Posted on 12/09/2002 5:54:31 PM PST by Marianne
WASHINGTON - Federal laws aimed at cracking down on mobsters are now being used against abortion opponents and animal rights protesters - and at least some Supreme Court justices seem to wonder if free speech is being damaged in the process.
Several justices raised that concern Wednesday as the high court heard arguments in Scheidler v. National Organization for Women - a case technically about legal limits on abortion protests.
In reality, the case has evolved into something far bigger: a high-court test of where free speech ends and extortion or racketeering begins.
With anti-globalization protesters taking to the streets on a regular basis and antiwar activists sure to challenge any invasion of Iraq, it's one of the most important questions the Supreme Court will face this year.
And it has already created some strange bedfellows, with liberal groups such as the Southern Christian Leadership Conference and People for the Ethical Treatment of Animals siding with anti-abortion radicals.
All those groups make the same point - that if the law allows protesters to be prosecuted like mobsters, far fewer people will take to the streets to challenge the status quo - and freedom of speech will have suffered an awful blow.
It's a worry that the justices are taking seriously.
"We are and should be very concerned with First Amendment issues here," said Justice David Souter.
"There's always a First Amendment implication in a protest case," added Justice Anthony M. Kennedy.
The case involves Joseph Scheidler, a pro-life activist who conducted a long protest campaign against Chicago-area clinics. The National Organization for Women sued him in 1986 under the Hobbs Act, an anti-extortion law, and the Racketeer Influenced and Corrupt Organizations Act, or RICO.
A federal court found that Scheidler blocked clinic entrances, destroyed clinic equipment and harassed patients and employees. Scheidler was ordered to pay $258,000 in damages.
The case has already made it to the high court once before, in 1994, when the justices ruled that the racketeering law could be used in situations where the racketeer wasn't motivated by money.
Now the case is back with two far bigger questions: how widely the extortion law and the racketeering statute can be applied.
Plenty of people including a top Buffalo pro-life lawyer and a Buffalo pro-choice lawyer worry that it's being used far too broadly.
Stasia Zoladz Vogel learned all about the extortion law in 1997, when it was used against Rome abortion opponent John Arena. He was convicted of extortion after planning acid attacks on a Planned Parenthood office and a doctor's office in the Syracuse area in 1994.
Vogel, who represented Arena at his sentencing, said prosecutors stretched the extortion law to fit an act of civil disobedience for which it was never intended.
And just this year, University at Buffalo law professor Lucinda M. Finley got a Florida abortion doctor's extortion conviction overturned. While a prosecutor said the doctor tried to extort money from a Florida community in return for not building a clinic there, a federal appeals court ruled that the charge was groundless.
"I've seen a lot of very broad uses" of the extortion statute, said Finley, who worries that it could be used against antiwar protesters or even pro-choice activists.
"I say watch out: It can turn around and bite you," she said.
Finley also noted that the 1994 Freedom of Access to Clinic Entrances Act gives abortion clinics and prosecutors legal resource to crack down on violent protesters without having to resort to the extortion or racketeering statutes.
Animal labs don't have a special law protecting them. So when members of People for the Ethical Treatment for Animals chained themselves to the fence of a New Jersey animal lab in 1997, the clinic sued. That suit was dropped, but the animal rights group worries that there's more to come.
"If prosecutors try to paint with a broad brush, it can have a real chilling effect on free speech and protest," said Jeff Kerr, the group's general counsel.
That's why liberal activists ranging from Iraq war opponent Kathy Kelly to actor Martin Sheen joined briefs arguing for a narrow reading of the extortion and racketeering laws.
In doing so, they face not only the National Organization for Women, but also the U.S. Department of Justice. Both argued in court that a broad reading of the laws will give businesses and prosecutors a way to punish protesters who get out of hand.
Violent protests that shut down a business constitute extortion because they prevent that business from making the money that's rightfully theirs to be made, argued U.S. Solicitor General Theodore Olson.
"The aim in this particular case is to shut down the clinic," not to peacefully protest abortion, Olson argued.
Countering that argument, several justices asked hypothetical questions about how America's great protest movements would have been affected if the mob-inspired laws could have been used against them. For example, they asked whether Martin Luther King Jr.'s lunch counter sit-ins would have been seen as extortion or racketeering.
Fay Clayton, NOW's attorney, said that they wouldn't, for one simple reason: They weren't violent.
"Martin Luther King didn't tell the people to go into Woolworth's and bash people," Clayton said.
Justice Sandra Day O'Connor expressed some sympathy with that view, noting that in the Scheidler case, "We're not talking about conduct that's lawful. To paint the picture we're talking about just pure speech is not the case."
Nevertheless, Justices Antonin Scalia and Stephen Breyer joined Souter and Kennedy in expressing concerns about sanctioning new limits on free speech.
"You have a lot of statutes you can sue under," Breyer told the NOW attorney. "Others don't. They'll all be under the Hobbs Act or RICO, and I'm rather concerned about that."
There's a disconnect here of some sort.
Everybody's Column
The Buffalo News LINK
December 9, 2002
In James Kopp's confession in The News, he stated that, due to his actions, "at least some" of the 25 babies who were scheduled to be aborted the day after he shot Dr. Barnett Slepian survived. I have yet to see a confirmation of the accuracy of that statement, but if true, that fact alone may make Kopp's argument - that his actions were justifiable - at least debatable.
Donn Esmonde's view seems to be that everyone, on either side of the abortion issue, should put their feelings about it aside during this criminal case so that we can crucify this man and then wash our hands of it. By branding this killing as an "act of terrorism," as opposed to an "act of passion," Esmonde sets himself up as judge and jury and clearly puts the pro-choice camp in the driver's seat in the inevitable debate.
Vigilantes who sacrifice the few in order to save the many are nothing new. Those interested in historical examples in American history should study the case of John Brown. What is new is that since 9/11, every time some sensational act takes place, its perpetrator is branded as a terrorist. One could also make the case that anyone who aborts thousands of innocent babies each year is also a terrorist. Healthy debate is nothing to be afraid of. Just because a sensational and/or tragic event is what sparks the debate is no reason to ignore it.
RALPH PAYNE
Office of Media Resources
Niagara University
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.