RICO Swallows the First Amendment


“I had hoped that the white moderates would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress. . . .In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. . . . It is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence.”

—Martin Luther King Jr.,
“Letter From a Birmingham Jail,” April 1963

In 1970, the Godzilla of conspiracy statutes became law. Titled the Racketeer Influenced and Corrupt Organizations Act (RICO), it primarily targeted members of the Mob who used violence, intimidation, and other forms of extortion to take over companies and thereby increase Mafia profits.

A few members of Congress saw what very large teeth RICO had. Particularly vigorous in opposition was Massachusetts senator Ted Kennedy. He was afraid that then president Richard Nixon would use RICO against Vietnam War protesters, as well as demonstrators for other causes.

RICO had been drafted by G. Robert Blakey, now a Notre Dame law professor. Responding to the concerns of Kennedy and others, Blakey narrowed the language of the bill–but not nearly enough. Yet he insisted then–and still does–that RICO was never intended to apply to social or political movements. It was intended to get the Mob–and other corrupt predators in the business world.

As Blakey recalled recently, “Congress enacted RICO to deal with ‘enterprise criminality’–that is, patterns of violence, the provision of illegal goods and services, corruption and commercial fraud in the ‘upper world’ of the underworld.”

But, through the years, as courts have tried to interpret the statute, RICO has taken on increasingly vague and expanded meanings. Its language is so slippery that Supreme Justice Antonin Scalia once complained about the “meager guidance” the Court itself had been able to derive from the law.

In the early 1980s, I took part in a RICO seminar at the Cato Institute in Washington. We traded stories about how wide-ranging RICO had become–it had even been used by a congregation intent on getting rid of its rabbi.

But on April 20 of this year, RICO became more dangerous than ever. The National Organization for Women, using RICO, triumphed in federal court in Chicago over antiabortion organizers. As you will see, NOW has thereby brought into peril not only antiabortion activists but also animal rights organizations, environmentalists, labor unions, civil rights and gay groups, and other social and political organizations that engage in active protests.

In the Chicago lawsuit, NOW successfully claimed that the prolifers’ illegal actions–like blockading an abortion clinic–were forms of extortion because they used threats of violence and some actual violence.

Unless the verdict is overturned on appeal, that lawsuit will pave the way, says professor Blakey, for further RICO actions that “will unconstitutionally chill social protest–of all types. . . .

“Perfect demonstrations aren’t possible,” he notes. “Shouting will turn into pushing, a rock will get thrown through a window.”

Adds Steve Chapman of the Chicago Tribune: “Under RICO, if anyone associated with a protest group is accused of committing just two illegal acts over the course of 10 years, it can be sued. Organizers and demonstrators who did nothing wrong may find themselves liable for offenses by others [during a protest] that they neither encouraged nor condoned.”

Under RICO, if you lose, the court can hit you with triple damages as well as the victor’s legal fees. Your own legal fees can be huge through the long, serpentine course of trials and appeals. (The NOW case against the prolifers took 12 years.)

In its triumph, NOW has turned on its own. In the Chicago Sun-Times, columnist Dennis Byrne quoted a NOW attorney: “We cannot tolerate the use of threats and force by one group to impose its views on others.”

That statement was referring to prolifers who blockade abortion clinics “by chaining themselves together.”

But what about the heritage of feminists? “Feminists,” Dennis Byrne continued, “chained themselves together years ago outside the door of the Illinois Senate to try to force passage of the Equal Rights Amendment. Other feminists chained themselves to a Mormon church gate because they didn’t agree with something the church did.”

Moreover, the defendants in the Chicago RICO suit, Byrne notes, “didn’t even have to be found guilty of individual acts of violence. They only had to be somehow ‘associated’ with anyone who somehow committed or threatened violence or extortion. Meaning, I guess, guilt by association.”

NOW did not have to continue this lawsuit because in 1994, a law was enacted that makes it a federal crime “to use force or physical obstruction to interfere with a woman seeking to obtain reproductive health.” This statute is called the Freedom of Access to Clinic Entrances Act (FACE). Its penalties are stiff.

So, with FACE on hand, there was no need for RICO to deal with illegal acts against abortion–or to terrorize the First Amendment.

NOW might also consider the black students who once sat in at segregated southern lunch counters, preventing whites from using these facilities–and also preventing the white business owners from use of their own property. Those black students, spearheading what came to be the Civil Rights Movement, were insisting on integration, the end to Jim Crow. And they were doing that through–in RICO’s term–“extortion.”

This article from the Village Voice Archive was posted on June 23, 1998

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