Free Speech Power Play

Should RICO, the federal Racketeer Influenced and Corrupt Organizations Statute, be applied beyond a John Gotti, the gangster, or a Charles Keating, the savings-and-loan kingpin, to a Mahatma Gandhi or a Dr. Martin Luther King Jr.? I thought not when, as counsel to Sen. John McClellan (D-AR), RICO’s chief sponsor in the Senate, I drafted the 1970 act. I also advocated as much before the Supreme Court in 1994, when I argued in behalf of the respondents in NOW v. Scheidler. My arguments, however, failed to persuade the Court. The untoward consequences of the Court’s decision are now playing out in Chicago, where a jury has returned a civil verdict under RICO against Scheidler and two associates, a verdict applauded in an editorial by the New York Times.

On April 11, 1986, three ministers and Joseph Scheidler, a former Benedictine monk, went to the Delaware Women’s Health Organization in Wilmington, Delaware, to tell Cathy Connor, its administrator, that they would be demonstrating at the clinic the next day. Assuming from her Irish surname that Connor was a fallen away Catholic, Scheidler warned her, “Get out of the abortion business. Someday you will have to answer to Almighty God, who has a commandment: ‘Thou shall not kill.”‘ To be sure, his comments were a “threat” of sorts, but hardly of this world, unless you are prepared to make God a co-conspirator in an illicit plot. Following the protest, Scheidler was arrested, found guilty of second-degree trespass, not guilty of harassment, and was given a small fine, but was commended by the judge for his nonviolent approach. In the spring of 1987, Connor left her job with the clinic. The Chicago verdict is radically rewriting this resolution, a rewriting that does not bode well for free speech in America.

Not satisfied with the normal outcome of the criminal process, the clinic, along with another from Milwaukee and the National Organization for Women, in a strategy devised by Patricia Ireland, then a Miami litigator, filed suit in federal court in Chicago under RICO. Scheidler was accused of masterminding a criminal conspiracy to shut down all abortion clinics in the United States. In particular, Scheidler was accused of threatening Connor and causing her to give up her job as part of that national conspiracy. The two abortion clinics sought an injunction, treble damages, and attorney’s fees, as RICO properly authorized against mobsters or swindlers. The target of the suit: all persons and organizations that demonstrate and allegedly commit acts of trespass and vandalism at clinics. (The suit also charged a conspiracy to murder, kidnap, and commit arson, charges that the federal judge in Chicago later dismissed as totally lacking support in the evidence.) The clinics alleged that the demonstrations constituted “extortion” because they “threatened” employees, doctors, and patients in asking them to give up participating in or having abortions.

The District Court dismissed NOW’s suit, explaining that “an economic motive [had to be charged, that is,] . . . some profit-generating purpose . . . [had to] be alleged in order to state a RICO claim.” The Seventh Circuit Court of Appeals in Chicago affirmed. The Supreme Court granted review and reversed, holding that RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. The Court, however, declined to address First Amendment issues relating to the proper construction of RICO or to consider the scope of “extortion” as applied to demonstrations, though I vigorously argued both points. It left those issues until another day. Sadly, that day is now upon us.

Congress enacted RICO as Title IX of the Organized Crime Control Act of 1970; it was drafted to deal with “enterprise criminality,” that is, patterns of specified kinds of violence (such as murder, extortion, arson, and the like); the provision of illegal goods and services (such as gambling, drugs, and prostitution); corruption in labor or management relations or in federal or state governments; and commercial fraud by, through, or against various types of licit or illicit organizations—in the “upper-world” or the underworld. On the criminal side, RICO authorizes up to twenty years of imprisonment—or life imprisonment if death occurs—substantial fines, and comprehensive criminal forfeitures; on the civil side, it authorizes governmental injunctive relief, private suits for injunctions, treble damages, and attorney’s fees.

At first, the Department of Justice moved slowly to use RICO. Today, it is the prosecutor’s tool of choice against sophisticated forms of crime. Roughly 39% of the department’s prosecutions under RICO concern organized crime, while 48% concern white collar crime. Thirteen percent fall into other categories, like terrorist white hate or anti-Semitic acts. The department is also using civil RICO actions in an effort to break the hold that organized crime has on certain unions, including the Teamsters. RICO claims in private civil litigation began appearing around 1980; they are now filed at the rate of about sixty-five per month—out of approximately 23,000 civil suits filed monthly in the federal courts. About 60% of these cases are filed in connection with other federal claims in the general area of commercial fraud.

Consistent with its current practice of avoiding broad pronouncements, the Supreme Court’s opinion in Scheidler was narrowly focused. Because it concluded that RICO’s statutory language was unambiguous, it refused to consider the legislative history that might have shed light on whether the law was intended to be applied to noneconomic activities. Had the Court followed the approach it prescribed when RICO was enacted—by looking to both the text and its legislative context to ascertain congressional intent, and writing broadly to explain and give guidance in future cases—the decision might well have gone the other way.

When McClellan proposed RICO in 1969, Sens. Philip Hart (D-MI) and Edward Kennedy (D-MA) objected to its application “beyond organized crime.” They were concerned that the administration of President Richard M. Nixon would improperly use the statute against anti-Vietnam demonstrators. In particular, Kennedy pointed to the sit-ins at Army recruiting centers and draft-card burnings. The American Civil Liberties Union, too, objected, citing the “massive antiwar demonstrations at the Pentagon” and “the campus disorders which rocked Columbia University,” each of which went far beyond constitutionally protected conduct. The senators’ deep concern was not simply to exclude from RICO constitutionally protected conduct that could not be included in the bill in any event: They did not want RICO’s severe criminal and civil sanctions to be used at all in the context of demonstrations of any type. They focused on the breadth of state offenses that were then incorporated into the bill’s definition of racketeering activity: “any act involving the danger of violence to life, limb, or property.”

To meet their objections, McClellan told me to strike the generic definition and insert a list of specific offenses. No offense remotely related to trespass, vandalism, or any other aspect of a civil disturbance that might stray beyond constitution limits was on the list that I drafted in the bill. “Extortion” was included, but its meaning is limited; the definition of extortion—”obtaining property by fear”—was first used in federal law in 1947. The description was taken from New York law, drafted as part of the Field Code of 1865, itself taken from the early English common law; it emphasized—from its earliest beginnings—”obtaining” property from someone (“to get”), not “depriving” someone of property (“to give up”). That meaning, too, was reflected in well-established New York and federal jurisprudence, of which I was fully aware as a former criminal law professor and federal prosecutor in the Kennedy administration. I knew what I was doing.

No knowledgeable statutory drafter in 1969 would have believed that “to protest” could be equated with “to extort.” A world of legal difference exists, in short, between an organized crime boss who uses a mob-dominated union to extract an unlawful payoff from a hapless restaurateur and a college student who sits in a draft board office to protest the nation’s unwise foreign policy. Similarly, such common-law offenses as “riot” (“an assemblage of three or more persons to commit an unlawful act, when such act is done in a violent or tumultuous manner”) and the modern statutory offense of “coercion” (“forcing another to act against his or her will”) were consciously excluded from the list of federal and state offenses to preclude any possibility that RICO might be used against social or political demonstrators.

The ACLU acknowledged in a statement inserted in the Senate debates after McClellan had me narrow the bill to respond to Kennedy’s objections—with which he was in complete agreement—that RICO’s provisions had been “substantially revised so as to eliminate most of the previously objectionable features.” While the ACLU continued to oppose the bill on other civil liberties grounds, the group no longer feared that RICO might be used against demonstrators. All of us who were closely involved in drafting the legislation—even those opposing it—believed that because of the changes I made at McClellan’s directions, RICO posed no danger to demonstrators, even when they exceeded First Amendment-protected activity. Had anyone suggested that the bill might go that far, e.g. applied to labor demonstrations, I know what would have happened: The bill would have been referred, not only to the Judiciary Committee, where I worked under McClellan, but also to the Labor Committee, and it would never have seen the light of day. McClellan would not have sponsored it, nor would I have drafted it.

Scheidler will, of course, appeal the Chicago verdict, attacking the lower courts’ unwise expansion of the concept of “extortion.” The Times’s editorial thought that the jury verdict against Scheidler had been handled “with great care.” In fact, the jury, contrary to well-established precedent, was not required by the judge to differentiate increased security costs attributable to lawful as opposed to unlawful conduct by Scheidler, as well as costs related to murders, kidnappings, or arsons for which Scheidler was not responsible. The verdict returned a lump sum—a practice that cannot be upheld under the First Amendment.

Until RICO’s applicability to protests is definitively decided, however, this kind of litigation will unconstitutionally chill political and social protests of all types, not just anti-abortion demonstrations. The jury’s verdict establishes no clear line for distinguishing when “protected picketing” crosses over into “unprotected pushing” or “protected yelling” turns into “unprotected threats.” Obviously, few who desire to bring about meaningful social or political change will lightly risk their jobs, homes, or pocketbooks to join a group of protesters if they may be named in a RICO suit based on “extortion,” forced to submit to extensive civil discovery, and have to pay the huge attorney’s fees and costs generated by aggressive litigators. Even if the protesters ultimately win, as they ought, the stakes are too high; given the vagaries of modern litigation, they might well lose. Such a weapon of terror against First Amendment freedoms was not what I designed when I was counsel to McClellan. Had I been told to do so, I would have refused. It is a legal outrage that at the behest of NOW the federal judiciary is rewriting RICO in a fashion that the Congress, after careful consideration, specifically refused in 1970.

Those who love the First Amendment ought not rest so easily at night in light of what NOW has so wrongly wrought.


  • G. Robert Blakey

    George Robert Blakey (born 1936) is an Irish American attorney and law professor. He is best known for his work in connection with drafting the Racketeer Influenced and Corrupt Organizations Act and for scholarship on that subject.

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