The columnist I most admire is Robyn Blumner. She writes a syndicated column for the St. Petersburg Times that is carried here in the New York Post. She is the most forceful and lucid civil libertarian I know.
We are friends and disagree on only two issues. She is insistently prochoice, and I am a prolifer. She believes there is a constitutional right to assisted suicide, and I am convinced that assisted suicide leads–as it already has in the Netherlands–to involuntary euthanasia. Otherwise, I keep learning from Robyn’s analyses.
The following is Robyn’s reaction to the April 20 decision by a federal grand jury in Chicago that a number of antiabortion organizers were guilty of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy laws. The National Organization for Women (NOW), which brought the lawsuit, called the result “a major decision for women’s rights.”
Says Robyn: “I’ve been on the front lines of the abortion war, I know how ugly it gets when escorts have to crowd a patient so she doesn’t have to endure the pictures of mangled fetuses thrust in her face. . . . I have even had an elderly scarecrow of a man–with ‘God is Pro-life’ tattooed across his knuckles–wrapped around my legs reciting Scripture and trying to crawl past me. He didn’t get past. He got arrested.”
Nonetheless, Robyn Blumner is thoroughly critical of NOW’s use of RICO to triumph over the prolife organizers. “I am not willing,” she says, “to sacrifice the First Amendment to silence these abortion opponents.”
And Gerald Lefcourt, who has defended highly unpopular protesters and is currently president of the National Association of Criminal Defense Lawyers, points out that RICO, as expanded by the Chicago decision, “could be applied to any demonstration or protest.”
Here’s how it works. It’s a crime, under RICO, for anyone to commit a “pattern” of two or more “racketeering acts” in the course of conducting the affairs of an “enterprise.”
So what does that mean?
Columbia law professor Gerard Lynch explained for me this quicksand of a law:
“The definition of the crime is so abstract that just about any kind of a crime can be prosecuted as a RICO violation.
“An enterprise can be anything–a company, a union, a government office, a Mafia family, or just a couple of guys who get together on a Saturday night to raise hell. And while the courts have struggled over what exactly constitutes a pattern, they are hard put to draw a line short of’any two crimes’ on the long list of violations defined as ‘racketeering acts.’ “
Accordingly, Texas Air filed a RICO suit against the machinists’ union, which had publicly charged that Texas Air was violating airline safety rules. That criticism, that use of speech, said the airline’s lawyers, constituted a “pattern of racketeering activity.”
Speech that is critical of institutions with the funds to bring a RICO suit can cost a defendant a lot, if only in legal fees.
RICO, this poisonous conspiracy weapon applied by NOW in Chicago, has been used in an extraordinary variety of ways.
Landlords have used RICO to squash unhappy tenants who organized, through speech, for their rights.
Agribusinesses have sued Cesar Chavez and the United Farm Workers under RICO for “inducing” the California Agricultural Labor Relations Board to issue “fraudulent” complaints against these warmhearted employers.
And several defense lawyers in RICO cases have told me there are plaintiffs with deep pockets who bring RICO lawsuits with no expectation of winning, but in the hope of scaring their critics into keeping their grievances to themselves from then on.
As you can see,RICO is a powerful way to chill and ultimately to suppress the left’s best hope of moving to justice–through demonstrations, sit-ins, aggressive picketing, et al.
Did NOW have to smite its opponents with RICO?
NOW says, pragmatically, that RICO is a statute on the books. So why shouldn’t they use it?
Morally, the choice to use RICO is another matter. Some years ago, the left debated whether to smash the prolifers with RICO. In the Resist Newsletter–which reached community organizers and feminist and antiracist groups around the country–Tatiana Scheiber pointed out:
“Antiabortion demonstrators argue that we should take advantage of the RICO law–as long as it’s there–to keep clinics open. But that’s exactly the process by which the right to dissent is worn away.
“When the RICO law was first passed, I remember gathering information about the dangers it presented, both in terms of the stripping away of pretrial assumptions of innocence and the arbitrary definitions of terms like criminal conspiracy and extortion. I have only seen my fears confirmed as RICO’s net has widened.
“Shouldn’t we be organizing to protest repressive federal legislation rather than using RICO when it happens to serve our ends? . . . RICO could soon be used against any member of a group that engaged in any sort of confrontational tactic as a form of protest.”
Is Robyn Blumner the only prochoice feminist who publicly objects to NOW’s intimate relationship with RICO? I would appreciate hearing from feminist civil libertarians with answers to that question.
A sidebar from the Chicago RICO trial and the case brought by NOW: One of the defense attorneys says that Judge David Coar, who is black, mentioned during a break that he had been involved in the historic civil rights movement and known Stokely Carmichael and Rap Brown. Judge Coar, reflecting, implied that if RICO had existed back then, it probably could have been used against the civil rights activists. You bet.