Scheidler, Joseph, et al. v. NOW, Inc., et al. / Operation Rescue v. NOW, Inc., et al.

By: Phoebe Hall, Medill News ServiceQuestions presented: (1) Did the 7th Circuit correctly hold, in acknowledged conflict with the 9th Circuit, that injunctive relief is available in a private civil action for treble damages brought under the Racketeer Influenced and Corrupt Organizations Act (RICO)? (2) Does the Hobbs Act, which makes it crime to obstruct, delay, or affect interstate commerce "by robbery or extortion," and which defines "extortion" as "the obtaining of property from another, with [the owner's] consent," when such consent is "induced by the wrongful use of actual or threatened force, violence, or fear," 18 U.S.C. @ 1951(b)(2), criminalize activities of political protesters who engage in sit-ins and demonstrations that obstruct public's access to a business's premises and interfere with the freedom of putative customers to obtainservices offered there?

BY PHOEBE HALL, MEDILL NEWS SERVICE

In the mid-1980s, the Pro-Life Action Network, a loose national organization of anti-abortion groups, began to offer seminars on abortion clinic protest strategies, including how to persuade clinic workers to leave their jobs and potential clients to abandon plans to obtain abortions. PLAN, led in part by Joseph Scheidler, Andrew Scholberg, Randall Terry and Timothy Murphy, used a newsletter and a hotline to keep its members abreast of upcoming protest missions, or "rescues" as it called them.

The protest missions ranged from picketing and leafleting to violent attacks and destruction of facilities. Hundreds of incidents, including the following, were later recounted to a federal jury in the U.S. District Court for the Northern District in Illinois:

* In Chico, Cal., anti-abortion protesters pinned four clinic staff members against glass for hours, holding them there even when they said they were being crushed. The glass finally gave way, injuring one worker.* Protesters in Los Angeles grabbed a patient's arms and legs in an attempt to physically prevent her from entering a clinic, even though she was there for a follow-up to ovarian surgery. The attack reopened her incisions.* In December 1985, Scheidler sent letters to every abortion provider in the Chicago area, requesting that they shut down for a particular day and warning that non-compliance with his request would result in "non-violent direct action."

Though the 1st Amendment protects many of PLAN's protest strategies, in 1986, the National Organization for Women, Inc., filed suit in federal court against the group, alleging that its protest missions amounted to a pattern of extortion and therefore violated the Racketeer Influenced and Corrupt Organizations Act. The defendants argued that an organization must have an economic motive to engage in racketeering acts, and because it did not benefit financially from its protests, it did not violate RICO.

The district court and the 7th Circuit Court of Appeals agreed with Scheidler and his co-defendants. But in 1994, the U.S. Supreme Court reversed, finding for NOW and the two plaintiff clinics. The high court remanded the case to the district court.

"RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering in 1962(c) [of RICO] were motivated by economic purpose," Chief Justice William Rehnquist wrote for the unanimous court. "Predicate acts, such as the alleged extortion here, may not benefit the protesters financially, but they still may drain money from the economy by harming businesses such as the clinics."

In a concurring opinion, Justice David Souter wrote: "[A]n economic motive requirement would protect too much with respect to 1st Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling."

Back in the district court, a jury awarded monetary damages to the two clinics and the judge issued a permanent nationwide injunction, preventing the defendants from trespassing on, blocking access to or committing acts of violence at clinics.

The defendants appealed, contending, among other things, that RICO does not provide injunctive relief for private plaintiffs, that the injunction violates their 1st Amendment rights, and that the Hobbs Act, the federal extortion statute, does not apply to their actions.

In 2001, the 7th Circuit Court of Appeals found for NOW and its co-plaintiffs. Scheidler had argued that sec. 1964(a) of the RICO statute, which allows restrictions "prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in," could be enforced only by the government, not private plaintiffs. Indeed sec. 1964(c) of the law specifically addresses private parties, the defendants argued, allowing them to recover monetary damages only.

But the appeals court interpreted subsection (a) to be a description of the remedies available to all plaintiffs. "'The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors . . . dedicated to eliminating racketeering activity,'" the court wrote, quoting the U.S. Supreme Court in Rotella v. Wood. "Recognizing that the statute gives private citizens the ability to seek injunctive relief as well as damages is fully consistent with this role for civil RICO litigation."

On the defendants' free speech arguments, the appeals court wrote: "We believe the district court adequately ensured that the jury's verdict was not based on activities protected by the 1st Amendment, and that the remedies it ordered also respected the line between protected expression and unprotected conduct." Because the 1st Amendment does not protect violent acts or threats, the court said, it supported the jury's findings.

The appeals court also rejected the defendants' claim that the Hobbs Act did not apply to their actions. The jury found 21 violations of the Hobbs Act among PLAN's numerous illegal acts. But the defendants argued that because the federal law refers to extortion, it does not apply to their actions. They said they did not obtain the clinics' property; they simply forced them to part with it.

"[T]his circuit has repeatedly held that intangible property such as the right to conduct a business can be considered 'property' under the Hobbs Act," the appeals court wrote. And referring back to its earlier opinion in United States v. Stillo, the court said: "'[A]s a legal matter, an extortionist can violate the Hobbs Act without either seeking or receiving money or anything else. A loss to, or interference with the rights of, the victim is all that is required.'"

Scheidler and Operation Rescue appealed separately to the U.S. Supreme Court and on April 22, 2002, the Court granted certiorari in both cases and limited review to questions 1 and 2 presented in Joseph Scheidler's petition: whether RICO allows private plaintiffs to seek injunctive relief, and whether the Hobbs Act can be applied to political protests.

Fay Clayton, the lead attorney for NOW since 1986, says RICO "expressly allows injunctions" for private parties. Without that remedy, clinics would have to go back to court again and again, "maybe every month."

Furthermore, if a protester commits an illegal act listed in the Hobbs Act, Clayton said it shouldn't make a difference if she or he is religiously or politically motivated. After all, she said, if Osama bin Laden is prosecuted it won't matter that his motives are political or religious.

"It's the conduct that counts," she said.

But the acts the jury found to be violations of the Hobbs Act include protests, says Scheidler's lawyer Alan Untereiner, and that has implications beyond abortion protests.

"If protesting is extortion, then all kinds of other political protests would be extortion, and they could not be allowed under the law," Untereiner said. He added that under the appeals court opinion, "the Woolworth's sit-ins [in the 1960s] would qualify as extortion."

Untereiner says a number of organizations concerned about the appeals court ruling have filed briefs in support of PLAN's petition, including People for the Ethical Treatment of Animals and labor groups.

"These two issues have implications far beyond abortion protest cases because RICO is used against all kinds of business entities," Untereiner said. "This logic would apply to lots of different political protesters... It's a much broader issue than abortion."

On Feb. 26, 2003, the Court reversed, holding 8-1 that the anti-abortion protesters did not commit extortion within the meaning of the Hobbs Act, and therefore that without the underlying RICO violation, no nationwide injunction was permissible.

Writing for the majority, Chief Justice William Rehnquist concluded that the Hobbs Act was not violated because the anti-abortion protesters did not obtain property from the clinics or from the women seeking abortions, an element necessary to exortion, though not necessary to coercion.

Justice John Paul Stevens was the lone dissenter.

Rehnquist pointed out that the abortion clinic attorneys shifted their arguments before the Court, abandoning the theory that the protesters extorted women's "property" rights to medical services and the clinics' rights to provide the services, and instead arguing that the protesters violated the Hobbs Act by seeking to get control over the clinics' property. The Court concluded that it would not stretch the meaning of the Hobbs Act to encompass such actions.

In so finding, though, the Court conceded that the protesters in fact "interfered with, disrupted and in some instances completely deprived [abortion clinics and women] of their ability to exercise their property rights, adding that the protesters' attorney "readily acknowledged at oral argument that aspects of his clients' conduct were criminal."

"But even when their acts of interference and disruption achieved their ultimate goal of 'shutting down' a clinic that performed abortions, such acts did not constitute extortion because [the protesters] did not 'obtain' ... property," Rehnquist wrote, noting that there is a distinction under the Hobbs Act between depriving someone's right to property and actually acquiring the property, which the protesters did not do.

Calling the majority opinion "murky," Stevens puzzled over the Court's need to define "extortion" as used in the Hobbs Act as covering nothing more than the acquisition of tangible property. "No other federal court has ever construed this statute so narrowly," he wrote.