fear" (incidentally, a recent investigation by World magazine cast serious doubt on the truth of NOW's witness testimony). The defendants appealed to the U.S. Supreme Court, claiming that peaceful protest cannot be considered extortion.

If the justices uphold the lower courts' expansive definition of "extortion," nonviolent civil disobedience will become a much riskier form of protest. A single jury finding of racketeering and extortion could cost an activist everything he owns.

That's why a large and diverse number of activist groups and individual civil libertarians have signed "friend of the court" briefs on behalf of the pro-life defendants. One of them is the People for the Ethical Treatment of Animals, which has been involved on the pro-life side of the debate for almost ten years.

"Confrontation about social issues is sometimes frightening to people and industries trying to protect their vested interests, but aggressive social debate is not a RICO offense. RICO was designed to fight organized crime, not constitutionally protected protest," said PETA general counsel Jeffrey S. Kerr, in a statement provided to NRO.

Katie Short, legal director of the Life Legal Defense Fund, says this case hinges on how far the courts will be allowed to go in stretching language to fit ends it finds socially desirable. This explains why noted civil libertarian Nat Hentoff called Scheidler's RICO judgment "the most serious threat [to civil liberties] in years [because] the law is so broad and vague, it becomes simply a prosecutor's tool." Tellingly, Solicitor General Ted Olsen will offer court argument on behalf of NOW's expansive definition of extortion, supposedly because the U.S. government wants to keep RICO as broad as possible to give itself maintain maximum latitude to prosecute under the statute.

"No one ever dreamed that 'extortion' would mean a peaceful sit-in at an abortion clinic," Short tells NRO. "You no longer have the rule of law when words mean whatever a judge arbitrarily says they mean."

NOW v. Scheidler is groundbreaking in that it marks the first time RICO has been employed against a social- or political- protest movement. Short warns that a victory for the feminists in the Supreme Court would hand opponents of any protest group a powerful weapon to quash demonstrations.

"They can sue you and push you immediately into danger of liability for treble damages and attorneys' fees, with none of the due-process protections open to you in a criminal trial," she says. "It can ruin an organization. It can ruin an individual. It makes people not even want to get involved in protest."

NOW argues that it does not intend to stop peaceful protest, and that civil RICO can only apply to those who have used force or committed violent acts in the course of demonstrating. But "violent acts," in NOW's view, includes sitting down to block the door to an abortion clinic — a common form of protest since the 1960s, and utilized against government, college administrators, corporations, and others.

It is a form of protest we won't see much of anymore if NOW and its allies sway the Supremes. If that were to happen, we would all have to count ourselves fortunate that the civil-rights movement desegregated lunch counters down south before RICO and its feminist friends came along. Jim Crow cafeteria owners could have owned the NAACP, the SCLC, and SNCC, and put Martin Luther King and his family in the poorhouse.