Posted on 07/12/2002 1:31:44 AM PDT by JohnHuang2
Legal briefs are due today in an important case the Supreme Court will consider this fall. In the latest iteration of a 16-year legal fight, the Court's decision in Scheidler vs. NOW will have enormous consequences.
The federal Racketeer Influenced and Corrupt Organizations Act prohibits engaging in a "pattern of racketeering activity" which it defines to include extortion. The National Organization for Women filed a RICO lawsuit in 1986, claiming that a nationwide conspiracy aimed to shut down the abortion industry through such "extortion" and "racketeering" activity.
When this case first reached the Supreme Court, the issue was whether the RICO statute applied at all to social protesters. Pro-lifers argued that the statute required showing an economic motive behind the alleged activity in order to distinguish between Mrs. Smith picketing a store selling fur coats and a Mafia goon chasing away customers to squeeze protection money from the store owner.
In 1994, the Court unanimously said the statute does not require showing economic motive and sent the case back for trial, which began in 1998 in Chicago. The jury found the pro-life activists guilty of extortion, the trial court awarded monetary damages and issued a nationwide injunction, and the U.S. Court of Appeals affirmed.
Now the case is back before the Supreme Court to address new issues. The first is whether the pro-life activities involved in this case really meet the definition of "extortion" in federal law. You might personally consider those activities obnoxious, maddening or even abusive. That does not make them illegal. You might think they should be illegal. That's your opinion but, with all due respect, your opinion does not matter. Those activities are illegal extortion only if they meet the definition in federal law.
The Hobbs Act defines extortion as "the obtaining of property from another" by threat of force or violence. These words are not just random ink blots on a page, they are not linguistic empty glasses waiting to be filled. These words already mean something and a judge's only job is to determine what they already mean. In this case, that job is not difficult. The plain meaning of these words is clear from at least three different perspectives. The first is simply the words on their face. To obtain something means to get hold of it, or come into possession of it, by effort. The extortionist seeks and gets what the victim loses.
The second helpful guide is the fact that the Hobbs Act was modeled, in part, on the New York Penal Law. In defining extortion, that statute similarly requires that the defendant intend to receive or procure property.
The crime of extortion was not a legislative creation. The third helpful guide for judges is the common law, which has long included the crime of extortion. In fact, for more than 500 years, the common-law crime of extortion has required receiving property from another.
Two things are crystal clear. First, extortion requires getting, procuring, or obtaining property from someone. Second, these pro-life activities (whatever you may personally think of them) are not extortion. Social protesters championing a cause are very different from criminal hooligans shaking people down. A business may lose money in each case, but in only one case does that money end up in someone else's pocket.
The Supreme Court may have been right in 1994 when it ruled that the RICO statute does not itself require showing economic motive as a way of distinguishing social protesters from gangsters. But that distinction is absolutely clear when looking at the definition of the individual crimes making up that "pattern of racketeering activity."
New York state courts applying that state's penal law, and federal courts applying the Hobbs Act based on it, have consistently viewed extortion as a crime of acquisition. Extortionists get what their victims lose. In only one setting have judges forgotten they are judges, abandoned all restraint, and re-defined extortion. Only when they can suppress pro-life speech and turn pro-life protesters into "extortionists" do judges fly into a fit of activist rage and turn extortion from a crime of acquisition into a crime of mere deprivation.
Consider the implications of the Supreme Court ruling this way. Not only would it further establish courts as super-legislatures, it would allow any group to claim their political opponents are not just wrong, but criminals. Especially on issues where the contending views are particularly passionate, the temptation to use this hammer to squelch an opposing point of view will be irresistible. Thus it's no surprise that the Southern Christian Leadership Conference, anti-war activists, and People for the Ethical Treatment of Animals support the pro-life side in this case. Our rights often rise and fall together.
Could this argument not be applied to say - environmental protestors, etc?
“This ruling makes the Boston Tea Party a RICO,” he said.
Blakey represented Scheidler before the Supreme Court in a failed effort to block the application of RICO to any group that does not seek economic gain. “This has nothing to do with left or right,” he said. “When we wrote this in 1970, (some politicians) were petrified that the (Richard) Nixon administration would use this statute against the anti-war movement. Let’s talk politics. NOW is looking to stop all demonstrations against abortion, good ones and bad ones.” RICO author represented Scheidler
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