Justices Express Concern For Free Speech In Pro-Life RICO Case

Written by Robert B. Bluey

(CNSNews.com) — The U.S. Supreme Court heard arguments Wednesday in a case that bars pro-life activists from protesting outside abortion clinics, and although free speech was not a question for the court to consider, several justices expressed concern about the impact the case could have on all forms of demonstration.

When the court accepted the case in April, it declined to address the First Amendment question and focus instead on whether the protests constituted extortion as well as whether the federal racketeering law allowed a judge to impose a nationwide injunction against the groups.

The case, which dates back to 1986, pits two prominent pro-life groups, the Pro-Life Action League and Operation Rescue, against an abortion supporter, the National Organization for Women (NOW). After several delays, including a separate issue that was previously resolved by the Supreme Court, a jury found the pro-life groups guilty of extortion in 1998.

The court is again considering the case to determine if the actions of Joseph Scheidler's Pro-Life Action League and Randall Terry's Operation Rescue amount to extortion, a charge typically used in cases of organized crime. A second issue involves the nationwide injunction imposed by a trial court judge, which prevents the groups from protesting outside clinics.

Throughout the case, Scheidler has maintained that pro-life activists have done nothing to warrant the extortion charge because they carried out peaceful, non-violent protests much like Martin Luther King Jr. and other civil-rights demonstrators did in the 1960s. NOW contends that violence was involved in 121 instances, although that number has been disputed.

Justices Antonin Scalia and Stephen Breyer were two of several justices who raised the question of free speech. They said if pro-life activists could be targeted under a federal racketeering law for disrupting the business of an abortion clinic, civil-rights demonstrations could have faced similar charges for protesting whites-only businesses.

At one point during the arguments, the justices grilled U.S. Solicitor General Theodore Olson about the government's support for NOW's use of the racketeering law, commonly known as RICO.

"The First Amendment is not an issue in this case," Olson said, after Justice Anthony Kennedy told him there were serious First Amendment concerns at stake for all protesters.

Then Scalia pointedly asked Olson if civil-rights demonstrators and labor union strikers would face the same fate.

"Under some circumstances, it would have been applicable to civil rights," Olson said, noting that violence or other illegal activity must be present. But as for labor disputes, Olson said there are laws making them exempt from extortion, an argument that Scalia panned.

Similar questions about free speech arose when NOW's attorney, Fay Clayton, made her arguments.

Breyer wondered if a union worker striking outside a company or blacks protesting at a soda fountain would fall into the category of extortion. He said business owners would certainly view these protests in the same light NOW viewed the pro-life demonstrations outside abortion clinics.

"I'm rather concerned about this problem," Breyer said.

To which Clayton replied: "Martin Luther King didn't tell his followers to go into Woolworth's and bash the property."

At several junctures, the court asked the attorneys to address the meaning of "property," which is the basis for determining extortion, as defined by the federal Hobbs Act.

Clayton said "property" means anything tangible or intangible that someone obtains from someone else. In this case, she said, the pro-life activists used violence to scare away clients seeking abortions and temporarily shut down clinics.

Although Olson supported that definition, several justices questioned if "property" can be loosely defined in cases where actual property was not seized.

Roy T. Englert, Jr., an attorney for the pro-life groups, told Justice David Souter that controlling something does not translate into obtaining it.

"My clients don't have the property today," Englert said. "They might have interfered with it at one point in time."

Fewer questions dealt with the nationwide injunction imposed against the pro-life groups by a federal trial judge. Although Olson sided with NOW on the extortion claim, he said the government opposed the use of injunctive relief in private civil cases.

Outside the court, demonstrators gathered prior to the arguments despite the frigid Washington weather. Both sides were represented, chanting their feelings and carrying signs for bystanders to see.

Afterward, Scheidler and Terry expressed optimism, as did NOW's president, Kim Gandy.

Scheidler denied NOW's allegations that his supporters committed violence at abortion clinics and scoffed at the suggestion he was running a "pro-life mafia." He said a decision favoring NOW would have a chilling effect on all types of protesters.

That logic has brought together an unusual outpouring of support for the pro-life groups. Actor Martin Sheen, Martin Luther King Jr.'s son, People for the Ethical Treatment of Animals and the Southern Christian Leadership Conference all joined a friend-of-the-court brief opposing the extortion provision.

Gandy, however, said even left-wing abortion supporters must be held accountable for committing violent acts as a form of protest. She said such behavior goes beyond First Amendment protections.

The cases are Scheidler v. NOW and Operation Rescue v. NOW. A decision is expected before next summer.

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