Amicus Curiae Brief — Operation Rescue v. National Organization for Women, Inc.

MOTION FiLED 7 |

py) 4)

MAR 42002 Nos. 01-TT18, 01-1119

IN THE

Supreme Court of the Wnited States

October Term, 2001

Joseph Scheidler, Andrew Scholberg, Timothy Murphy,

and the Pro-Life Action League, Inc.,

Petitioners

¥.

National Organization for Women, Inc., et al.

Respondents

Motion of Seamless Garment Network, Sojourners,

Southern Christian Leadership Conference, et al., and

Brief Amicus Curiae in Support of Granting the Petition

for a Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

Robert A. Destro Edward McGlynn Gaffney, Jr. *

Catholic University of Valparaiso University

America School of Law

Columbus School of Law Wesemann Hall

Washington, DC Valparaiso, IN 46383

202-3 19-5202 219-465-7860

* Counsel of Record

Victor Gregory Rosenblum

Northwestern University

School of Law

357 East Chicago Ave.

Chicago, IL 60611

312-503-8443

Other amici curiae listed inside

Ox aX

Amici Curiae Listed Alphabetically

Individuals

David Atwood, Donald Bauer, Daniel Berrigan, Philip

Berrigan, Wendell Berry, Abe Bonowitz, Roy Bourgeois,

Bernard Broussard, Will Davis Campbell, Janet Chisholm,

Carol Crossed, John Dear, Richard Deats, Peter DeMott,

Jim and Shelley Douglass, William and Eugenia Durland,

Ruth Enero, Mary Anne Flores, Bruce Friedrich, Clare

Grady, Ellen Grady, Thomas Gumbleton, Lana Jacobs,

Kathy Kelly, Art Laffin, Rachel MacNair, Liz McAlister,

Deborah McEvoy, Richard McSorley, Paul Magno, Lil-

libeth Navarro, Patrick O'Neill, Gail Phares, Mary Rider,

Scott and Claire Schaeffer-Duffy, Martin Sheen, Kathy

Boylan Shields, Jessica Stewart, John Stoner, Andrew L.

Sullivan, Brian Terrell, Howard Zinn, and Stephen Zunes

Associations or Communities

Agape, Casa Juan Diego (Houston, TX), Catholic

Peace Fellowship, Center for Action and Contemplation,

Center for Peace Studies at Georgetown University, Citi-

zens United for Alternatives to the Death Penalty, Day

House (Deiroit, MI), Dorothy Day Catholic Worker House,

Embrace a Consistent Ethic, Every Church a Peace Church,

Feminists for Life of New York, Franciscan Office of Jus-

tice, Peace, and the Integrity of Creation, Ithaca NY Catho-

lic Worker, The Los Angeles Catholic Worker, Mary's

House (Birmingham, AL), Nevada Desert Experience, Not

Dead Yet, The Peter Maurin Center, Pax Christi USA,

Plowshares, St. Francis Catholic Worker Community (Co-

lumbia, MO), St. Francis and Therese Catholic Worker

House (Worcester, MA), Southern Christian Leadership

Conference, Vieques Support Committee, Voices in the

Wilderness, and Witnesses for Reconciliation.

TABLE OF CONTENTS

Pages

List OF Asmnict Cuimieee..............ccccccccccccccccccccccccccsccscccccccssecssenes i

LS SET a ee PE il

Table of Authorities 2.2.0.0... cccccccccccccecceeceeeceeeeeeeees Vv

Motion for Leave to File Brief of Amici Curiae.............. M1

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Statement of Interest of Amici Curiae ................0.......... |

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Reasons for Granting the Writ .......................es 2

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TABLE OF AUTHORITIES

Pages

CONSTITUTIONAL PROVISIONS

ee M14

Declaration of Independence, | Stat. 1 (1776)............... M14

CASES:

Adderley v. Florida, 385 U.S. 39 (1966)...............c.0cc0e000+ 10

Bell v. Maryland, 378 U.S. 226 (1964). ..............ccccceeseeeeee 10

Bouie v. Columbia, 378 U.S. 347 (1964) .............cccccccceeeee 10

Brown v. Louisiana, 383 U.S. 131 (1966).................-..000- 10

Cox v. Louisiana, 379 U.S. 559 (1965)..............ccceeecceeeeeee 10

NAACP v. Claiborne Hardware Co.,

EC 3,11

National Organization for Women v. Scheidler,

968 F. 2d 612, 620 (7th Cir. 1992). ........................0 13

National Organization for Women v. Scheidler,

510 U.S. 249, 264 (1994) (Souter, J., concurring,

gk ee 3

New York Times v. Sullivan, 376 U.S. 264 (1964).. 1, 14, 15

Religious Technology Ctr. v. Wollersheim,

796 F.2d 1076 (9th Cir. 1986),

RR eee 2

Texas v. Johnson, 491 U.S. 397 (1989).............ccccccceeeseeeeeees 8

United States v. Anthony,

24 F. Cas. 829 (C.C.N.D.N.Y. 1873)...........2.-cccceeeeee 12

United States v. Enmons, 410 U.S. 396, 400 (1973)........... 3

United States v. Nedley,

RF 3

United States v. Panaro, 266 F.3d 939 (2001) ................... 3

United States v. O'Brien, 391 U.S. 367 (1968) ................... 8

Vv

vi

STATUTES:

1S U.S.C. § IDSI(WNMZ) ......00.200--cccccseccreccercersecseersesssonees 2-3, 5

Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. § 1964(c) .......... 1-3, 5,7, 11, 14, 15

Rule 37.6 of the Rules of the Supreme Coutt.................00++. 1

Civil Rights Act Of 19666 ...............c.-c..cccccscesecserensssssossssnees 14

Voting Rights Act Of 1965. ...........:.cccccseeeseeeeeseeeeeensnnnenes 14

OTHER AUTHORITIES:

Craig Bradley, NOW v. Scheidler: RICO Meets the First

Amendment, 1994 SUPREME COURT REVIEW 129........ 7

Taylor Branch, Parting the Waters (1988)...............--00+0++ 9

Stephen Campbell, The Slave Catchers 149 (1968)............ 9

Jack Clocker, “Give to the Winds Thy Fears": The

Women's Temperance Crusade, 1873-1874 (1985) ... 13

Carl Cohen, Civil Disobedience: Conscience, Tactics, and

DT, | 4

Edward McGlynn Gaffney, Politics Without

Brackets on Religious Convictions,

64 TULANE L. REV. 1143 (1990)..........:c0.-cccceseeeeeereeenees 9

Joseph Gasfield, Symbolic Crusade: Status Politics & the

American Temperance Movement (2d ed. 1986) ....... 13

Linda K. Kerner, No Constitutional Right to Be Ladies:

Women and the Obligations of Citizenship (1998). ... 11

Anthony Lewis, Make No Law: The Sullivan Case and

the First Amendment (1991)................ccccccccssreeeeenerees 14

Alma Luz, "Susan Brownell Anthony,” in 1 Notable

American Women, 1607-1950: A Biographical Dic-

tionary 53 (Edward James ed. 1971)........-..----e0ee0- 12

Edward Madden, Civil Disobedience and Moral Law in

Nineteenth-Century American Philosophy (1968). ......4

Thurgood Marshall, Reflections on the Bicentennial of the

United States Constitution, 26 VALPARAISO U. L. REV.

7

Vii

Note, Protesters, Extortion, and Coercion: Preventing

RICO from Chilling First Amendment Freedoms, 75

NOTRE DAME L. REV. 691 (1999). 000......ccccccceceeceeeeeeee 7

Phillip S. Paludan, A Covenant with Death: The Constitu-

tion, Law, and Equality in the Civil War Era (1975).. 8

William H. Rehnquist, Grand Inquests: The Historic Im-

peachments of Justice Samuel Chase and President

pS EE ee 12

Louis Ruchames, ed., The Abolitionists: A Collection of

PIII cenestiitniicncitemnmcvededadnteaditiatasamies 8,9

Aviam Soifer, Status, Contract, and Promises Unkept, 96

RS Ny EOD 9

Mother Stewart, Memories of the Crusade, A Thrilling Ac-

count of the Great Uprising of the Women of Ohio in

1873, Against the Liquor Crime (1972). ..........000-00++ 13

David Weber, ed., Civil Disobedience in America:

A Documentary History (1978)..........-cc-00cceeeseeeeee 4, 13

C. Vann Woodward, The Strange Career of Jim Crow (3d

i SI etertrecerensintnitetentcnierenemecsemecntitantnemmemenatens 9

Howard Zinn, A People’s History of the United States

ee 4

Motion of Seamless Garment Network, Sojourners,

Southern Christian Leadership Conference, et al.,

for Leave to File Brief Amicus Curiae

This motion is filed pursuant to Rule 37.2(b) of the

Rules of this Court. Counsel of Record for the Petitioners in

Nos. 01-1118 and 01-1119 have consented to the filing of

this brief. Their consent letters have been lodged with the

Clerk of the Court. This motion is necessitated because

Counsel for the Respondents in Nos. 01-1118 and 01-1119

has withheld consent.

Amici’ are individuals and voluntary associations

committed to principles of social justice on a wide range of

issues of public importance. Participation of an organization

in the filing of this brief does not imply that that organiza-

tion agrees with the substantive views of the petitioners

about abortion. Some of the organizations support the views

of the petitioners; other organizations have views opposed

to those of the petitioners; and still others have no official

view on this issue. But all of the amici, whether individuals

or communities, join this brief because the novel view of

extortion expressed by the court of appeals exposes them to

liability under the Racketeer-Influenced and Corrupt Or-

ganizations [RICO] act in a manner that they deem clearly

at odds with the history of civil disobedience in this country

and to the core principle of the First Amendment: the “pro-

found national commitment to the principie that debate on

public issues should be uninhibited, robust, and wide open.”

New York Times v. Sullivan, 376 U.S. 264, 270 (1964).

The Southern Christian Leadership Conference

[SCLC], the premier civil rights organization of the 1950s

and 1960s founded by Dr. Martin Luther King, Jr., filed a

' Pursuant to Rule 37.6 of the Rules of this Court, Amici state that

no counsel for a party has authored this brief in wholz or in part and that

no person or entity, other than amicus curiae, its members, or its coun-

sel, has made a monetary contribution to the preparation or submission

of this brief.

Motion, |

Motion, 2

motion in the court of appeals for leave to file a brief

amicus Curiae in support of the petitioners (appellants). The

court of appeals denied this motion, rejecting this brief as

“duplicative.” The participation ¢ © the SCLC in the filing of

the attached brief in this Court underscores a broad com-

mitment by all of the amici signing this brief. In all in-

stances when amici engage in protest of the sort described

above, they do so with respect for the principle of “nonvio-

lent direct action” made famous by Mahandas Gandhi, Dr.

King, César Chavez, and others. Several individual amici,

whether acting alone or in concert with others, have fre-

quently engaged in demonstrations voicing their concerns

about policies they deem to be inconsistent with their con-

scientious duty to protect human life.

The lead amicus, Seamless Garment Network, is

listed first because it helped to coordinate the agreements of

all of the other individuals and associations that are signato-

ries to this brief.

Seamless Garment Network [SGN] is a coalition of

groups and individuals committed to nonviolence and re-

spect for life. The network promotes the consistent life

ethic, focusing on the connections between life issues in-

cluding war, abortion, poverty, racism, the arms race, the

death penalty and euthanasia. SGN suppcrts all means of

nonviolent change including, but not limited to, nonviolent

direct action, political and legislative action and direct ser-

vice to those suffering under these attacks on life. Carol

Crossed (the former executive director of SGN), Mary S.

Rider (the current executive director), and Ruth Enero

(president of the Board of Directors) have frequently en-

gaged in nonviolent civil disobedience relating to the issues

listed above. All three are married women and mothers of

several children. If their political opponents were to use

civil RICO against them, the loss of their homes, cars, and

other valuable things they own would wreak havoc upon

them and their families. Ms. Rider offered a declaration be-

fore the district court at the stage when it was considering

the issuance of the nationwide injunction against anyone

associated with the Pro-Life Abortion Network [PLAN].

Motion, 3

This declaration challenged the enormous breadth of the

nationwide injunction.

Individuals

David Atwood is the director of the Texas Coalition to

Abolish the Death Penaity Pax Christi of Texas. This group

regularly organizes demonstrations against the death pen-

alty in Texas.

Donald Bauer is a Catholic priest who served as a

member of the New York State Labor and Religion Coali-

tion since its inception, and who worked tirelessly for

farmworker wage equity and other issues on behalf of the

poor. He also was appointed to the Congress on Racial

Equality and in both of these capacities used public witness

to educate and challenge the public.

Wendell Berry is an author, farmer, English professor,

and poet. As a long-time conservationist and small farm ad-

vocate, he has written many books deploring the loss of

family farms and rural jobs to farm factories. He is the re-

cipient of many awards, including the Lyndhurst Founda-

tion Prize and the Jean Stein Award from the American

Academy of Arts and Letters.

Abe Bonowitz is the director of Citizens United for All-

ternatives to the Death Penalty [CUADP], a national or-

ganization that works to end the death penalty in the United

States through aggressive campaigns of public education

and the promotion of tactical grassroots activism.

Roy Bourgeois, M.M., is a Maryknoll priest who, after

years as a foreign missionary in Central America, founded

the School of the Americas Watch [SOAW], a loose coali-

tion of citizens concerned about the widespread abuse of

human rights — including torture arid murder of religious

leaders and labor leaders throughout Central and South

America — by foreign military officers who study at the U.S.

Army School of the Americas at Ft. Benning, GA. Each

November — on the anniversary of the assassination of

seven Jesuit priests and their domestic workers in San Sal-

vador by graduates of the School of the Americas - SOAW

Motion, 4

organizes a major demonstration at Ft. Benning against the

negative effects of this program upon peace and justice in

our hemisphere.

Bernard Broussard is the founder of the Human Rela-

tions Council of Louisiana, a group that played a leading

role in community organization on behalf of the civil rights

of African Americans in Louisiana in the mid 1960s. From

that time to the present, he continues to challenge through

marches, demonstrations, holding prayer meetings on behalf

of the oppressed in the South. He is a founder of Starthrow-

ers, a human rights organization based in Louisiana.

Will Davis Campbell is a writer, lecturer, and long time

supporter of the Civil Rights Movement who helped escort

African-American children when they tried to integrate a

Little Rock, Arkansas high school back in 1957. A founding

member of Dr. King's Southern Christian Leadership Con-

ference, he became the Executive Director of the Commit-

tee for Southern Churchmen, which is now known as Wit-

nesses for Reconciliation. ;

Janet Chisholm and Richard Deats are the co-executive

directors of the Fellowship of Reconciliation [FOR], the

largest, oldest interfaith peace organization in the United

States. Since 1915 FOR has carried on programs and educa-

tional projects concerned with domestic and international

peace ‘and justice, nonviolent alternatives to conflict, and

the rights of conscience. FOR promotes nonviolence and

has members from many religious and ethnic traditions. It is

a part of the International Fellowship of Reconciliation,

which has affiliates in over 40 countries. FOR was instru-

mental, maybe critical, in bringing the Gandhian theory of

nonviolent activism into play during the Civil Rights Revo-

lution. ,

Jim and Shelley Douglass are co-founders of Mary

House, Catholic Workers, in Birmingham, Alabama, peace

activists, co-founders of Ground Zero Center for Nonviolent

Action, and co-organizers of a national campaign to stop the

"White Trains" transporting nuclear weapons across the

U.S. and to stop the Trident nuclear submarine and missile

system. The Douglasses believe that every nonviolent

Motion, 5

movement in U.S. history could have been squelched by the

way in which RICO has been applied in NOW v. Scheidler.

The adverse rulings in this case threaten to oppress and de-

ter the organizers of future nonviolent campaigns, now un-

known, that may someday prove necessary to the very exis-

tence of our country and of life on earth. The Douglasses

express the hope that the Supreme Court recognizes that to

bolster any one party's mental security in a controversy by

destroying an opponent's right to dissent can undermine the

most basic human freedoms secured by the Constitution.

William and Eugenia Durland are the founders of the

Center on Law and Conscience. Their interest in this case is

expressed in the form of a question: “Was Martin Luther

King, Jr., a racketeer and extortionist?” They also state: “In

the wake of September 11, our constitutional protections are

being eradicated in the name of a security state. RICO

should not be applied to the exercise of conscientious non-

violence.”

Mary Anne Flores, Clare Grady, and Jessica Stewart

are members of the Ithaca Peace Community, a group that

expresses concern about social justice issues and facilitates

the representation of those who would otherwise remain

voiceless and unheard in our society. These three women

have engaged in nonviolent direct action that has led to their

arrest for trespass upon government property. For example,

they have served sentences for trespass at the Hancock Air-

field in Syracuse, NY, in order to protest the ongoing bomb-

ing of the people of Iraq.

Thomas Gumbleton is a Catholic bishop in the Arch-

diocese of Detroit, Michigan, and a founder of Pax Christi,

USA. He was a leading voice urging the United States Con-

ference of Catholic Bishops to issue its statement in 1971

collectively opposing the Vietnam War on the ground that

the war could be longer be justified on the principles of the

just war tradition. Bishop Gumbleton has worked and vis-

ited in poor and war-torn countries in Latin America and the

Caribbean and is deeply concerned with human rights viola-

tions around the world. He holds a deep belief in the power

of nonviolence to effect social change.

Motion, 6

Kathy Kelly is a co-founder of Voices in the Wilder-

ness, a campaign or movement opposing the economic

sanctions imposed upon Iraq. The American Friends Ser-

vice Committee nominated her last year for the Nobel Peace

Prize.

Lana Jacobs received the Martin Luther King Award

from Companions of Shalom for her work with the inner-

city in Columbia, MO, where she lives in community with

the poor. Ms. Jacobs has been arrested numerous times for

nonviolent direct actions defending the homeless and hun-

gry. Each month she engages in some form of public protest

against military build-up, which in her view robs the poor

of what they rightfully deserve.

Deborah McEvoy, is a member of Feminists for Life of

America and of the Detroit Peace Community. In her role as

a health professional, she supports the needs of women and

their children through petitions, public advocacy and dem-

onstrations.

Rachel MacNair, a Quaker, is the founder and director

of the Feminism and Nonviolence Studies Association. She

has been arrested frequently for participation in nonviolent

direct actions at nuclear weapons facilities. and abortion

clinics. |

Lillibeth Navarro is a wheelchair-bound disabilities

rights leader and activist in Los Angeles, where she works

with Communities Actively Living Independent and Free

(CALIIF). Being in a public and visible role bringing their

message of independence on the street is critical to the dis-

abled, \. hose access to other venues is often stifled.

Gail Phares is a founder of Witness for Peace [WFP] a

national organization working to affect U.S. policy in Latin

America. Ms. Phares is also the founder and director of the

Carolina Interfaith Task Force on Central America. She has

led many delegations to war-torn areas in Latin America

and frequently joins nonviolent peace and justice actions at

home. The members of WFP believe that organizing for jus-

tice -including the right to nonviolent protest of official

policies of our government — is a fundamental right secured

Motion, 7

under the Constitution.

Scott and Claire Schaeffer-Duffy are co-founders of the

Saints Francis and Therese Catholic Worker in Worcester,

MA, a lay Catholic pacifist community which offers hospi-

tality to homeless men and women. They also publish the

Catholic Radical, a bi-monthly journal of opinion. Scott,

who has engaged in civil disobedience at weapons facilities

and abortion clinics, has lectured extensively on the value

of nonviolent. direct action at colleges and universities

throughout New England. The Schaeffer-Duffy's state their

interest in this case as follows: "Nonviolent civil disobedi-

ence is an American tradition, one that has brought much

good to our country. We advocate its use when laws contra-

dict the needs of the common good and the greater law of

God's love for all.” The Saints. Francis and Therese Catho-

lic Worker is a member of the Seamless Garment Network.

Martin Sheen is an actor who has participated for

nearly two decades in protests against weapons of mass de-

struction and in demonstrations pertaining to homelessness

and other issues of social justice.

John Stoner is a member of Mennonite Central Com-

mittee, a traditional peace church. He is the founder of

Every Church a Peace Church, a movement to share the

convictions of the Aasbegunt community with all other

Christian churches.

Andrew L. Sullivan served as the Chair of the Libertar-

ian Party of Nebraska from 1999 to 2001. His interest in

this case is that law must hold the greatest punishment for

violent acts and must distinguish between violent and non-

violent acts. The misapplication of RICO to nonviolent civil

protest levels out the distinction between violence and non-

violence creating a waterfall turn from dissent to violent

action. Without nonviolent action, people will passively ac-

cept government oppression no matter how severe, or be

propelled directly into violent action, for the penalty for ac-

tions of nonviolence would become essentially the same as

Brian Terrell is a leader of the Catholic Peace Ministry

Motion, 8

in Des Moines, Iowa and is a participant with members of

the Des Moines Catholic Worker community in nonviolent

Gandhian activism at Offut Airforce Base.

Howard Zinn is a Professor of History at Boston Uni-

versity. He has served as a professor of history at Spelman

College in Atlanta, and as a visiting professor at the Univer-

sity of Paris and the University of Bologna. He has written

over a dozen books which deal in some way with protest

movements in American history. Two of these books most

closely related to the theme of this brief are Disobedience

and Democracy (1968), and A People’s History of the

United States (1999).

Stephen Zunes is a Professor of Political Science at the

University of San Francisco. He is the principal editor of

Nonviolent Social Movements (Blackwell, 1999). His re-

search interests have included the impact of grassroots po-

litical movements on policy and government. Prior to his

academic career, he engaged in nonviolent civil disobedi-

ence campaigns against nuclear power, nuclear weapons

and apartheid and served as a staff member and nonviolence

trainer for organizations supporting nonviolent civil disobe-

dience.

Communities and Voluntary Associations

Agape is a community of faith in Franklin, LA, that

witnesses for peace and justice through nonviolence. It en-

gages in education of its members and the public, especially

on the death penalty, through publishing booklets, bro-

chures, and treatises on how to effect change through rais-

ing public awareness and consciousness about issues of jus-

tice and peace.

Catholic Peace Fellowship [CPF] is a nationwide or-

ganization of Catholics committed to peacemaking in the

name of Christ. CPF engages in educational projects about

peace and nonviolence, and it supports those who stand for

peace by virtue of conscience. For example, some of the

members of CPF have engaged in nonviolent civil disobedi-

Motion, 9

ence of laws and policies inimical to peace in today’s

world.

Center for Action and Contemplation is a Christian

Center forwarding the integration of social action and con-

templative prayer. We actively engage in transforming soci-

ety around the issues of poverty, war, and other kinds of

violence.

Center for Peace Studies at Georgetown University en-

gages in education about historical figures, like Dr. Martin

Luther King, Jr, Mohandas Gandhi, Thomas Merton and

their message of how to achieve peace through “creative

tension,” “disturbing a negative peace,” and “consciousness

raising.” The founder, Richard McSorley, S.J., has been a

leader in these educational endeavors for over two decades.

He regularly organizes students and others to appear pub-

licly at the Pentagon, the White House, and other federal

institutions in and around Washington DC, to protest poli-

cies that deprive the poor of justice.

Citizens United for Alternatives to the Death Penalty

[CUADP] is a national organization that works to end the

death penalty in the United States through aggressive cam-

paigns of public education and the promotion of tactical

grassroots activism. Like the demonstrators in the Scheidler

case, CUADP is deeply committed to the principles and

practice of nonviolence as espoused by Mohandas Gandhi,

Martin Luther King, Jr., César Chavez, and others. For this

reason CUADP is concerned that activists who engage in

nonviolent civil resistance might be lumped with mobsters

and terrorists simply for planning their activities in advance.

Good planning is essential to ensuring that no property or

person is hurt in the process of expressing concern or out-

rage at injustice.

Dorothy Day Catholic Worker House [DDCW] in

Washington, D.C. is a community founded by Dorothy Day

and Peter Maurin to bear witness to the Gospel that identi-

fies service to the hungry, the thirsty, the homeless, and the

imprisoned as a way of recognizing the presence of God in

categories of human need. The community provides hospi-

tality to homeless families while working to address the

Motion, 10

root causes of homelessness. Committed to following the

teachings of Christ on nonviolence, the community spon-

sors a weekly vigil for peace at the Pentagon as well as nu-

merous other demonstrations against war and militarism,

poverty and abortion. Other communities in the Catholic

Worker network signing this brief include: St. Francis

Catholic Worker Community (Columbia, MO); St. Francis

and Therese Catholic Worker House (Worcester, MA);

Mary's House (Birmingham, AL); The Los Angeles Catho-

lic Worker; Ithaca NY Catholic Worker, Day House (De-

troit, MI); and the Casa Juan Diego (Houston, TX).

Embrace a Consistent Ethic participates in ongoing

peaceful public witness against all forms of taking human

life, including opposition to war, capital punishment, eutha-

nasia, abortion, racism & poverty. The NOW vs Schiedler

case interferes with the ability to carry out group/individual

conscientious objection, even those actions which would

normally be considered within the limits of free speech.

Every Church a Peace Church ([ECAPC] is an asso-

ciation of churches that adopt nonviolent struggle as their

way to pursue justice. For this reason ECAPC agrees with ©

the brief filed in this case by the Southern Christian Leader-

ship Conference in the court of appeals that the power to

impose treble damage awards upon the petitioners and to

enter a nationwide injunction under RICO represents “clear —

and present danger to future prospects for the lawful exer-

cise of our liberties, namely, the free exercise of religion,

speech, press, or assembly and petition for redress of griev-

ances.” ECPC will be neither embarrassed nor deterred if

we discover one day that our church members are filling the

courts, and even the jails, for the free exercise of their relig-

ion in face of this regressive judicial ruling.

Feminists for Life of New York is a pro-woman, pro-

their children. Some of its members engage in civil disobe-

dience. In the twelve years since its existence across the

New York, it has worn costumes of the early suffragists and

stationed themselves outside of convention centers, librar-

ies, and marched wearing the white garb of our founding

Motion, 11

mothers on issues such as domestic violence, child abuse,

and child welfare rights. Like Susan B Anthony, they have

worn gags on our mouths to protest the silencing of our

voices. They participate in a vigil at the Hall of Justice on

every second Friday of the month to protest the death pen-

alty. |

Franciscan Office of Justice, Peace, and the Integrity

of Creation, Santa Barbara Province, practice outreach, ad-

vocacy, and education with and on behalf of the. friars. and

those with whom they minister

Nevada Desert Experience has since 1983 organized

nonviolent civil disobedience at the U.S. nuclear test site in

Mercury, NV, where tens of thousands of people — includ-

ing the famous actor Martin Sheen — have been arrested for

trespass in their public protest against weapons of mass de-

struction.

Not Dead Yet is a national grassroots organization of

people with disabilities formed to oppose legalization of

assisted suicide and euthanasia, and to bring a disability-

rights perspective to the legal and sociological debate

1996 in Dlinois, Not Dead Yet has worked to educate, sup-

port, coordinate and lead the disability community's effort

to stop the “right to die” from becoming a duty to die or a

right to kill. Not Dead Yet's amicus brief, filed in the U.S.

Supreme Court in the case of Vacco v. Quill, 117 S.Ct. 2293

(1997), was among a handful, out of over 60 such briefs,

cited by the Court in its final opinion. Not Dead Yet has

given invited testimony before U.S. Congressional commit-

tees three times. Members have also engaged in non-violent

direct action, such as a rally outside the U.S. Supreme Court

in January, 1997, and in civil disobedience for which mem-

bers, most of whom use wheelchairs, have been arrested on

misdemeanor charges, such as trespass for a sit-in at the

corporate headquarters of the Hemlock Society, and disturb-

ing the peace for protest actions at a conference of the

World Federation of Right To Die Societies.

The Peter Maurin Center in Washington, D.C. was es-

tablished in 1997. In the words of Peter Maurin, the center

Motion, 12

seeks to contribute to creating a “society where it is easier

to be good." The Center does so in three ways: (1) evangeli-

zation in the Catholic Worker tradition through operating

the Catholic Worker Bookstore; (2) carrying out the works

of mercy through operating a furniture and household goods

exchange, whereby people who have more than they need

give it to the Center, which distribute it to needy people;

and (3) organizing for peace and justice through solidarity

with the people of Puerto Rico in their effort to de-colonize,.

and specifically to rid themselves of the Navy at Vieques;

and through work for the abolition of the death penalty,

specifically focusing on the case of Mumia Abu-Jamal. The

Center is concerned with the broad and elastic application

of the RICO act to dissent and nonviolent protest. The mis-

application of the law in this way permits the government to

single out and criminalize movements for social change vir-

tually at will. Affording the government power of this na-

essentially disempowers the People in the political process.

To protect popular, and especially unpopular, political ex-

pression, these effects of the RICO law need to be nullified.

Pax Christi USA is the national Catholic peace move-

ment of 14,000 members who are committed to the gospel

imperative of seeking peace through nonviolence. The

members of this association promote peace through per-

sonal; and social transformation. They frequently engage in

nonviolent protest of policies that undermine peace and jus-

tice.

Plowshares is a coalition of religious believers who

seek to enflesh the words of the prophet Isaiah 2:4, “They

pruning hooks. Nation shall not take up sword against na-

tion and neither shall they study war anymore.” The foun-

ders of this movement, Fr. Daniel Berrigan, SJ., his

brother, Philip Berrigan, and Philip's wife, Elizabeth McAl-

ister, were leaders in the opposition to the Vietnam War.

ence actions, they provided the peace movement with a

Motion, 13

arms race continue today. Fr. Berrigan offered a declaration

before the district court at the stage when it was considering

the issuance of the nationwide injunction against anyone

associated with the Pro-Life Abortion Network [PLAN].

This declaration addresses the severe impact on nonviolent

social protest that flows from treating loose associations of

antiwar protesters as though they were racketeer-influenced

corrupt organizations. The Berrigan brothers and Ms.

McAlister join this brief in their individual capacities, as do

the following Plowshares Activists: John Dear, S.J., Peter

DeMott, Bruce Friedrich, Ellen Grady, Art Laffin, Paul

Magno, Patrick O'Neill, and Kathy Boylan Shields. Fr.

Dear’s writings focus on nonviolence and peacemaking. His

book, Peacemaking Behind Bars, is an account of his time

spent in jail for a 1993 action at Seymour Johnson Air

Force Base in Goldsboro, N.C. He has participated in many

other actions of nonviolent civil disobedience for justice

and peace. All of these activists have spent many years im-

prisoned for their nonviolent protest against war.

Sojourners is a Christian ministry whose mission is to

proclaim and practice the biblical call to integrate spiritual

renewal and social justice. In response to this call, the

members of this community offer a vision for faith in public

life by: publishing Sojourners magazine, and other re-

sources that address issues of faith, politics, and culture

from a biblical perspective; preaching, teaching, organizing,

and public witness; nurturing community by people from

the various traditions and streams of the church; supporting

the work of the Sojourners Neighborhood Center in Wash-

ington, D.C.; hosting an annual program of voluntary ser-

vice for education, ministry, and discipleship. Members of

Sojourners seek to be guided in their lives and work by the

biblical principles of justice, mercy, and humility. —

Southern Christian Leadership Conference [SCLC] is a

nonprofit, non-sectarian, inter-faith advocacy movement of

people and for people, growing out of the deep tradition and

long history of struggle for basic human rights. This move-

ment, grounded in the philosophy of nonviolent resistance,

has roots in the larger history of liberation struggles by

Motion, 14

black people and all oppressed people the world over.

SCLC holds that authentic love demands movement against

injustice as a moral imperative.

Vieques Support Committee is an organization that has

helped to organize civil disobedience to protest the repeated

bombing of Vieques Island in Puerto Rico by the United

States Navy.

Voices in the Wilderness is a group that seeks to end

the economic sanctions against the people of Iraq. The

group sends delegations to Iraq to break the siege and bring

desperately needed medical supplies to children and fami-

lies. It has also sponsored demonstrations against the ongo-

ing sanctions, including week-long fast outside the head-

quarters of the United Nations in New York.

Witnesses for Reconciliation was formerly the Commit-

tee of Southern Churchmen that was founded in the 1960 to

promote the work and vision of Dr. Martin Luther King, Jr.,

and to advance his cause of nonviolence. They promoted,

participated in, and led marches, sit-ins, boycotts, and the

freedom rides. Today they are small but continue to ad-

vance the cause of civil and political rights for minorities.

If uncorrected by this Court, the unwarranted expan-

sion of the federal racketeering law by the court of appeals

will repress the function of popular protest in the American

constitutional order. At the very center of American consti-

tutionalism is the commitment to truths our founders ac-

knowledged as self-evident: that all men and women are

created equal, that they are endowed by their Creator with

certain jnalienable rights (including life, liberty, and the

pursuit of happiness) and that governments instituted to se-

cure these rights derive their just powers from the consent

of the governed. Declaration of Independence, | Stat. 1

(1776); Declaration of Sentiments of the Seneca Falls Con-

vention (1848). It is “We, the People” who ordain and es-

tablish the Constitution for the United States, who ratify it

in popular conventions, and who amend it over time to pro-

vide for a more perfect Union. U.S. Const., Preamble.

The government has from time to time and in various

Motion, 15

ways violated these foundational truths. In such times, the

People have often been the moral compass, disagreeing

with existing policies and calling the nation forward to a

deeper understanding of the fundamental truths at the heart

of the American experiment, such as the right to life and the

right to liberty. The law, in short, has not only been an in-

strument of establishing justice, but has also become a

means of coerced injustice. At each of the critical turning

points in our nation’s history, the People have protested the

moral flaws of the law, whether enacted by the people’s

representatives or pronounced by the judiciary.

Popular resistance to law is not justified merely be-

cause a lot of people engage in it. Lynch mobs were the

classic example of violent popular power that is repugnant

to our Constitutional order. But nothing analogous to that

sort of violence is attributable to any of the petitioners in

this case. The Court should review the decision of the court

of appeals to secure one of the noblest features of American

democracy, the right of the People to engage in non-violent

protest against governmental violence and against violations

of fundamental liberties, including the inalienable right to

life itself.

For the reasons offered above, amici urge the Court to

grant this Motion for leave to file the attached brief amicus

curiae.

Respectfully submitted,

Edward McGlynn Gaffney, Jr. *

Valparaiso Univ. School of Law

Wesemann Hall

Valparaiso, IN 46383

219-465-7860

Counsel of Record

Robert A. Destro

Catholic University of America

Motion, 16

Columbus School of Law

Washington, DC 20064

202-319-5140

Victor Gregory Rosenblum

Northwestern University School of Law

357 East Chicago Ave.

Chicago, IL 60611

312-503-8443

Counsel for Amici Curiae

Brief Amicus Curiae of

Seamless Garment Network, Sojourners,

Southern Christian Leadership Conference, et al.,

in Support of Granting the Petition

Statement of Interest of Amici Curiae

Amici’ are voluntary associations committed to princi-

ples of nonviolent direct action on a wide range of social

issues. Inclusion of an organization on this list does not im-

ply that that organization agrees with the substantive views

of the petitioners about abortion. Some of the organizations

have no official view on that matter; others have views op-

posed to those of the petitioners. But all of the amici,

whether individuals or communities, join this brief because

the novel view of extortion expressed by the court of ap-

peals exposes them to liability under RICO in a manner that

they deem clearly at odds with the history of civil disobedi-

ence in this country and to the core principle of the First

Amendment: the “profound national commitment to the

principle that debate on public issues should be uninhibited,

robust, and wide open.” New York Times v. Sullivan, 376

U.S. 264, 270 (1964).

The particular interests of the amici curiae are stated in

the Motion for Leave to File this brief amicus curiae.

Summary of Argument

If the novel theory of extortion adopted by the court of

appeals were the law of the land at any earlier period of our

history, it would have been a major impediment to all

movements of social protest that have enhanced the protec-

tion of life, liberty, and equality in this nation. In particular

' Pursuant to Rule 37.6 of the Rules of this Court, amici state that

no counsel for a party has authored this brief in whole or in part and that

no person or entity, other than amicus curiae, its members, or its coun-

sel, has made a monetary contribution to the preparation or submission

of this brief.

Brief, 1

Brief, 2

the movements to abolish slavery, to end racial discrimina-

tion, to include women within the franchise and the full ob-

ligations of citizenship, and to end irrational gender dis-

crimination would have been set back severely. This read-

ing of our history cautions against the expansion of civil

RICO to nonviolent protesters who occasionally employ the

tactic of civil disobedience to manifest their protest to the

current status of the law.

Reasons for Granting the Petition

1. As an initial matter, amici note that the first and sec-

ond questions presented in No. 01-1118 address clear and

serious conflicts among the circuits that merit the full atten-

tion of this Court.

A. As to the first question — whether injunctive relief is

available in a private civil action for treble damages brought

under the Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. § 1964(c) - the court of appeals

openly acknowledged that it was departing from the nega-

tive answer previously given to this question by the United

States Court of Appeals for the Ninth Circuit in Religious

Technology Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir.

1986), cert. denied, 479 U.S. 1103 (1987). See No. 01-

1118, Pet. App. 6a-14a. The effect of this ruling was to af-

firm an injunction that should give one pause because of its

stunning breadth (nationwide) and its extended duration

(twelve years). This injunction should trigger alarm bells —

about the direct involvement of the federal judiciary in one

of the most intense political controversies in the nation.

Congress has never said that RICO was intended to become

an instrument of judicial management of intense political

debate. We urge the Court to grant the petition to address

the first question, because the injunction sustained by the

court of appeals is an unprecedented expansion of RICO

unauthorized by the statute.

B. The second question presented is as follows:

“Whether the Hobbs Act, which makes it a crime to ob-

struct, delay, or affect interstate commerce “by robbery or

Brief, 3

extortion’ — and which defines ‘extortion’ as ‘the obtaining

of property from another, with [the owner’s] consent,’

where such consent is ‘induced by the wrongful use of ac-

tual or threatened force, violence, or fear’ (18 U.S.C. §

1951(b\(2) (emphasis added)) — criminalizes the activities

of political protesters who engage in sit-ins and demonstra-

tions that obstruct the public’s access to a business’s prem-

ises and interfere with the freedom of putative customers to

obtain services offered there.” The novel view of extortion

advanced by the court of appeals, Pet. App. 28a-29a, is in

clear and serious conflict with the decisions of other cir-

cuits, see, e.g., United States v. Panaro, 266 F.3d 938

(2001), and United States v. Nedley, 255 F.2d 350, 352-53,

355, 357 (3d Cir. 1958). The decision of the court of ap-

peals in this case also represents a departure from this

Court’s teaching in United States v. Enmons, 410 U.S. 396,

400 (1973) (reversing Hobbs Act convictions of labor union

officials and members who had engaged in acts of physical

violence and destruction of property during a campaign to

induce an employer to agree to a union contract, because

they had acted to further “legitimate union objectives, such

as higher wages in return for genuine services’”’).

C. The third question presented is whether the exacting

standards for the protection of First Amendment rights

mandated by NAACP v. Claiborne Hardware Co., 458 U.S.

886 (1982) were satisfied in the district court, where the

jurors were allowed to hear evidence of episodes com-

pletely unrelated to the petitioners. The court of appeals

held that Claiborne Hardware was fully complied with, No.

01-1118, Pet. App. 14a-22a. Amici are of the view that the

court of appeals paid mere lip service to the caution of two

of the Justices in this case: “Conduct alleged to amount to

Hobbs Act extortion, for example, or one of the other,

somewhat elastic RICO predicate acts may turn out to be

fully protected First Amendment activity, entitling the de-

fendant to dismissal on that basis.” National Organization

for Women v. Scheidler, 510 U.S. 249, 264 (1994) (Souter,

J., concurring, joined by Kennedy, J.) (citing Claiborne

Hardware) The Court should also grant the petition to re-

Brief, 4

view this question.

2. In this brief Amici focus on the second question. We

address one point: if the novel theory of extortion adopted

by the court of appeals were the law of the land at any ear-

lier period of our history, it would have been a major im-

pediment to all movements of social protest that have en-

hanced the protection of life, liberty, and equality in this

nation.

Any serious student of American history is aware that

the struggle to secure these fundamental freedoms has been

deeply conflictual. See, e.g., Howard Zinn, A People’s His-

tory of the United States (1999). This theme of conflict over

basic values recurs in every generation from the founding

moment to the present, from the Boston Tea Party through

antiwar protests (notably during the Mexican-American

War, the Civil War, World War 1, World War II, and the

Vietnam War, and in response to the ongoing presence of

weapons of mass destruction), to the most recent demon-

strations against the New Economic Forum and the global

order that it represents. Thus the controversy over abortion

is by no means the first volatile issue in the nation.

America is a nation with both a strong respect for the

civilizing force of law and a healthy regard for the moral

limits on law itself acknowledged in the tradition of civil

disobedience, including episodes of confrontation with au-

thority, that can be found in virtually every period of

American history. See, e.g., David Weber, ed., Civil Dis-

obedience in America: A Documentary History 185-88

(1978); Carl Cohen, Civil Disobedience: Conscience, Tac-

tics, and the Law (1971), and Edward Madden, Civil Dis-

obedience and Moral Law in Nineteenth-Century American

Philosophy (1968). If the Court grants the petition, Amici

will brief this point more fully, offering the Court several

illustrations of why the view of extortion adopted by the

court of appeals is fun¢amentally at odds with the history of

our nation. At this stage of the proceedings, we think it

enough to focus the discussion on two aspects of our consti-

treating these two central themes, we clarify our reading of

Brief, 5

what the court of appeals did to the law of extortion.

A. The court of appeals sustained the imposition of

massive civil damages upon the three named individual pe-

titioners under the federal racketeering statute. The legal

lynchpin of this use of RICO is that the petitioners con-

ducted or participated in the conduct of the affairs of the

Pro-Life Action Network [PLAN] through a pattern of

“predicate acts” of extortion in violation of the Hobbs Act,

18 U.S.C. §1951, and various state 2xtortion statutes.

To reach this result, the court of appeals sustained the

district court “in all respects,” Pet. App. 31a. The district

court allowed the jury to hear the following evidence as

probative of “extortion.” “Obtaining” property was proved

on respondents’ showing a temporary delay in keeping an

appointment at an abortion clinic (Tr. 5005). The clinics’

lost “property” was the money diverted to “extraordinary

security costs” (Tr. 572). Respondents did not allege or seek

to prove any loss of business per se. Demonstrating, being

in the way, delaying access, without more, was equated

with violence to discourage patients (Tr. 712) from keeping

their appointments and force clinics to pay additional secu-

rity costs (Tr. 607). The court of appeals ruled that any er-

rors that may have occurred in this handling of the evidence

were “harmless,” Pet. App. 30a, because the court of ap-

peals adopted the respondents’ theory that they did not need

to demonstrate that the petitioners sought specifically to

“obtain property,” but that it was enough to demonstrate

that the petitioners interfered with the personal rights of the

owners of abortion clinics: “Property rights include a

woman’s right to choose what to do with an unplanned

pregnancy. Our most precious rights are the intangible ones

like the right to go about our lawful business free from fear.

Interfering with those rights by threats and force and vio-

lence violates RICO.” (Tr. 4987; see also Tr. 550).

As to acts of actual physical violence, the court of ap-

peals sustained the decision of the district court allowing

the plaintiffs to bring a dumpload of irrelevant evidence be-

fore the jury about the conduct of persons never identified

in the trial. Whoever these parties were, their acts against

Brief, 6

various abortion providers (Tr. 685, 687, 723, 1148, 1486,

2147-50) over the fourteen years from 1984 to trial were

most emphatically not the acts of any of the named petition-

ers, all of whom are committed exclusively to nonviolent

protest, sometimes involving illegal acts such as trespass

that are fully punishable under state law. Without a scrap of

evidence that any of these three individuals ever committed

any act of violence at any time, respondents smeared the

petitioners not with a broad stroke, but with a tar brush. For

example, since there was no proof that any petitioner was

responsible for the murders, arsons, and kidnappings that

the respondents introduced into evidence, the district court

excluded such evidence from the trial for the purpose of

blaming defendants, but gave the respondents free rein to

refer to such incidents as “background information” for the

purpose of evaluating whether the petitioners were guilty of

“extortion” (Tr.685, 723, 1486, 5181).

This is not harmless error. This is the pollution of the

wellspring of justice. Presentation of evidence of this kind

to a jury cannot be cured with a teaspoon of medicine at the

end of the trial asking the jury to ignore what it was allowed

to hear as part of the “context” within which they should

evaluate the words and speeches of the petitioners, to de-

termine whether these words constituted “threats” of “vio-

lence.” (Tr. 5187) For example, when a clinic operator was

not present, Mr. Scheidler went to the clinic to meet with

her, he left his card and wrote on the back of it two words,

“Choose Life.” Petitioners were not allowed to testify that

the phrase was from the Bible” and was used to encourage

respect for all human life. (Tr.1489) Neither were the peti-

tioners allowed to present counter-contextual evidence in

rebuttal. This is the record upon which the court of appeals

? The author of the words is Moses; the context of his well-known

sermon to the people of Israel is as follows: “I call heaven and earth to

witness against you today that I have set before you life and death,

blessings and curses. Choose life so that you and your descendants may

live, loving the LoRD your God, obeying him, and holding fast to him;

for that means life to you and length of days, so that you may live in the

land that the LORD swore to give to your ancestors, to Abraham, to

Isaac, and to Jacob.” (Deuteronomy 30: 18-20).

Brief, 7

fashioned its novel claim that proof of extortion under the

Hobbs Act does not require a showing of “obtaining prop-

erty” in any sense remotely like what the common law of

extortion has traditionally meant. See Craig Bradley, NOW

v. Scheidler: RICO Meets the First Amendment, 1994

SUPREME COURT REVIEW 129; Note, Protesters, Extortion,

and Coercion: Preventing RICO from Chilling First

Amendment Freedoms, 75 NOTRE DAME L. REV. 691

(1999).

B. If the view of the court of appeals described above

had been the law of the land during the period of American

slavery and Jim Crow, the overcoming of those twin evils

would have been postponed for much longer than the time

actually needed to do so.

As Justice Marshall reminded us during the Bicenten-

nial of our Constitution, not everything about this country's

past — including slavery and Jim Crow segregation -— is

cause for rejoicing. Thurgood Marshall, Reflections on the

Bicentennial of the United States Constitution, 26

VALPARAISO U. L. REV. 21 (1991).

In recent times we frequently compared ourselves fa-

-vorably to totalitarian regimes of the Left and the Right that

swallowed up their opposition, sending them to the death

camps and the Gulags for extermination. We take some

pride in the way we have respected the strong voice of pro-

test within our legal and political culture. Perhaps we have

taken too much pride in our treatment of dissidents in view

of the harsh penalties that were frequently applied to them.

Whatever the right blend of pride and humility about our

past, it is undeniable that our dissidents have at many criti-

cal turning points of American history helped to shape our

destiny. But it has been a lot easier to recognize the value of

protesters espoused was more broadly received by the peo-

ple and incorporated into our laws.

Nearly everyone in America would now regard the

eradication of the slavery system as the just and rightful re-

pudiation of a brutal and inhuman labor system. Some

Brief, 8

and with less bloodshed on the battlefields of the Civil War

if the Abolitionists had been more “accommodating” to

their adversaries, but this revisionist view overlooks the

rigid mindset of the slaveholders who would brook no com-

promise on the matter of slavery as an “inalienable property

right” bound up in their minds with an intractable position

on state sovereignty.

Whatever the possible outcome of alternative hypo-

thetical scenarios, the Abolitionists pressed ground-

breaking ideas. The most famous of the Abolitionists, Wil-

liam Lloyd Garrison, was uncompromising in his campaign

for immediate and complete abolition of slavery. In the first

issue of The Liberator (Jan. 1, 1831) Garrison publicly re-

nounced his previous position of gradual abolition and pub-

licly asked “pardon of my God, of my country, and of my

brethren, the poor slaves, for having uttered a [gradualist]

sentiment so full of timidity, injustice and absurdity." And

he wrote: "urge me not to use moderation in a cause like the

present! | am in earnest. I will not equivocate — | will not

excuse — | will not retreat a single inch - AND | WILL BE

HEARD" (emphasis in original), as cited in Louis

Ruchames, ed., The Abolitionists: A Collection of Their

Writings 31 (1963). :

The American Anti-Slavery Society, of which Garrison

was President from 1843 to 1865, regularly burned a copy

of the Constitution at its annual meeting in Boston, de-

nouncing that document — because of its flawed compro-

mise on slavery — as “a covenant with death, a compact with

hell” (citing /saiah 28:15), see Phillip S. Paludan, A Cove-

nant with Death: The Constitution, Law, and Equality in the

Civil War Era (1975). Under modern precedents that sort

of activity would probably be deemed protected. See Texas

v. Johnson, 491 U.S. 397 (1989) (burning of American flag

- but see United States v. O'Brien, 391 U.S. 367 |

(1968) (bvrning of draft card not protected). Under the law

as it then stood, these acts were not protected under the First

Amendment. But at least no one imagined that the protest

activity of the Abolitionists fell within the law of extortion.

operation of the "Underground Railroad” to assist slaves to

Brief, 9

flee from their masters, see Edward McGlynn Gaffney,

Politics Without Brackets on Religious Convictions, 64

TULANE L. REV. 1143, 1160 (1990), and the “rescuing” of

Slaves from the very courtrooms where their extradition

hearings under the Fugitive Slave Act were being held, see

Aviam Soifer, Status, Contract, and Promises Unkept, 96

YALE L. J. 1916, 1919 (1987), and Stephen Campbell, The

Slave Catchers 149 (1968). The Abolitionists suffered vio-

lence for their views not only at the hands of private parties,

but also at the hands of the government.

Less famous Abolitionists may have been more effec-

tive in moving the hearts of their countrymen, but Garrison

and the Abolitionists were ultimately heard. As Garrison

accurately predicted in the opening issue of The Liberator,

"POSTERITY WILL BEAR TESTIMONY THAT I WAS

RIGHT" (emphasis in original), as cited in Ruchames, ed.,

The Abolitionists, supra at 31. Although not all of the acts

of the Abolitionists would gain support even today, the ba-

sic thrust of their movement has now clearly prevailed in

American law.

Decades after the failure of the problematic period of

“Reconstruction,” we are now more committed than ever to

the enforcement of the Civil War Amendments that would

have been inconceivable without the firm resolve of the

"Radical Republicans" and their moral progenitors, the

Abolitionists.

The Jim Crow system was as iniquitous at its core as it

was violent in the pattern of enforcement by the govern-

ment at the state and local levels. See, e.g.,C. Vann Wood-

ward, The Strange Career of Jim Crow (3d ed. 1974). In the

face of such systemic violence imbedded in the law, the

Civil Rights Movement was remarkable precisely for the

commitment of its leaders, principally Dr. Martin Luther

King, Jr., to Gandhian nonviolence. But as Dr. King made

clear in his famous Letter from Birmingham Jail, nonvio-

King and his followers in the Southern Christian Leadership

Conference frequently challenged the brutality of the exist-

ing legal order. See, e.g., Taylor Branch, Parting the Waters

(1988) (use of tactics of civil disobedience similar to those

Brief, 10

used by the petitioners in this case).

Amici note that - as in the period of abolitionism — the

violence surrounding civil disobedience in the era of the

Civil Rights Movement was committed primarily not by the

protesters, but against them by their adversaries or by the

police. Bull Connor undoubtedly thought he was preserving

the peace against lawless agitators in Birmingham, but most

of America saw the violence in the bared teeth of his dogs.

Memorable uses of civil disobedience in the era of the

modern Civil Rights Movement included the efforts of the

freedom riders and of the people who "sat in" places of pub-

lic accommodation that were segregated on the basis of

race. In some cases this Court overturned convictions for

breach of the peace or for trespass under state law, perhaps

for the reason that the Court could no longer countenance

the underlying state legislation requiring Jim Crow segrega-

tion, see, e.g., Brown v. Louisiana, 383 U.S. 131 (1966).° In

other instances the Court declined to reverse criminal con-

victions of protestors under state law, pointing to other di-

mensions of the facts, such as the integrity of the state

courthouse or a State jailhouse. See, e.g., Cox v. Louisiana,

379 U.S. 559 (1965); Adderley v. Florida, 385 U.S. 39

(1966). No matter which way these cases turned, the ines-

capable fact is that civil rights activists engaged in acts of

civil disobedience that would have been seriously impeded

if the novel view of “extortion” adopted by the court of ap-

peals had been the law of the land at that time.

The nation is now better off because of the movements

to abolish slavery and to end Jim Crow law. Both of these

to maintain the status quo. The opponents of these move-

ments could easily have crushed the protesters if the theory

of extortion adopted by the court of appeals had been avail-

able to them during these conflic’-d periods of American

> Im a series of “sit-in” cases brought before the enactment of Title

Il of the Civil Rights Act of 1964, the Court declined to hold expressly

that the Jim Crow laws were themselves unconstitutional, but found an

alternative ground on which to reverse the State law conviction. See,

eg., Bowie v. Cohanbia, 378 U.S. 347 (1964); Bell v. Maryland, 378

U.S. 226 (1964).

Brief, 11

history.

The district court acknowledged the relevance of this

period of history to this case, which he agreed was “analo-

gous to sit-ins at lunch counters and Rosa Parks’ civil dis-

obedience.” Pet. App. 73a, see also Tr. 4339-40. But Judge

Coar curiously concluded that the analogy with the sit-ins

and the refusal to move to the back of the bus “works in [re-

spondents’] favor” because those protesters were “arrested,

jailed, and otherwise punished.” Pet. App 73a. No one

would seriously maintain that Martin Luther King, Jr., or

his colleagues in the SCLC, were the sort of “racketeer” that

Congress had in mind when it enacted RICO. The district

court was understandably perplexed by the implication that

some of his own rulings would have thrown an enormous

obstacle in the path of the Civil Rights Movement. But it

did not lead him to instruct the jury in the manner required

by Claiborne Hardware. Though briefed on these matters,

the court of appeals completely ignored this history in its

discussion of the case.

C. If the view of the court of appeals had been the law

of the land during the period of feminist insistence upon full

participation in the rights and obligations of citizenship,

equal justice under law for women and men would have

taken much longer than the two centuries it took to achieve.

Many scholars have noted strong parallels between the

slavery system and the abusive treatment of women as

“chattels personal” subject to the law of coverture enacted

by all-male legislatures and enforced by all-male courts.

Women wanted to participate in the franchise and in all of

the obligations of citizenship from the very outset of the

republic. They were excluded from doing so on the basis of

the theory of virtual representation, the very theory that the

revolutionaries used to reject the imperial rule of Great

Britain over the American colonies. See, e¢.g., Linda K.

Kerner, No Constitutional Right to Be Ladies: Women and

the Obligations of Citizenship 3-33 (1998).

As with the struggle to abolish slavery and then to

eradicate the legal structure of apartheid, the effort to

change the inequality between men and women under the

Brief, 12

law of this land was a prolonged and intense controversy.

The feminists of the nineteenth century may not be con-

tained within rosy-tinted portraits. Susan B. Anthony is now

featured on the most valuable of our coins and is rightly

remembered as the principal advocate for the enfranchise-

ment of women. She was also an agent of the American

Anti-Slavery Society. In this capacity she urged an audience

before the Civil War to “overthrow this government, com-

mit its blood-stained Constitution to the flames, blot out

every vestige of that guilty bargain of the father.” As cited

in Alma Luz, "Susan Brownell Anthony,” in 1 Notable

American Women, 1607-1950: A Biographical Dictionary

53 (Edward James ed. 1971).

Eight decades after the adoption of the Nineteenth —

Amendment we now take for granted that women should be

able to vote. But Anthony's advocacy of this view was

never easy. For example, Anthony challenged the legiti-

macy of the all-male franchise by voting in Rochester in

1872 before a constitutional amendment expressly allowed

it. She was convicted of voting fraud after a member of this

Court, Justice Ward Hunt, disallowed the introduction of

exculpatory evidence and directed the jury to enter a verdict

en ae

dence. United States v. Anthony, 24 F. Cas. 829

(C.C.N.D.N.Y. 1873). Such judicial misconduct is reminis-

cent of the egregious behavior of Justice Chase presiding

over trials under the infamous Sedition Act of 1798. See

William H. Rehnquist, Grand Inquests: The Historic Im-

peachments of Justice Samuel Chase and President Andrew

Johnson (1992).

The transcript of Anthony's bold statement before her

seatencing makes clear that she was prepared to risk not

only violating the law as it then stood, but also to risk being

though Justice Hunt demanded that Anthony sit down and

be silent, warning her seven times to the effect that “The

Court can not allow the prisoner to go on.” After she finally

sat down, the Court required her to stand up to hear her sen-

tence, and she then told the Court: “May it please your

Brief, 13

honor, I shall never pay a dollar of your unjust penalty... |

shall earnestly and persistently continue to urge all women

to the practical recognition of the old revolutionary maxim,

that ‘Resistance to tyranny is obedience to God.’” David

Weber, ed., Civil Disobedience in America: A Documentary

History 185-88 (1978).

Anthony's views were ultimately vindicated by the en-

actment of the Thirteenth Amendment abolishing slavery

and the Nineteenth Amendment enfranchising women. But

the Thirteenth Amendment was ratified in 1865 only after

the Civil War, and the Nineteenth Amendment was ratified

in 1920 only after several further bold acts of public protest

unmasking the “hypocrisy” of President Woodrow Wilson's

commitment to wage war for democracy for males in

Europe, but not to proceed peacefully within our constitu-

tional processes to secure the franchise for females in

America. Like the Abolitionists, the Suffragists suffered

violence. Federal troops dispatched by President Wilson

broke up a peaceful protest in the nation's capital.

As the-court of appeals noted in the first phase of this

litigation, women played a leading role in the temperance

movement. National Organization for Women v. Scheidler,

968 F. 2d 612, 620 (7th Cir. 1992). There is a striking simi-

larity between the acts of the petitioners complained of here

and the militant tactics employed by famous nineteenth cen-

tury feminists who led the temperance movement. For ex-

ample, Carry Nation and others like her applied constant

moral pressure on owners of saloons to discontinue their

sale of alcohol, and were willing to disrupt their business by

charging into saloons and destroying kegs of whiskey and

beer with an ax. See, e.g., Jack Clocker, "Give to the Winds

Thy Fears": The Women's Temperance Crusade, 1873-1874

50, 76-77, 197 (1985) (describing violence against protest-

ers); Joseph Gasfield, Symbolic Crusade: Status Politics &

the American Temperance Movement (2d ed. 1986); Mother

Stewart, Memories of the Crusade, A Thrilling Account of

the Great Uprising of the Women of Ohio in 1873, Against

the Liquor Crime (1972).

riod while the ratification of the Equal Rights Amendment

Brief, 14

was being debated are reminiscent of those during the Civil

Rights Movement. The golden rule, or equal justice under

law, suggests that the standards applied to the respondents

in that period should also apply to the petitioners in the era

of contestation over abortion.

The abolitionists and those engaged in the modern

Civil Rights Movement sometimes engaged in civil disobe-

dience to help raise the awareness of the nation that the rule

of law that covnt:nanced slavery and then apartheid was

intolerable. The feminists of the nineteenth century and

those engaged in the modern movement for gender equality

also engaged in civil disobedience to bear witness to the

injustice of rules of law imposed upon women without their

consent by all-male legislatures in which they had neither

voice nor vote. If the novel view of extortion espoused by

the court of appeals — equating trespass with “obtaining

property” — had been the law of the land in any of these

eras, it would probably have taken much longer to achieve

the prohibition of discrimination on the basis of race, color

and gender contained in statutes such as the Civil Rights

Act of 1964 and the Voting Rights Act of 1965. .

This Court has been especially alert to the fragility of

movements protesting against deprivations of liberty and

equality. In New York Times v. Sullivan, 376 U.S. 264

(1964), the Court protected the assets not only of the coun-

try’s most powerful newspaper, but also one of the weakest

and most vulnerable movements of that era, which would

not have survived if its political adversaries had been per-

mitted to use state libel law to impose runaway monetary

judgments against it. See, e.g, Anthony Lewis, Make No

Law: The Sullivan Case and the First Amendment (1991).

The Court should act now with no less solicitude to secure

the freedom of expression on controversial matters to all

classes of protesters without discrimination on the basis of

the content of their speech or the viewpoint they express.

The Court should take this case to set sensible limits upon

the use of civil RICO that are informed by our nation’s his-

tory and by the principles of the First Amendment. To do so

would reinforce the “profound national commitment to the

principle that debate on public issues should be uninhibited,

Brief, 15

robust, and wide open.” New York Times v. Sullivan, 376

U.S. , at 270.

Conclusion

One of the easiest ways to know that the court of ap-

peals is wrong in its reading of the law of extortion is that it

is so profoundly out of kilter with this nation’s history. This

Court should take this case to correct a problem that is

bound to wreck a lot of mischief unless the Court withdraws

the federal judiciary from heavy-handed and one-sided in-

tervention in contentious political controversies better left

to the People and to their elected representatives. If the fed-

eral racketeering law is to be expanded far beyond the reach

and grab of its original scope, that task should be accom-

plished by statutory amendment, not by judicial sleight of

hand. If RICO is to become an instrument of shackling

popular protest in political controversies, let the People’s

elected representatives in Congress — not the courts — inflict

such a wound on the democracy. The Court should grant the

petition for a writ of certiorari.

Respectfully submitted,

Edward McGlynn Gaffney, Jr. *

Valparaiso University School of Law

Wesemann Hall

Valparaiso, IN 46383

219-465-7860

* Counsel of Record

Robert A. Destro

Catholic University of America

Columbus School of Law

Washington, DC 20064

202-319-5140

Victor Gregory Rosenblum

Brief, 16

Northwestern University School of Law

357 East Chicago Ave.

Chicago, IL 60611

312-503-8443