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

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Nos. O1-1118. 01-1119

=~ CLERK

IN THE — enema

Supreme Court of the Gnited States

JOSEPH SCHEIDLER, ET AL, Petitioners,

NATIONAL ORGANIZATION

FOR WOMEN, INC., ET AL, Respondents.

OPERATION RESCUE, Petitioner,

NATIONAL ORGANIZATION

FOR WOMEN, INC. ET AL., Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Seventh Circuit

eee OOOO

BRIEF FOR PETITIONER OPERATION RESCUE

WALTER M. WEBER JAY ALAN SEKULOW

LARRY L. CRAIN Counsel of Record

DAVID A. CORTMAN COLBY M. MAY

ee FOR JAMES M. HENDERSON, SR.

HitnpmweeR X

Alexandria. VA 22314 AMERICAN CENTER FOR

(703) 740-1450 LAW & JUSTICE

~ ——205 Third Street. S.E.

THOMAS P. MONAGHAN Washington, DC 20003

CHARLES E. RICE (202) 546-8890

CENTER FOR LAW AND

JUSTICE INTERNATIONAL

6375 New Hope Road

New Hope, KY 40052

(502) 549-5454

Attorneys for Operation Rescue, Petitioner in No. 01-1119

i a

QUESTIONS PRESENTED

Whether the Seventh Circuit correctly held, in

acknowledged conflict with the Ninth Circuit, that

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).

Whether the Hobbs Act. which makes it a 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,” where such consent is "induced by the wrongful

use of actual 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

demonstrations that obstruct the public's access to a

business's premises and interfere with the freedom of

putative customers to obtain services offered there.

PARTIES

In addition to petitioner Operation Rescue,' the following

parties were defendants-appellants in the Seventh Circuit and

are petitioners here:

Joseph M. Scheidler

Pro-Life Action League. Inc.

Andrew D. Scholberg

Timothy Murphy

Respondent National Organization for Women, Inc. (NOW),

plaintiff-appellee below. sued on behalf of itself and its

members and was certified as representative of the plaintiff

“class of women who are not NOW members and whose rights

to the services of women's health centers in the United States at

which abortions are performed have been or will be interfered

with by defendants’ unlawful activities.” OR Pet. App. 269a. In

addition, there are two other named respondents, the Delaware

Women's Health Organization, Inc. (DWHO) and the Summit

Women's Health Organization, Inc. (Summit). Both DWHO

and Summit sued on behalf of themselves and were certified as

representatives of the plaintiff “class of all women's health

centers in the United States at which abortions are performed.”

Id. These respondents. like NOW. were plaintiffs-appellees in

the Seventh Circuit.

‘Operation Rescue is not a corporation. See S. Ct. Rule 29.6.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................ i

PRE Whe adnaWiuwilveweseennucccekaceccndeuas il

TABLE OF AUTHORITIES ....................... vi

ABBREVIATIONS KEY ......................... XIV

DECISIONS BELOW ............................. l

JURISDICTION ... 2... l

DUPEUMUEE Sn vencscveccescccescecesceccencecec.. l

STATEMENT OF THECASE ...................... l

SUMMARY OF ARGUMENT ...................... 6

ARGUMENT ................. 00.0 ccc eee ee eee. 8

| I. RICO DOES NOT AUTHORIZE PRIVATE

INJUNCTIVE RELIEF ......................... 8

A. RICO's Statutory Text ..........0............. 9

1. Expressio unius ....... TeTtT TTT TT TTT Tree 9

2. The antitrust parallel ....................... ll

B. RICO's Legislative History .................. 15

1. Selection of treble damages wemedy ........... 15

2. Rejection of private injunctive remedy ......... 16

C. The Counterarguments ..................... 18

Se ge eee ee 20

2. Subsection (a) as creating remedies ........... 22

I ccccockactecedaveeandes 23

ll. THE HOBBS ACT PREDICATES WERE

ES 50 Concdbevebeeudsassecisaceduesses 24

A. Distortion of Hobbs Act Extortion .............. 28

1. Missing elements of Hobbs Act extortion ....... 29

DR Fee CE, con coascucesacuscesserns 29

i. Plain meaning of “obtaining” .......... 33

ii. Meaning of “obtaining” under New York

en cccecccarsinebbcesetes 33

iii. “Obtaining” at common law: extortion vs.

GEE nc Kkucccsacccansccscaseawas 35

(a) Extortion atcommon law ......... 36

(b) Statutory distinction between

extortion and coercion ........... 37

D. GaP ED wasencaesevccccccsucoetsin 39

B.. Fee WE eeedusocdeccocncedctcéocce 42

d. No “force, violence, or fear" .............. 43

SS gg Tee a4

2. Rules of statutory construction ............... 46

a. Avoiding constitutional difficulties ........ 46

Di BED nindvcesdendewnduetccscueses 47

STE Sresdudcodeanedscecnanene 49

B. Impact of Hobbs Act Error on Disposition of Case . 49

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

Agency Holding Corp. v. Malley-Duff &

Assocs., 483 U.S. 143 (1987) ............ 13, 14, 15, 17

Beck v. Prupis. 529 U.S. 494 (2000) ................. 14

Bouie v. City of Columbia. 378 U.S. 347 (1964) ........ 47

Bray v. Alexandria Women’s Health Clinic,

PPE codecideneéesceceesicses 45. 46

California v. American Stores Co., 495 U.S. 271

Pi cdséacbenénccctadebenceedcnsuevasesuches 12

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 46

Carpenter v. United States, 484 U.S. 19 (1987) ........ 41

Chambers Dev. Co. v. Browning-Ferris Indus.,

590 F. Supp. 1528 (W.D. Pa. 1984) ............... 19

Cleveland v. United States, 531 U.S. 12 (2000)... 40,41, 42

Curley v. Cumberland Farms Dairy, Inc..

Fee oo ED BEE GN SHEED cccvcndscccccucees 19

DeMent v. Abbott Capital Corp., 589 F. Supp.

Se SEE cha eee eadevnsdaneddand de 9,21

Evans v. United States, 504 U.S. 255 (1992) .. 31, 33, 35, 36

First Nat'l Bank and Trust Co. v. Hollingsworth,

701 F. Supp. 701 (W.D. Ark. 1988) ............... 19

In re Fredeman Litig., 843 F.2d 821

I oi ss owes gh ak ee aaa 9, 15. 23

Vil

Gregory v. Ashcroft. 501 U.S. 452 (1991) .............

Holmes v. SIPC. 503 U.S. 258 (1992) ............. 13,

Holmes Group Inc. v. Vornado Air Circulation Sys.,

Inc., 122 S. Ct. 1889 (2002) .................. 23.

Jacques Ferber, Inc. v. Bateman, No. 99-CV-2277

(E.D. Pa. filed May 3. 1999) .....................

Jett v. Dallas Indep. Sch. Dist.. 491 U.S. 701 (1989) .

Kaushal v. State Bank of India, 556 F. Supp. 576

PME UED nawdRdndews eebbuneceevdeetaus 9.

Klehr v. A.O. Smith Harvestore Products, Inc..

Se OUP cuccccwdéccceccncécccnsincan

McCormick v. United States, 500 U.S. 257 (1991) ... 43.

McNally v. United States, 483 U.S. 350 (1987) ... 40, 41.

Middlesex County Sewerage Auth. v. Nat'l Sea

Clammers Ass'n, 453 U.S. 1(1981) ...............

Minnesota v. Northern Sec. Co., 194 U.S. 48

Pe sunansteabbethbudedhsdndcnndues 11, 12, 21,

Morissette v. United States, 342 U.S. 246 (1952) .......

Motorola Credit Corp. v. Uzan, No. 02 Civ. 666, 2002

U.S. Dist. LEXIS 9118 (S.D.N.Y. May 21, 2002) .....

NAACP y. Claiborne Hardware Co.. 458 U.S. 886

PE, SichNGvedetdinine den wndealeSl odeeus 32,

National Organization for Women v. Scheidler.

765 F. Supp. 937 (N.D. Il. 1991) .................

vill

National Organization for Women v. Scheidler.

968 F.2d 612 (7th Cir. 1992) ... 6... eee eee eee eee l

National Organization for Women v. Scheidler,

5O8 U.S. 971 (1993) 0... ccc eee ce eee erent eeeees |

National Organization for Women v. Scheidler,

510 U.S. 249 (1994) 2... cece ec cece eee rere eeees l

National Organization for Women v. Scheidler.

897 F. Supp. 1047 (N.D. Ill. 1995) ......--. 1,5, 19, 26

National Organization for Women v. Scheidler,

172 F.R.D. 351 (N.D. Ill. 1997)... 2.0 ee eee eee eee |

National Organization for Women v. Scheidler,

267 F.3d 687 (7th Cir. 2001) .....--- 0 ee eee 1, passim

Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of

R.R. Passengers, 414 U.S. 453 (1974) ...-. +--+ +++: 11

New York v. United States, 505 U.S. 144 (ERGED ccvcccves 47

Northeast Women's Center Inc. v. McMonagle,

868 F.2d 1342 (3d Cir.), cert. denied,

493 U.S. 9O1 (1989)... 6. ee eee renee 28, 38, 39

Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971)... 2 ee eee eee teenies 46

Paine Lumber Co. v. Neal, 244 U.S. 459 (1917) ..... 11,21

People v. Ryan, 232 N.Y. 234, 133 N.E. 572 (1921) ..... 34

People v. Squillante, 18 Misc. 2d 561,

185 N.Y.S.2d 357 (Sup. Ct. 1959) ......----- eevee 34

People v. Whaley, 6 Cow. 661 (N.Y. 1827) .....---+06- 34

P.R.F., Inc. v. Philips Credit Corp.. No. CIV 92-2266CCC.

1992 WL 385170 (D.P.R. Dec. 21, 1992) ........... 19

Religious Technology Center v. Wollersheim,

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

cert. denied, 479 U.S. 1103 (1987) .......... 8, passim

Reves v. Ernst & Young, 507 U.S. 170 (1993) ....... 18, 23

Rotella v. Wood, 528 U.S. 549 (2000) ...........4445. 14

Russello v. United States, 464 U.S. 16 (1983) .... 10, 18, 33

Rust v. Sullivan, 500 U.S. 173 (1991) ...........445.. 46

Sedima, S.P.R.L. v. Imrex, 741 F.2d 482

(2d Cir. 1984), rev'd, 473 U.S. 479 (1985) ..... 9.17.21

Sedima, S.P.R.L. v. Imrex Co..

I EO ee 13, 14, 15, 16, 17

Steel Co. v. Citizens for a Better Environment,

PE MEPCEEED. bc cc6sseusadcdsseeveseoscoces 23

Stephens Group, Inc. v. Voices for Animals, No.

00:5518 (JEI) (D.N.J. First Amended and

Supplemental Complaint filed Apr. 17, 2001) ........ 27

Taylor v. United States, 495 U.S. 575 (1990) ....... 35, 50

Thornhill v. Alabama, 310 U.S. 88 (1940)............. 46

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ... 22

Town of West Hartford v. Operation Rescue,

pe Lt, le 3 reer rrr 43

Transamerica Mortgage Advisors, Inc. v. Lewis,

GOOTEE, BEET PED cccccccccccscccesccceccccess 11

United States v. Anderson, 716 F.2d 446

SUG: GED Soba sevebuscivatieseevevdsnes 38, 39

United States v. Bass, 404 U.S. 336 (1971) ......... 44, 48

United States v. Caldes, 457 F.2d 74 (9th Cir. 1972) .... 44

United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979),

cert. denied, 444 U.S. 1043 (1980) ................ 38

United States v. Culbert, 435 U.S. 371 (1978) ......... 43

United States v. Delano, 55 F.3d 720 (2d Cir. 1995) ..... 35

United States v. Enmons, 410 U.S. 396 (1973) .. 30, passim

United States v. Green. 350 U.S. 415 (1956) .......... 39

United States v. Kozminski, 487 U.S. 931 (1988) ....... 49

United States v. Nardello, 393 U.S. 286 (1969) ..... 38, 49

United States v. Nedley, 255 F.2d 350

SPE CID nied ddeu she dese kdseckasanvenen 34, 3S

United States v. Private Sanitation Indus. Ass'n,

Toa F. Sam. LAGS LDA Y. 1992) nn cccccccccsecs 38

United States v. Starks, 515 F.2d 112 (3d Cir. 1975) .... 38

United States v. Staszcuk, 517 F.2d 53 (7th Cir.)

(en banc), cert. denied, 423 U.S. 837 (1975) ........ 48

United States v. Sweeney, 262 F.2d 272 (3d Cir. 1959) .. 39

United States v. Turkette, 452 U.S. 576 (1981) ......... 33

Vietnam Veterans of America, Inc. v. Guerdon

Indus., Inc., 644 F. Supp. 951 (D. Del. 1986) ........ 19

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES

US. Comet. emmem bo ccc cc ccc cc cccsccccrsceseses 46

US. Commt. emmemd. Vi. wc cc ccc cccccccccvccccess 46. 47

GE cc ccdwowncwsdee cecnecetestacuneas 30

Te , . daedeweneeueadeesececen nes 30

EOD nods cédnvccsacedtvacosecsace 12, 13, 21

ED onde eckerecdnetcecuenepesensus 12,21

CR OUD nn cous caewhec60-04 9490805000880 0% 30

DECRIED cu chedpececcnddedescocececeseuess 48

Re Ec a ctvdecvercecreendtesveseesets 30

CR ED oc ccc cedneessivtvvdscosenncsoes 30

EEE BEE co ccccddcvcssdccecesvvevesen i, passim

UNE icc becctceessevenssescvetesse 4, 6, 25

ER ED cdccakecoscesdecdrvctovceseves 1, 25

POOR ED dco ctsidovccsvcdiedescosectocones 25

PTET, DIES cece crecccceseccesccseceees i, passim

, ble >. rrr rr rer eer rr |

SACD ccvtccécctccdssccvecinccscaseeeens 26

Fed. R. Civ. P. GOD) 2. cnc cc cc ccccccccccseccccccces 3

xii

OTHER AUTHORITIES

31A Am. Jur. 2d Extortion, Blackmail, and Threats

en a ee oe ts ke bk us 35

4 W. Blackstone, Commentaries .................00. 36

Black's Law Dictionary (5th ed. 1979) ............... 33

Blakey & Roddy, Reflections on Reves v. Ernst &

Young: Its Meaning and Impact on Substantive,

Accessory, Aiding Abetting and Conspiracy Liability

(Under RICO), 33 Am. Crim. L. Rev. 1345

SR a a bc cddncredbsacbeevedbaresadesddaess’ 38

3 E. Coke, First Institute (J. Thomas ed. 1826) ......... 36

Pe GD Cs DEPEND 0 Kohn cc cb sucnsccepacene 43

SED Come, TENS. GOO GND 6s cc ccc civccceccess 16

116 Cong. Rec. 27,738-39 (1970) ................... 16

116 Cong. Rec. 35,227-28 (1970) ......... ccc eceees 17

116 Cong. Rec. 35,346-47 (1970) ........ cc ccccceess 17

117 Cong. Rec. 46,386, 46,393 (1971) ............4.. 17

118 Cong. Rec. 29,368, 29,370 (1972) ............... 18

SO Gee, Cee, RPO PPUPEEEUED 66 ccs concccccccenes 18

Field Code $§ 584,613 (1865) ........ccccccccccess 34

"Furrier files RICO Suit to Halt Anti-Fur

Protesters’ Excesses,” 15 Civil RICO

Litigation Rptr. No. 9, p. 3 (May 1999) ............. 27

X1il

"Furriers file a RICO suit over animal rights

projects,” The Star-Ledger, Aug. 6.1999 ........... 28

H.R. 19215, §§ 584, 91st Cong., 2d Sess. (1970) ....... 16

H.R. Rep. No. 1549, 91st Cong.. 2d Sess. 58

(1970), reprinted in U.S.C.C.A.N. 4007, 4034 ....... 16

W. Hawkins, A Treatise of the Pleas of the Crown

ccehckcs bce dha 6 ebeak eeu baes 608 37

Lindgren, The Elusive Distinction Between Bribery

and Extortion: from the Common Law to the

Hobbs Act, 35 UCLA L. Rev. 815 (1988) ........ 36, 37

RE EL AE en ee 37

Note, Protesters, Extortion, and Coercion: Preventing

RICO From Chilling First Amendment Freedoms,

75 Notre Dame L. Rev. 691 (1999) .......... 25, 29, 53

Oversight Hearing Addressing the Civil Application of

the Racketeeriz.2 Influenced and Corrupt Organization

Act (RICO) to Nonviolent Advocacy Groups, Before

the Subcomm. on Crime of the House Comm. on the

Judiciary, 105th Cong., 2d Sess. (1998) ............ 27

Oxford English Dictionary, vol. 10 (2d ed. 1989) ....... 33

Victims of Crime: Hearings on S. 16, S. 33, S. 750,

S. 1946, S. 2087, S. 2426, S. 2748, S. 2856, S. 2994,

and S. 2995 Before the Subcomm. on Criminal

Laws and Procedures of the Senate Comm. on the

Judiciary, 92d Cong., Ist Sess. (1970-1971) ......... 17

XIV

ABBREVIATIONS KEY

App. Appendix

JA Joint Appendix

Opp. Brief in Opposition

OR Petitioner Operation Rescue

(No. 01-1119)

PA Plaintiffs’ Appendix in the Seventh

Circuit

Pet. Petition for Writ of Certiorari

RA Appendix to OR's Reply to Brief in

Opposition (No. 01-1119)

Resp. Response in Support of Petition for Writ

of Certiorari (No. 01-1118)

Sch. Petitioners Joseph Scheidler, et al.

(No. 01-1118)

Tr. Transcript of trial

DECISIONS BELOW

All pertinent decisions in this case to date are entitled

National Organization for Women v. Scheidler. The district

court's original dismissal of the case appears at 765 F. Supp.

937 (N.D. Ill. 1991), and the Seventh Circuit's affirmance at

968 F.2d 612 (7th Cir. 1992). This Court's previous partial

grant of certiorari appears at 508 U.S. 971 (1993), and

subsequent reversal at 510 U.S. 249 (1994). On reman?, the

district court's partial dismissal of the case appears at 897 F.

Supp. 1047 (N.D. Ill. 1995), and the district court's certification

of plaintiff classes appears at 172 F.R.D. 351 (N.D. Ill. 1997).

The Seventh Circuit's decision below, affirming judgment for

respondents, appears at 267 F.3d 687 (7th Cir. 2001).

JURISDICTION

The U.S. Court of Appeals rendered its panel decision on

October 2, 2001, and denied timely petitions for rehearing and

rehearing en banc on October 29, 2001. Petitioners filed timely

petitions for certiorari on January 28, 2002. This Court granted

certiorari on April 22, 2002. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTES

The Appendix to OR's Petition for Certiorari contains the

text of the Hobbs Act, 18 U.S.C. § 1951 (App. N), and excerpts

of the federal Racketeer Influenced and Corrupt Organizations

(RICO) statute, 18 U.S.C. §§ 1961, 1964 (App. O).

STATEMENT OF THE CASE

This is acivil RICO case. Respondents -- plaintiffs below --

are the National Organization for Women, Inc. (NOW), the

Delaware Women's Health Organization (DWHO), the Summit

Women's Health Organization (Summit), and the classes they

were certified to represent. (The plaintiffs changed over the

course of the litigation. For convenience, this brief refers

collectively to "NOW.") The petitioners, including Operation

Rescue (OR), are pro-life activist organizations and individuals.

It is undisputed that petitioners all share the goal of stopping

abortion, and that this is a lawful goal, ¢.g., Tr. 4315. It is

likewise undisputed that petitioners, on their own and through

the alleged RICO enterprise, engaged in a variety of

constitutionally protected expressive activities. E.g., Tr. 4291,

4293. The anti-abortion efforts at issue included extensive free

speech activity, such as leafletting, writing, singing, praying.

and other pure speech, pickets. sidewalk counseling, etc. See

OR Pet. App. 17a("All parties acknowledge that the defendants

engaged in a substantial amount of protected speech during the

protest missions and other anti-abortion activities").

Defendants explicitly embraced nonviolence for their efforts;

indeed, OR went so far as to require a pledge of nonviolence for

participants. See, e.g., Tr. 1332, 1357-59, 2468, 2470; PA120,

PA168, PA219. See also Tr. 982, 1263, 1265, 1271, 1815,

1971, 2262-63, 2378-79 (embrace of nonviolence).? The

"NOW sought to paint pro-life activists as extreme and violent by relying

on isolated quotations taken out of context. For example, NOW cited the

"Green Beret" image. suggesting militarism, yet the pertinent document

gave as examples of "Green Berets” not just a “rescuer” willing to go to jail,

but also someone who works "full-time with little or no pay for four months

in the election of a pro-life candidate." PA100. NOW quoted Scheidler as

urging pro-lifers to "take their fight against abortion to the doors of abortion

clinics,” but the letter to the editor in question refers to one-on-one sidewalk

counseling outside abortion businesses, PA130. NOW quoted Scheidler

using the phrase “pro-life mafia," but in context the term referred wryly to

activism, not violence, PA182. See also PA122 (using term "aggressive

tactics" to mean sit-ins and demonstrations).

NOW accused defendants of giving "special, private meanings” to the

word "violence." Yet it was NOW's witnesses who defined "violence" to

(continued...)

nationwide activities at issue spanned some fourteen years. OR

Pet. App. 285a, but the jury found only four acts or threats of

violence, against either persons or property, by unnamed

persons associated with the alleged enterprise. JA 144 (#4(e)).

NOW sought to impose liability upon petitioners for any act,

no matter how isolated, that anyone participating in a pro-life

demonstration supposedly committed.’ E.g., Tr. 2228, 2231

(quoted in OR Pet. at 27-28); OR Reply at 2-3 & n.4. Over

petitioners’ objection, Tr. 4495-98,* the district court did not

require the jury to identify any particular alleged incidents of

wrongdoing.’ Instead, the district court approved a verdict form

that allowed the jury to impose liability for unspecified acts by

“any other person associated with PLAN [Pro-Life Action

Network, the alleged RICO enterprise],” JA 143 (#4) (predicate

acts). See also JA 145 (#7) (RICO pattern may be based on acts

of “persons associated with PLAN"); id. (#9) (proximate cause

may rest on acts of “any person associated with PLAN"). The

jury then found some two dozen unidentified predicate acts to

have been committed by unspecified persons “associated with

PLAN," that at least two of those acts proximately caused injury

to the respondents, and that respondents Summit and DWHO

?(...continued)

include virtually all pro-life activism. See, e.g., Tr. 730 (Susan Hill) (“every

rescue event that has been conducted in this country in the last 15 years by

Operation Rescue” has “felt violent to us"), Tr. 1268 (Maureen Burke)

("every act of civil disobedience that would block access to an abortion

clinic” is violent, even if “entirely passive, peaceful, nonresistant. silent”),

1278 (Burke) (sidewalk counseling. yelling. raising voice all violent).

Petitioners demonstrated in detail in their joint Rule 60(b) motion (which

the district court denied for other reasons) that at least some of the alleged

incidents of misconduct were fabricated or unconnected to petitioners.

“The district court repeatedly admonished that an objection by any

defendant would be deemed made on behalf of all. Tr. 475. 689. 5181.

*Thus, as the district court conceded, OR Pet. App. 254a. there is no way

to know exactly what the jury found to qualify as extortionate predicates.

had suffered monetary damages from their RICO injuries. JA

143-46 (#4, 9, 10).° (No other party was awarded damages.)

As RICO predicates. NOW alleged “extortion” under the

federal Hobbs Act, 18 U.S.C. § 1951, “extortion” under state

law, and “extortion” under the federal Travel Act, 18 U.S.C. §

1952. NOW’s theory of the case was that any physical

obstruction of abortion -- e.g.. by a sit-in -- was extortion

against women and abortion businesses, and thus a predicate act

of racketeering under RICO. See, e.g., Tr. 4327; id. at 5003-

09.’ Petitioners were not alleged to have obtained any tangible

property, Tr. 4327 -- or any intangible property like trademarks

or stocks -- but only to have interfered with the rights of women

and the business of abortion. E.g., Tr. 4987 (respondents’

closing argument) ("Property rights include a woman's nght to

choose what to do when faced with an unplanned pregnancy. —

Our most precious rights are the intangible ones .. ."). The

district court adopted NOW's view of extortion. E.g., OR Pet.

App. 109a-1 1 la, 195a-196a.

Under the district court's instruction, the jury was not

required to find anything more than nonviolent sit-ins to find

defendants liable for “extortion."* Tr. 4944-47. In closing

*The damages consisted exclusively of “extraordinary security costs.” Tr.

2003-04.

"E.g.. Tr. 5003 (closing argument of plaintiffs) ("if the defendants

prevented women from getting any of those services [provided by abortion

businesses], then those interferences are RICO violations"); id. at 5005

("Each and every one of those blockades that shut the clinics down for any

period of time was an illegal act of extortion under RICO").

*While the jury found 25 acts or threats of “extortion.” infra note 9, the

jury found only four acts or threats of violence, JA 144 (#4(e)). Hence, the

jury necessarily found that at least 21 -- and possibly all 25, see infra note

10 — of the acts of “extortion” (sit-ins) were nonviolent.

One question on the jury verdict form asked whether the jury's findings

of predicate extortion under the Hobbs Act or state law were “based solely

' (continued...)

arguments, NOW argued for a jury finding of “no less than 30

blockades [i.e., sit-ins}.” Tr. 5005. arguing that each sit-in was

an act of predicate extortion. id. The jury apparently found 25

sit-ins total.” JA 143-44."°

After the jury found liability and damages under RICO, the

district court imposed treble damages, granted a permanent

injunction."' and entered judgment for NOW. OR Pet. App.

‘(...continued)

on blockades of clinic doors or sit-ins within clinics. without more.” JA

145 (#6). In closing arguments to the jury. NOW argued that the phrase

“without more” meant that the sit-ins “didn't keep anybody out.” Tr. 4987.

In other words. unless the sit-in participants always moved aside to let

people "freely walk in," NOW argued. the jury must answer the question

“no.” Tr. 4987-88. See also TR. 5008 (quoted in OR Reply App. at 27).

Consequently. this question became the meaningless one, “If you found

extortion. was it based solely on a blockade or sit-in where participants

stepped aside for anyone coming or going?” The jury's negative answer to

this question thus did not indicate a finding that sit-ins were violent.

°*The jury was instructed to treat each intentional sit-in at an abortion

business as both actual and attempted extortion. See Tr. 4945-48 (quoted

in Sch. Pet. App. 150a-152a). Accordingly. the jury found the same number

of “acts or threats” as it did “attempts” in each category (25 each for federal

or state “extortion,” 23 each for Travel Act violations). JA 143-44.

Furthermore. the instructions for state and federal extortion were virtually

identical, Tr. 4944-47 (Sch. Pet. App. 150a-152a). with the difference that

the federal version had an interstate commerce element. JA 136-37.

Accordingly, the jury found a virtually identical number of violations in the

state and federal categories. with only slightly fewer in the federal

categories (presumably for lack of the interstate element). JA 143-44.

Thus, a single sit-in would count simultaneously in Verdict Form boxes

4(a), (b), (d). (f), and (g), except that 4(a). (f), and (g) also had interstate

travel or commerce elements. /d.

"NOW also argued for at least five threats of physical violence, Tr. 5013-

16, and seven acts of physical violence. Tr. 5022-23, but the jury found

only four acts or threats total. JA 144 (#4(e)).

authorize private parties to sue for injunctive relief. OR Pet. App. 131a-

: (continued...)

260a-274a & n.10. 277a-282a.

On appeal, petitioners disputed the availability of private

injunctive relief under RICO and contested the district court's

failure to require NOW to plead or prove the required elements

of predicate extortion. Petitioners specifically challenged

NOW's failure to plead or prove the elements of “obtaining

property,” by “wrongful use of actual or threatened force,

violence. or fear,” and with the "consent" of the alleged victims.

The Seventh Circuit affirmed. The court of appeals held that

private parties could sue for injunctive relief under RICO, OR

Pet. App. 7a-17a, and that the Hobbs Act did apply to the

conduct of petitioners or others associated with PLAN, id. at

35a-36a. In particular. the court of appeals held that, to Satisfy

the element of “obtaining property” under the Hobbs Act. a

“loss to, or interference with the rights of, the victim is all that

is required." Jd. at 36a."

SUMMARY OF ARGUMENT

The court of appeals erred both in reading RICO to authorize

private injunctive relief and in reading the extortion section of

the Hobbs Act to apply to the protest activities in this case.

The text and history of RICO's civil remedies provision

clearly demonstrate that private parties are not entitled to sue

for injunctive relief under RICO. The remedies section -- 18

U.S.C. $1964 -- confers unqualified authority on the federal

government to “institute proceedings” under RICO, but gives

private litigants only a right to sue for treble damages. RICO's

"'(...continued)

134a. 26la.

"The court of appeals believed -- erroneously. see OR Pet. at 5, 9 n.15.

23 -- that its affirmance of the Hobbs Act predicates sufficed to sustain the

RICO judgment. OR Pet. App. 36a-37a. Accordingly. the court of appeals

did not reach petitioners’ challenges to predicate extortion under state law

or the Travel Act. /d. at 36a-38a.

treble damages provision is borrowed from indistinguishable

language in the federal Sherman and Clayton antitrust statutes.

language which this Court had already held does nor authorize

private injunctive relief. While Congress adopted a separate

provision in the Clayton Act conferring injunctive remedies on

private litigants. Congress adopted no such provision for RICO.

On the contrary, the statutory history of RICO shows the

repeated failure of efforts to add precisely such a private

injunctive remedy. Hence, the injunction in this case -- which

rests exclusively on RICO -- must be reversed.

The lower court's theory of Hobbs Act extortion is also

flawed. Extortion under the Hobbs Act requires “the obtaining

of property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right.” 18 U.S.C. § 1951(b)(2). Yet the court

below read the Hobbs Act as criminalizing (and thus making

RICO predicates of) mere interference with rights, as by the

protest sit-ins in this case. Such a misreading of Hobbs Act

extortion would make a racketeer out of Martin Luther King,

Jr., temperance crusaders, abolitionists, and environmental or

animal rights protesters, a result which itself suggests the

implausibility of the lower court's ruling. The text of the Hobbs

Act supports no such reading of extortion. As demonstrated by

recourse to the plain meaning of the text, confirmed by the

historical roots of that text, extortion requires the acquisition of

property, not mere damage to or interference with intangible

rights.

Moreover, the claim that a nonviolent protest sit-in qualifies

as extortion -- the theory supporting the judgment below --

ignores the required elements of "consent," “wrongfulness,” and

"force, violence, or fear,” all of which are lacking here.

Accordingly, the judgment must be reversed.

ARGUMENT

This case raises the questions of the availability of private

injunctive relief under civil RICO and the scope of Hobbs Act

extortion, a predicate offense under RICO. The Seventh Circuit

erred both in holding private injunctive relief to be available

under RICO and in holding that Hobbs Act extortion was

properly pled and proved in this case. The judgment of the

Seventh Circuit is wrong and must be reversed.

I. RICO DOES NOT AUTHORIZE PRIVATE

INJUNCTIVE RELIEF.

RICO does not authorize injunctive relief in civil suits

brought by private parties. In RICO, Congress employed

language taken almost word-for-word from antitrust law,

language which this Court had already held not to authorize

private injunctive relief. Congress eschewed other language, in

antitrust law, expressly conferring private injunctive remedies.

The exclusion of private injunctive relief from civil RICO could

scarcely be clearer.

The decision below is aberrant and erroneous. The virtually

unanimous conclusion of the lower courts analyzing the issue --

that RICO does not authorize injunctive relief for private parties

-- is clearly correct."

'SMany lower federal courts have addressed this question. In Religious

Technology Center v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986), cert.

denied, 479 U.S. 1103 (1987), the Ninth Circuit exhaustively analyzed the

text and history of the remedies section of RICO, the pertinent precedents,

and the competing legal arguments. see Wollersheim, 796 F.2d at 1080-88.

The Wollersheim court concluded that " the legislative history and statutory

language suggest overwhelmingly that no private equitable action should be

implied under civil RICO.” /d. at 1088 (footnote omitted). Moreover,

virtually no court since Wollersheim -- other than in this case -- has held

ee Even prior to

(continued...)

A. RICO's Statutory Text

1. Expressio unius

The remedies provision of RICO (18 U.S.C. § 1964), OR Pet.

App. 308a-309a,"* contains three subsections addressing civil

relief. None gives injunctive relief to private parties.

Subsection (a) confers jurisdiction upon the district courts

and authorizes broad equitable remedies. This provision,

however, does not empower private litigants to seek the

injunctive relief authorized.

Subsection (b) authorizes the U.S. Attorney General to

“institute proceedings under this section." This unqualified

authorization to "institute proceedings" plainly authorizes the

federal government to pursue the full range of remedies for

which subsection (a) creates jurisdiction.

Subsection (c) then specifies that "[a]ny person injured in his

business or property . . . may sue therefor . . . and shall recover

threefold the damages he sustains . .. ." Unlike subsection (b),

there is no blanket authorization to “institute proceedings";

instead, using distinct language, the provision specifies a nght

(...continued)

Wollersheim, only one district court so held. See infra note 19. Every other

court to address the issue (except in this case and one other district court

case, see infra note 19) has either rejected private equitable relief under

RICO, expressed serious doubts about such relief. or declined to decide the

question. See OR Pet. at 11-12 & nn.16-19. (For an especially thorough

analysis of the issue. ee Wollersheim; In re Fredeman Litig.. 843 F.2d 821,

828-30 (Sth Cir. 1988); Sedima, S.P.R.L. v. Imrex, 741 F.2d 482. 489 n.20

(2d Cir. 1984). rev'd on other grounds, 473 U.S. 479 (1985); Kaushal v.

State Bank of India, 556 F. Supp. 576, 581-84 (N.D. Ill. 1983), DeMent v.

Abbort Capital Corp., 589 F. Supp. 1378. 1381-83 (N.D. Ill. 1984).)

“The version set forth in OR's Appendix was effective at the time the

present lawsuit was filed. In 1995, Congress amended subsection (c) in a

way irrelevant here. The 1995 amendment does not apply to actions, like

the present suit, commenced prior to December 22. 1995.

to sue and a remedy, namely, treble damages. This Court's

observation in Russello v. United States, 464 U.S. 16 (1983).

therefore applies here:

Where Congress includes particular language in one section

of a statute, but omits it in another section of the same Act,

it is generally presumed that Congress acts intentionally and

urposely in the disparate inclusion or exclusion.

Id. at 23 (internal quotation and editing marks omitted). Had

Congress intended to confer on private parties an unqualified

right to "institute proceedings,” then -- in the words of Russello

-- "it presumably would have done so expressly as it did in the

immediately [preceding] subsection," id.

Subsections (b) and (c) are decidedly not parallel; hence,

contrary to the court below, no "parity of reasoning,” OR Pet.

App. 10a, leads to the conclusion that private parties can claim

the universe of relief authorized under subsection (a). On the

contrary, as in Russello, this Court should

refrain from concluding here that the differing language in

the two subsections has the same meaning in each. We

would not presume to ascribe this difference to a simple

mistake in draftsmanship.

464 U.S. at 23. Indeed, were the contrary true, private parties

would be entitled to sue, not just for treble damages and

injunctions, but also for all the other equitable relief available

to the Attorney General, including dissolution of enterprises.

See § 1964(a).

The statutory text of RICO therefore plainly indicates that

Congress did not authorize private injunctive relief:

A frequently stated principle of statutory construction is that

when legislation expressly provides a particular remedy or

remedies, courts should not expand the coverage of the

statute to subsume other remedies.

Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers.

414 U.S. 453, 458 (1974); accord Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 731-32 (1989). For example, this Court

has held that a statute expressly authorizing private citizens to

sue for injunctions would not be construed as implying a private

right of damages. Middlesex County Sewerage Auth. v. Nat'l

Sea Clammers Ass'n, 453 U.S..1, 14-15 (1981). This rule

makes perfect sense: “In the absence of strong indicia of a

contrary congressional intent, we are compelled to conclude

that Congress provided precisely the remedies it considered

appropriate." Jd. at 15. Accord Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (“it is an

elemental canon of statutory construction that where a statute

expressly provides a particular remedy or remedies, a court

must be chary of reading others into it").

2. The antitrust parallel

The conclusion that private parties cannot obtain injunctive

relief under RICO is confirmed beyond all doubt by reference

to the antitrust model from which Congress borrowed the

remedial provisions of RICO. Congress borrowed, for RICO,

precisely the remedial language this Court had held not to

authorize private injunctive relief, and declined to borrow a

separate provision of antitrust law expressly conferring private

injunctive remedies.

This Court construed the statutory language in question, in

the Sherman antitrust statute, not to authorize private injunctive

relief. See Minnesota v. Northern Sec. Co., 194 U.S. 48, 70-71

(1904) (section 7 of antitrust statute does not authorize private

suits for equitable relief). Accord Paine Lumber Co. v. Neal,

244 U.S. 459, 471 (1917). The parallels to RICO are striking.

Section 7 of the Sherman antitrust statute provided:

" Any person who shall be injured in his business or property

_. . by reason of anything forbidden or declared to be

unlawful by this act may sue therefor . . . and shall recover

threefold the damages by him sustained, and the costs of suit,

including a reasonable attorney's fee."

194 U.S. at 68 (quoting statute) (see RA at 1). The language of

RICO § 1964(c) is virtually word-for-word the same.

Like RICO § 1964, the Anti-Trust Act construed in Northern

Securities contained a subsection conferring on federal courts

"jurisdiction to prevent and restrain violations of this act”

(Section 4), see 194 U.S. at 67. (See RA at 1.) The existence

of a similar grant of equity jurisdiction in RICO § 1964(a) (OR

Pet. App. 308a) only bolsters the statutory parallel.

After Northern Securities, Congress in 1914 enacted the

Clayton Antitrust Act. That statute contains the following

treble damages language:

[A]ny person who shall be injured in his business or property

by reason of anything forbidden in the antitrust laws may sue

therefor . . . and shall recover threefold the damages by him

sustained, and the cost of suit, including a reasonable

attorney's fee. . . .

15 U.S.C. § 15(a). This provision is borrowed straight from

Section 7 of the Sherman Act -- i.e., the provision held not to

authorize private injunctive relief. In addition to the treble

damages provision, Congress added a separate provision

authorizing private parties to sue for injunctions:

Any person . . . shall be entitled to sue for and have

injunctive relief . . . against threatened loss or damage by a

violation of the antitrust laws ....

15 U.S.C. § 26. See California v. American Stores Co., 495

US. 271, 287 (1990) (provision "filled a gap in the Sherman

Act by authorizing equitable relief in private actions"). This

express conferral of private injunctive remedies has no parallel

in RICO.

In sum. when enacting RICO § 1964. Congress borrowed the .

treble damages language of the Sherman and Clayton Acts, but

did not borrow the private injunctive remedy language of the

Clayton Act. The conclusion is inescapable: RICO does not

authorize private injunctive relief.

With RICO, Congress employed the "use of an antitrust

model for the development of remedies" against crime. Agency

Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 151

(1987). The “clearest current in the legislative history of RICO

is the reliance on the [antitrust] model.” /d. (internal quotation

marks and citation omitted). Accord Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479. 489 (1985). It follows that the same

language held nor to authorize injunctive relief in an antitrust

statute does not authorize injunctive relief under RICO:

We may fairly credit the 91st Congress, which enacted

RICO, with knowing the interpretation federal courts had

given the words earlier Congresses had used first in § 7 of

the Sherman Act, and later in the Clayton Act's § 4 [15

U.S.C. § 15]... . It used the’same words, and we can only

assume it intended them to have the same meaning that

courts had already given them.

Holmes v. SIPC, 503 U.S. 258, 268 (1992) (citations omitted)."°

%* * *

‘The Seventh Circuit declared that because this Court "regularly treats the

remedial sections of RICO and the Clayton Act identically." OR Pet. App.

16a, RICO should be read as authorizing private injunctive relief

“regardless of superficial differences in language.” id. To state this

argument is to refute it.

This Court appears already to have acknowledged that

private injunctive relief is not available under RICO. This

Court has consistently described RICO § 1964(c) as authorizing

a "private treble-damages action,” Sedima, 473 U.S. at 486.

Accord id. at 481, 487-88, 490, 493; Agency Holding Corp.,

483 U.S. at 151-52: Klehr v. A.O. Smith Harvestore Products,

Inc., 521 U.S. 179, 183 (1997); Rotella v. Wood, 528 U.S. 549,

$51 (2000); Beck v. Prupis, 529 U.S. 494, 496 & n.1 (2000)

(describing RICO provisions for criminal penalties and civil

suits, and separately noting that RICO “authorizes the

Government to bring civil actions to ‘prevent and restrain’

violations") (emphasis added). The text of RICO confirms this

Court's consistent understanding of civil RICO.

In its Brief in Opposition, NOW conceded that § 1964(c), the

private remedies provision of RICO, does not authorize

injunctive relief. Opp. at 9 ("RICO's only source of permanent

injunctions is § 1964(a)") (emphasis added). NOW therefore

hangs its entire case for injunctive relief on § 1964(a). This

Court has already noted, however, that § 1964(a) is part of

remedial provisions "limited to injunctive actions by the United

States,” Sedima, 473 U.S. at 486-87 (1985). Despite Sedima,

NOW argues that because § 1964(a) does not expressly exclude

private parties, it must be read to include them. Opp. at 9-10.

This is illogical. Section 1964(a) does not, by its terms,

authorize any party to bring a civil RICO action, including the

federal government. The United States can sue for injunctive

relief under RICO only because a separate subsection -- §

1964(b) -- gives the Attorney General authority to "institute

proceedings under this section.” By contrast, the private treble-

damages provision, § 1964(c) -- the only subsection to

authorize private relief -- contains no blanket authorization for

private parties to "institute proceedings.” That subsection only

entitles persons injured in their business or property to "sue

therefor . . . and recover threefold the damages,” § 1964(c).

This subsection does not reference § 1964(a) or even "this

section.” but instead, as this Court has always understood.

provides a distinct private damages remedy.

B. RICO's Legislative History

The legislative history of RICO confirms, indeed compels.

the conclusion already drawn from the text of RICO: private

injunctive relief is not available under RICO.

1. Selection of treble damages remedy

RICO was enacted as Title IX of the Organized Crime

Control Act of 1970. Sedima, 473 U.S. at 486. The Senate,

which passed the legislation first, did not provide for private

party suits under RICO.

The civil remedies in the bill passed by the Senate, S 30,

were limited to injunctive actions by the United States and

became §§ 1964(a), (b), and (d).

473 U.S. at 486-87. The "private treble-damages action” was

added, later, in the House of Representatives. Id. at 487-88.

The Senate then adopted the bill as amended in the House. Id.

at 488. As the Fifth Circuit explained, "Section 1964(c),

providing the treble damage remedy, then becomes a branch

grafted onto the already-completed trunk of the statute."

Fredeman, 843 F.2d at 829 (footnote omitted).

This "grafted-on branch" very specifically authorized “a

private treble-damages action,” Sedima, 473 U.S. at 487, as a

supplement to federal government enforcement of the statute,

and as a remedy for those wronged by organized crime, id. See

also Agency Holding Corp., 483 U.S. at 151 (RICO's civil

enforcement provision was designed "to remedy economic

injury by providing for the recovery of treble damages, costs,

and attorney's fees"); id. (“the mechanism chosen to reach the

objective in . . . RICO is the carrot of treble damages"). The

selection of a treble damages remedy, and only a treble damages

remedy, was plainly a deliberate choice by Congress.

2. Rejection of private injunctive remedy

That Congress deliberately limited private civil relief to

treble damages (and costs and attorney fees) appears even more

clearly from the rejection by Congress of proposals to authorize

private injunctive relief:

(I]n considering civil RICO, Congress was repeatedly

presented with the opportunity expressly to include a

provision permitting private plaintiffs to secure injunctive

relief. On each occasion, Congress rejected the addition of

any such provision.

Wollersheim, 796 F.2d at 1086 (emphasis in original).

RICO predecessor legislation in the Senate and in the House

explicitly allowed for private party injunctive relief. Jd. at

1084. See 115 Cong. Rec. 6,992-96 (1969) (discussing

predecessor Senate bills); H.R. 19215, 91st Cong., 2d Sess.

(1970) (predecessor House bill). In fact, Representative

Steiger, who proposed the addition of the treble damages

provision, Sedima, 473 U.S. at 487, made that proposal in an

amendment which also included a provision for private

injunctive relief. See 116 Cong. Rec. 27,738-39 (1970) (Steiger

Amendment, proposed subsection (c), provided: "Any person

may institute proceeding under subsection (a) [of § 1964]...

[and] relief shall be granted in conformity with the principles

which govern the granting of injunctive relief ..."). The House

Committee on the Judiciary, however, adopted only the private

treble damages remedy, not the private injunctive remedy. See

HLR. Rep. No. 1549, 91st Cong.. 2d Sess. 58 (1970), reprinted

in 1970 U.S.C.C.A.N. 4007, 4034. Rep. Steiger, while

"extremely pleased . . . that the Judiciary Committee has

approved . . . a provision authorizing treble damage actions by

private persons,” 116 Cong. Rec. 35,227 (1970), nevertheless

lamented that the committee version did "not do the whole job.”

id. In particular. Rep. Steiger bemoaned the fact that “the

Judiciary Committee version . . . fails to provide . . . equitable

relief in suits brought by private citizens.” /d. at 35,228.

On the floor of the House, Rep. Steiger again “offered an

amendment that would have allowed private injunctive actions”

under RICO, Sedima, 473 U.S. at 487. See 116 Cong. Rec.

35.228, 35.346 (1970). “The proposal was greeted with some

hostility . . . and Steiger withdrew it without a vote being

taken.” Sedima, 473 U.S. at 487-88. See 116 Cong. Rec.

35,346-47 (1970). As this Court has explained. the reason for

this hostility, for the withdrawal of the proposal, and for the

reference of the proposal instead to a committee, was precisely

because the proposed amendment "included yet another civil

remedy,” Agency Holding Corp., 483 U.S. at 154, namely,

private injunctive relief. See 116 Cong. Rec. 35,346 (1970)

(statement of Rep. Poff) (Steiger amendment “does offer an

additional civil remedy" and "prudence would dictate that the

Judiciary Committee very carefully explore the potential

consequences that this new remedy might have").'®

“Congress failed to enact legislation, proposed the very next term after

the enactment of RICO. which was designed "to broaden even further the

remedies available under RICO. In particular. it would have . . . permitted

private actions for injunctive relief." Agency Holding Corp.. 483 US. at

155. See also Sedima, 741 F.2d at 489 n.20; 117 Cong. Rec. 46.386 (1971)

(statement of Sen. McClellan) (Title IV of "Victims of Crime Act of 1972"

would "authorize private injunctive relief from racketeering activity”): id.

at 46,393 (text of bill proposing to amend RICO to add private injunctive

remedy); Victims of Crime: Hearings on S. 16, S. 33, S. 750, S. 1946, S.

2087, S. 2426, S. 2748. S. 2856, S. 2994, and S. 2995 Before the Subcomm.

on Criminal Laws and Procedures of the Senate Comm. on the Judiciary,

92d Cong., Ist Sess. 3 (1970-1971) (text of proposed bill providing for

private injunctive relief under RICO); id. at 51 (same); id. at 158 (statement

; (continued...)

In sum. Congress repeatedly declined to authorize private

injunctive relief under RICO. See Russello, 464 U.S. at 23-24

(citing “evolution of [RICO's) statutory provisions” as aid to

statutory construction, and adding. "[wJhere Congress includes

{certain} language in an earlier version of the bill but deletes it

prior to enactment, it may be presumed that the [omitted text]

was not intended”).'’

C. The Counterarguments

In light of the foregoing, it is not surprising that virtually

every court to address the issue has concluded that RICO does

not authorize private parties to sue for injunctive relief. See

supra note 13. Indeed. lower courts have frequently declared

themselves compelled to reach this conclusion.

'*(._.continued)

of Richard Velde, Associate Administrator. Law Enforcement Assistance

Administration) (proposed legislation “would expand the available civil

remedies. Section 1964 [of RICO] would be amended to permit any person

to institute a civil proceeding to prevent or restrain violations . . . . Now

only the United States can institute injunctive proceedings"): 118 Cong.

Rec. 29.368 (1972) (text of "Civil Remedies for Victims of Racketeering

Activity and Theft Act of 1972" proposing inter alia to amend RICO to add

private injunctive relief); id. at 29.370 (statement of Sen. McClellan) (bill

“authorizes private injunctive relief from racketeering activity").

In 1973, Congress again considered, and failed to enact. a bill to amend

RICO by adding private injunctive relief. See 119 Cong. Rec. 10.317-19

(1973) ("Civil Remedies for Victims of Racketeering Activity and Theft

Act of 1973").

"The Seventh Circuit disparaged recourse to the legislative history of

RICO. OR Pet. App. 14a-15a. But this Court has repeatedly invoked

legislative history as a basis for limiting RICO. Eg.. Holmes v. SIPC. 503

US. 258, 267-68 (1992); Reves v. Ernst & Young, 507 U.S. 170, 179-83

(1993). In fact, as illustrated in the text supra. analysis of legislative history

is characteristic of this Court's RICO jurisprudence.

"See, ¢.g., Wollersheim. 796 F.2d at 1088 (“Taken together, the

(continued...)

Only two district courts (aside from the courts below here)

have held to the contrary.'” One case preceded the extensive

analysis in Wollersheim and has not been followed by any other

court.” The other, while distancing itself from the Seventh

Circuit's reasoning in this case. erroneously relied upon a

presumed power of courts, apart from RICO, to grant equitable

relief.*' The district court ~ and court of appeals in the present

case, meanwhile, offered no convincing analysis. Furthermore,

"8. continued)

legislative history and statutory language suggest overwhelmingly that no

private equitable action should be implied under civil RICO") (footnote

omitted); First Nat'l Bank and Trust Co. v. Hollingsworth. 701 F. Supp.

701, 703 (W.D. Ark. 1988) ("it would be difficult. if not impossible, to

draw a different conclusion"); P.R.F.. inc. v. Philips Credit Corp.. No. CIV

92-2266CCC, 1992 WL 385170 at *3 (D.P.R. Dec. 21, 1992) ("any other

conclusion would not be reasonable").

"See Chambers Dev. Co. v. Browning-Ferris Indus., 590 F. Supp. 1528,

1540-41 (W.D. Pa. 1984); Motorola Credit Corp. v. Uzan, No. 02 Civ. 666,

2002 U.S. Dist. LEXIS 9118 (S.D.N.Y. May 21, 2002).

Indeed, even later district court decisions in the same federal circuit (the

Third) as the Chambers court. supra note 19, reached the opposite

conclusion from Chambers. ruling that RICO does not provide for

injunctive relief to private parties. See Vietnam Veterans of America, Inc.

v. Guerdon Indus., Inc.. 644 F. Supp. 951, 960-61 (D. Del. 1986); Curley

v. Cumberland Farms Dairy. Inc.. 728 F. Supp. 1123, 1137-38 (D.N_J.

1989).

*! Motorola Credit, 2002 U.S. Dist. LEXIS 9118 at *6-*10. In effect. the

Motorola court placed the burden on Congress explicitly to deny private

injunctive relief to private parties, rather than following the rule that where

Congress specifies certain remedies. they are normally deemed exclusive.

See supra § (A 1).

®The district court provided virtually no analysis of the issue. See OR

Pet. App. 131a-134a. 260a-262a. That court said that there was “substantial

authority” for its position among the lower courts and declared itself

“persuaded by the rationale in those opinions.” /d. at 134a. But none of the

cases the district court cited held that private parties can sue for injunctive

relief under RICO. Indeed. several of the decisions the district court relied

upon did not even involve RICO.

none of the arguments offered for reading into RICO a private

injunctive remedy has merit.

1. The word "and"

It has been argued that the word “and” in RICO § 1964(c)

provides a justification for private injunctive relief. The

contention is that, because subsection (c) provides that any

person injured in his business or property may sue “and shall

recover” treble damages, instead of providing that any such

person may sue "fo recover” treble damages, that therefore the

relief under subsection (c) is not limited to treble damages.

The Seventh Circuit embraced essentially this argument in

support of its holding. The court read the word “and” as

severing the first clause of subsection (Cc) from the remainder of

that subsection. In effect, the Seventh Circu:: ead subsection

of a violation of section 1962 of this chapter may sue

therefor in any appropriate United States district court

and{. In addition to any other available remedies, such

person] shall recover threefold the damages he sustains

and the cost of the suit, including a reasonable attorney's

fee.

See OR Pet. App. 10a. This “reconstruction” of RICO §

1964(c) is simply another version of the argument that the word

“and.” rather than linking the private cause of action with the

treble damages remedy, instead justifies construing subsection

RICO suits for both treble damages and all equitable relief

identified in subsection (a).

This argument is deeply flawed.

First, this reading is “bizarre and wholly unconvincing as a

matter of plain English and the normal use of language."** If

Congress had intended to take such a significant step as

authorizing private RICO suits for injunctive relief -- and the

text and legislative history, discussed above, decidedly refute

any such intent -- it would be truly “bizarre” for Congress to do

so by such an obscure and indirect means when Congress could

simply have said so in plain language.

Second. the identical term “and” appears, in an

indistinguishable context, in the Sherman antitrust statute, see

supra § I(A)(2). which this Court held does not authorize

private suits for injunctive relief, see Paine Lumber Co. v. Neal,

244 U.S. 459, 471 (1917); Minnesota v. Northern Sec. Co., 194 .

U.S. 48. 67-68, 70-71 (1904). Moreover, the private treble

damages provision of the Clayton antitrust act, 15 U.S.C. § 15,

uses the term "and" in identical fashion. To read this word as

implying that private litigants may also sue for injunctive relief

would render the Clayton Act's separate, express authorization

of private injunctive relief, 15 U.S.C. § 26, 2 meaningless

redundancy.”

Third, the term “and,” if anything, operates to limit the

available relief to that explicitly set forth in RICO § 1964(c).

Had that subsection merely authorized anyone injured in his

business or property "to sue therefor,” period, then there might

be some ambiguity as to what relief would be available. But by

spelling out that an injured person may sue “and recover

threefold the damages he sustains,” the statute leaves no doubt

as to both the right and the remedy.

In short, the word “and” simply cannot bear the weight this

argument places upon it.

3Kaushal, 556 F. Supp. at 582. Accord Sedima, 741 F.2d at 489 n.20.

See Wollersheim. 796 F.2d at 1087 & n.11; Kaushal. 556 F. Supp. at

583 & n.22; Sedima, 741 F.2d at 489 n.20; DeMent, 589 F. Supp. at 1382.

2. Subsection (a) as creating remedies

The argument has also been made that subsection 1964(a),

which confers jurisdiction and authorizes certain remedies,

should be read as creating remedies under RICO for both

private parties and for the government. Under this reading,

subsection (b) merely gives the government an additional nght

to equitable relief pendente lite, and subsection (c) merely gives

private parties an additional right to treble damages, costs, and

attorney fees. The Seventh Circuit appears to have embraced

this argument. OR Pet. App. 9a- 10a.

This argument is defective.

First, this argument ignores the explicitly jurisdictional

nature of subsection (a) ("The district courts . . . shall have

jur liction to..."). See Touche Ross & Co. v. Redington, 442

US. 560, 576-77 (1979) (rejecting the argument that a

jurisdictional provision in a statute can give rise to cause of

action: "[t]he source of plaintiffs nghts must be found . . . in the

substantive provisions . . ., not in the jurisdictional provision’).

While subsection (a) authorizes equitable relief, it does not --

as the Seventh Circuit conceded, OR Pet. App. 12a -- specify

which plaintiffs can seek the remedies it provides. For the

answer to that question, recourse must be had to subsection (b)

("The Attorney General may institute proceedings under this

section.”). Thus, the subsection (a) argument depends entirely

upon the premise that subsection (c) grants private plaintiffs --

and not just the Attorney General -- plenary authority to

"institute proceedings under this section,” an argument refuted

above. Supra §§ I(A)(1), (C)(1).

Second, this argument again ignores the parallels to antitrust

law. The very statute which this Court held did not authorize

private injunctive relief, supra § 1(A)(2), also contained a broad

jurisdictional provision with language largely identical to

subsection 1964(a). See Northern Securities, 194 U.S. at 67

(quoting text of § 4).

The Seventh Circuit perceived (OR Pet. App. 11a) support

for its reasoning in this Court's decision in Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 90 (1990). But reliance

on Steel Co. is puzzling. That case merely rejected the claim

that a provision giving courts "jurisdiction in actions brought

under [a subsection]" made every element of the pertinent

substantive subsection “jurisdictional.” /d. Petitioners made no

such argument regarding RICO.

3. “Liberal construction"

Another argument the Seventh Circuit offered to justify

reading into RICO a right of private injunctive relief is the

legislative directive to construe RICO liberally to effectuate its

purposes. OR Pet. App. 12a-13a. This argument is a make-

weight.” As this Court has explained, "RICO's ‘liberal

construction’ clause . . . is not an invitation to apply RICO to

new purposes that Congress never intended." Reves v. Ernst &

Young, 507 U.S. 170, 183 (1993). The meaning of RICO "must

be gleaned from the statute through the normal means of

interpretation.” Id. at 184.”°

>The Seventh Circuit's invocation of the broad "underlying purposes” of

RICO, OR Pet. App. 13a. is likewise no warrant for construing RICO

contrary to its text and legislative history. “Our task here is not to

determine what would further Congress's goal . . . but to determine what the

words of the statute must fairly be understood to mean.” Holmes Group

Inc. v. Vornado Air Circulation Sys., Inc.,122 S. Ct. 1889, 1895 (2002).

®As the Fifth Circuit observed:

The “liberal construction” directive. however. neither compels nor

authorizes us to disregard convincing evidence from the legislative history

that Congress believed it had not approved private injunctive remedies

and balked at doing so.

Fredeman, 843 F.2d at 830.

sks

By in effect amending RICO to authorize private civil suits

for injunctive relief, the Seventh Circuit has abolished the

federal government's exclusive prerogative to seek such relief.

Not only is this an affront to a unique federal executive power,

it is an open invitation to abuse. Under the decision below,

private parties are no longer limited to damages for the harm

they suffered: they now can seek equitable relief wholly

independent of, and potentially in conflict with, the decisions of

the Attorney General regarding pursuit of such relief.

Furthermore, private parties do not have the political

accountability, or the duty to exercise prosecutorial discretion,

that apply to the federal government. Under the Seventh

Circuit's faulty interpretation, the RICO injunctive weapon can

now be misused -- as in the present case -- as a means of

waging political or commercial warfare against one's

adversaries.

This Court should reverse the Seventh Circuit and hold that

RICO does not authorize private injunctive relief.”’

Il. THE HOBBS ACT PREDICATES WERE

DEFECTIVE.

NOW's case, the district court's rulings and jury charge, and

the Seventh Circuit's affirmance of the judgment, each

proceeded on a fundamentally flawed view of predicate

extortion.

RICO requires proof of other, "predicate" offenses. The

conduct at issue here does not constitute predicate extortion

under the Hobbs Act. Consequently, NOW's civil RICO

"Hence, judgment must be entered against those respondents which

obtained only injunctive relief. namely, NOW, those members represented

by NOW, and all of the plaintiff class members.

judgment resting upon. inter alia, Hobbs Act predicates, must

be reversed.

Each subsection of RICO requires proof of a "pattern of

racketeering activity.” 18 U.S.C. § 1962(b), (c). A "pattern" of

racketeering activity "requires at least two acts of racketeering

activity,” id. § 1961(5). The necessary acts of racketeering

must in turn come within RICO's definition of "racketeering

activity,” id. § 1961(1), which lists the specific offenses that

qualify as predicate acts for RICO. Thus, a RICO plaintiff must

allege and prove at least two "predicate acts” that fall within the

RICO definition of "racketeering activity" and form a "pattern."

Not every crime qualifies as a predicate offense supporting

a RICO claim. For example, the list of predicate crimes, 18

U.S.C. § 1961(1), does not include trespass, disorderly conduct,

obstruction of public passages, vandalism, harassment, resisting

arrest, contempt of court, assault, battery, or even rioting, id. In

other words, RICO excludes from its coverage precisely those

offenses most likely to arise in the context of political or social

protest. This is no coincidence: Congress adopted an

enumerated list of predicate offenses in response to concern that

RICO, if drafted more generally. could be used as a weapon

against protesters who engaged in unlawful demonstration

activity. Note, Protesters, Extortion, and Coercion: Preventing

RICO From Chilling First Amendment Freedoms, 75 Notre

Dame L. Rev. 691, 697-99 (1999) (documenting evolution of

RICO in response to concern over potential application to

protesters).

Faced with a statute that does not lend itself to use against

protesters, NOW nevertheless sought to shoehorn this case into

RICO on the theory that coercive protesting is a form of

“extortion.” NOW pursued, and went to trial on, the theory that

petitioners committed predicate acts of "extortion" under

federal law “lobbs Act, 18 U.S.C. § 1951(a), (b)(2), and Travel

Act. 18 U.S.C. § 1952) and the law of the state where the act

was committed. NOW's theory essentially was that any

unlawful act which interfered with access to, or the provision

of, abortion, made someone "give up" a right and therefore

constituted "extortion" under federal and state law. E.g., Tr.

550, 564-67. 4327-28, 4335-37, 4874-75, 4961, 4983-87. 4989,

5003-11, 5016, 5037, 5118. Petitioners objected* to NOW's

construction of the extortion laws at many points in the case:

dismissal motions, summary judgment, Rule 50 motions at the

close of NOW's case and at the close of all evidence, the jury

instructions, and post-trial motions. The district court at each

point rejected petitioners’ objections and embraced NOW's

theory of extortion. See OR Pet. App. 108a-114a (finding

Hobbs Act violations sufficiently pled);*° id. at 121a-129a

(Travel Act and state extortion sufficiently pled); id. at 194a-

199a (evidence of interference with abortion suffices to defeat

summary judgment on Hobbs Act); Tr. 2462, 4880, 4903 (Rule

50); Tr. 4944-48 (jury charge); OR Pet. App. 275a-276a (post-

trial motions). See also, e.g., Tr. 4332, 4339-40, 4884-85. The

jury retummed a verdict for respondents, finding that over two

dozen acts of “extortion” had been committed. OR Pet. App.

31la-312a. See supra note 9.

NOW sought to prove that petitioners and others associated

with the Pro-Life Action Network did something illegal which

interfered with the practice of abortion. The Seventh Circuit

equated this with extortion and racketeering. Under this

approach, virtually any unlawful activity designed to change

anyone's conduct could be extortion. This erroneous view of

extortion would sweep within its definition any protest activity

that crosses the line from legal to illegal activity. Sit-ins at

*8See supra note 4.

“The district court stated: "If Plaintiffs have alleged that they have

sustained economic losses resulting from Defendants’ actions, that is

sufficient to withstand this motion to dismiss." /d. at 110a (footnote

omitted).

segregated lunch counters, chaining oneself to a redwood tree

scheduled to be cut down. blocking the entrance to an

auditorium where a hatemonger is speaking, interference with

access to a pornography business -- all of these could be

“extortionate” under the decision below. NOW essentially

admitted as much. See Tr. 4963 (closing argument for

respondents) (RICO enterprise "could be an animal rights group

that bars entry to a restaurant that serves veal"). The district

court likewise recognized that RICO might have been used to

wipe out "civil nghts actions, demonstrations in the ‘60s or anti-

war demonstrations in the '70s." Tr. 4339-40. Accord OR Pet.

App. 158a ("The instant case is paradigmatic of RICO's

seemingly unlimited applicability").

In short, any unlawful protest activity would, under the

rationale of the Seventh Circuit, constitute felony extortion.

More than one such illegal act could trigger a civil RICO suit,

with extortion serving as the predicate.

This is not mere speculation. Civil RICO is already being

invoked against protesters of various political stripes. See, e.g..

Oversight Hearing Addressing the Civil Application of the

Racketeering Influenced and Corrupt Organization Act (RICO)

to Nonviolent Advocacy Groups, Before the Subcomm. on

Crime of the House Comm. on the Judiciary, 105th Cong., 2d

Sess. (1998) (www.house.gov/judiciary/35055.htm) (testimony

of Jeffrey S. Kerr, General Counsel, People for the Ethical

Treatment of Animals) (civil RICO suit filed against anti-

vivisection protesters); Stephens Group, Inc. v. Voices for

Animals, No. 00:5518 (JEI) (D.N.J. First Amended and

Supplemental Complaint filed Apr. 17, 2001) (laboratory and

its shareholder adding civil RICO claims against animal rights

groups); Jacques Ferber, Inc. v. Bateman, No. 99-CV-2277

(E.D. Pa. filed May 3, 1999) (civil RICO suit filed against anti-

fur protesters); "Furnier files RICO Suit to Halt Anti-Fur

Protesters’ Excesses,” 15 Civil RICO Litigation Rptr. No. 9, p.

3 (May 1999) (same): "Furriers file a RICO suit over animal

rights projects.” The Star-Ledger. Aug. 6, 1999 (federal civil

RICO suit filed in Newark. New Jersey, against animal rights

groups).*°

Social protest has a long and revered history in this nation.

From the burning or hanging of effigies in colonial times, to the

temperance activists’ disruption of taverns, to the civil rights

and anti-war sit-ins of the 1960's and 1970's, demonstrations --

even illegal ones -- have been both an outlet for dissent and an

instrument for social and legal change. In totalitarian regimes.

demonstrators are crushed by tanks. In this nation, by contrast,

protesters may be arrested, fined. or jailed for offenses they

commit, but they are not treated like hardcore criminals --

unless the Seventh Circuit's misreading of the Hobbs Act

stands.

Happily, a proper reading of RICO and federal (and state)

extortion laws requires rejection of the Seventh Circuit's view

of predicate extortion.

A. Distortion of Hobbs Act Extortion

The Hobbs Act, 18 U.S.C. § 1951. prohibits interference with

commerce by “extortion,” § 1951(a), and defines extortion as

"the obtaining of property from another, with his consent,

induced by wrongful use of actual or threatened force, violence,

or fear, or under color of official right." § 1951(b)(2). Aclaim

of Hobbs Act extortion fails if any of these statutory elements

“The fact that the cited cases were filed in district courts within the Third

Circuit is no coincidence. In Northeast Women's Center Inc. v.

McMonagle. 868 F.2d 1342 (3d Cir.), cert. denied. 493 U.S. 901 (1989),

the Third Circuit became the first federal appeals court to endorse the use

of RICO against protesters under a theory of Hobbs Act extortion. The

Seventh Circuit's adoption of a similarly distorted view of federal extortion

in the present case will. unless corrected by this Court. doubtless produce

its own clones.

is lacking. In this case, NOW failed to allege or prove “the

obtaining of property.” "with his consent,” and "wrongful use of

actual or threatened force, violence or fear."

1. Missing elements of Hobbs Act extortion

a. No "obtaining"

Violation of the Hobbs Act requires "the obtaining of

property from another ...." 18 U.S.C. § 1951(b)(2) (emphasis

added). The Seventh Circuit failed to require NOW to prove

any such “obtaining” in this case. According to the Seventh

Circuit, despite the text of § 1951, an “extortionist” can “violate

the Hobbs Act without either seeking or receiving money or

anything else,” OR Pet. App. 36a. "A loss to, or interference

with the rights of, the victim is all that is required." Jd.*' Thus,

any protest activity that crosses into tortious or illegal behavior

(a trespass, an obstruction, an instance of physical contact)

would subject the actor to federal criminal felony liability as an

“extortionist" under the Hobbs Act and a "racketeer" (if two or

more acts are involved) under RICO. A recipe more deadly for

social protest could scarcely be imagined.

The Seventh Circuit's decision also creates considerable

mischief for government actors. The Hobbs Act proscribes the

extortionate “obtaining of property . . . under color of official

right." § 1951(b)(2). Under the decision below, this means

"[causing a] loss to, or interfer[ing] with the rights of. the

victim," OR Pet. App. 36a, under color of official right. Thus,

any police misconduct (false arrest, excessive force, etc.) or

other act of government officials (e.g., withholding a municipal

permit for a pornography business or gun store) that interferes

with someone's rights, would become federal criminal extortion

3'The court below claimed support in “a long line of precedent,” id.. but

the “precedent” is merely lower court dicta. See generally Note, supra p.

25, at 718-19 & n.124.

and racketeering.

The decision below creates mischief for federal robbery law

as well. The "robbery" section of the Hobbs Act also uses the

term “obtaining”: “robbery” is the "taking or obtaining of

personal property from the person or in the presence of another,

against his will, by means of actual or threatened force, or

violence, or fear of injury. . ..” 18 U.S.C. § 1951(b)(1). Under

the Seventh Circuit's distorted view of “obtaining,” a protester

who pushes someone to the ground, causing that person's pants

to tear or glasses to break, commits "robbery" ("obtaining” the

pants or glasses by actual force). The bumping of opposing

demonstrators would become the stuff of felony prosecutions

and civil RICO suits.”

The Seventh Circuit's rewriting of the Hobbs Act does nor

square with the law and is simply wrong. As this Court has

clearly held, the "obtaining" of property requires the acquisition

of, and not mere injury or interference with, property. For

example, in United States v. Enmons, 410 U.S. 396 (1973), the

defendants wrongfully caused property losses and interfered

with rights, id. at 398 (recounting acts of violence); id. at 399

("wrongful violence” is redundant), yet there was no extortion:

the defendants did not wrongfully obtain property, id. at 399-

400. See id. at 400 (distinguishing the obtaining of "personal

payoffs"); id. at 406 n.16 (distinguishing "obtaining a financial

benefit for himself" and a "payoff": the "entire character [of the

demonstration] changed . . . when it was used as a pressure

device to exact the payment of money") (emphasis added). See

The decision below would also wreak havoc in the interpretation of

other federal statutes that have the obtaining of property as an element.

E.g., 10 U.S.C. § 921 (larceny and wrongful appropriation under Uniform

Code of Military Justice): 1 1 U.S.C. §727(a)(4)(C) (bankruptcy discharge);

15 U.S.C. § 77q(a)(2) (fraudulent interstate transactions); 15 U.S.C. §

1703(a)(2)(B) (fraud in land transactions); 18 U.S.C. § 1341 (mail fraud);

18 U.S.C. § 1343 (wire fraud).

also Evans v. United States, 504 U.S. 255. 259-60 (1992)

(common law. from which Hobbs Act borrowed. required that

public official “took . . . money" under color of his office in

order to constitute extortion).

The result in Enmons would have to be different under the

rationale of the decision below. Indeed. the Seventh Circuit's

distorted view of Hobbs Act extortion is radically at odds with

both the majority and the dissent in Enmons.

In Enmons, the question was whether the Hobbs Act applied

to labor violence in supportof higher wages and other employee

benefits. This Court divided 5-4 over the question, with the

majority holding that "the use of viole<e to achieve legitimate

union objectives" was not the “wrongful” obtaining of property

for purposes of Hobbs Act extortion. 410 U.S. at 400. See

infra §Il(A)(1)(e). But not a single Justice suggested that the

violent destruction of property that had occurred in that case

could itself qualify as the extortionate “obtaining” of property

under the Hobbs Act. Yet the Seventh Circuit endorsed

precisely such a theory.

The decision below would plainly nullify the holding in

Enmons. Instead of prosecuting violent union protesters for the

extortionate obtaining of better wages and benefits (an

“obtaining” that, under Enmons, is not “wrongful"), prosecutors

-- under the Seventh Circuit's faulty rationale -- could simply

charge the protesters with extortionate “obtaining” of the

prpperty or rights damaged or interfered with, i.e., by causing

a “loss to, or interfering with the rights of" (OR Pet. App. 36a)

others. The “obtaining of property” element would be satisfied

by the damage to transformers (as in Enmons) or to other

company property, or by interference with the liberty of

management or employees, for example, to cross the strike line.

The legitimacy or wrongfulness of the ultimate aim of

“obtaining wages" would be irrelevant, because the unlawful

means of “obtaining, by damage of or interference with,

property,” according to the court below. would satisfy the

Hobbs Act.

The rationale of the decision below would thus render

meaningless the entire debate in Enmons. Whether obtaining

higher wages is “wrongful” or not under the Hobbs Act is

wholly beside the point if wrongful “obtaining property” (as

opposed to wrongful “causing a loss" or “interfering with

rights") is mot even a necessary element of Hobbs Act

extortion.**

The Enmons majority was insistent that the Hobbs Act would

not proscribe misconduct on a picket line, even a physical

assault. 410 U.S. at 404-05. The dissent was even more

emphatic, dismissing as “nonsense” the notion that a "fistfight

on a picket line” could violate the Hobbs Act. Jd. at 418 n.17

(Douglas, J., dissenting). Yet in the present case it was

precisely demonstration misconduct -- the nonviolent sit-ins

themselves, plus several scattered™ incidents of alleged

violence® -- that formed the very core of both respondents’ case

and the jury's verdict. as well as the basis for the Seventh

Circuit's affirmance under the Hobbs Act. Supra pp. 4-5 & nn.

7-10; OR Pet. App. la-2a, 23a, 35a-36a.

“The potential for businesses to use RICO actions based on an expansive

concept of Hobbs Act extortion against union activists has not gone

unnoticed by judges and commentators. See OR Resp. at 4 n.2.

*A comparison with NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982), is instructive. In Claiborne, there were at least ten violent incidents

in one county of Mississippi over a seven-year period . /d. at 888, 893. 898,

904-06, 920. In the present case. the jury found only four acts or threats of

violence, OR Pet. at 4 n.5, in the context of nationwide demonstrations over

a fourteen-year period. id. at 6-7. This Court described the violent acts in

Claiborne as “isolated.” 458 U.S. at 924, and “relatively few.” id. at 933.

A fortiori. the same is true here.

“Petitioners vigorously deny any charge of violence. Supra p. 2 & n.2.

Indeed, OR demanded all “rescue” demonstration participants to sign a

pledge of nonviolence. /d.

i. Plain meaning of "obtaining"

Interpretation must begin with the text of the statute. United

States v. Turkette. 452 U.S. 576. 580 (1981). Words are to be

given their ordinary meaning. Russello v. United States, 464

U.S. 16, 21 (1983). “Obtain” means “to come into the

possession or enjoyment of (something) . . . to acquire [or] get.”

Oxford English Dictionary, vol. 10, at 669-70 (2d ed. 1989).

Accord Black's Law Dictionary 972 (5th ed. 1979) (“obtain”

means “[t]o get hold of . . . : to get possession of; to procure; to

acquire in any way"). “Obtaining ... from” is not synonymous

with “part with,” which means “to let go, give up [or]

surrender.” Oxford English Dictionary, vol. 11, at 262

(emphasis added).

The plain meaning of ‘ obtaining . . . from” thus includes

more than merely making someone “lose” or “give up”

something. Evans, 504 U.S. at 264-65, 268 (equating “obtain”

with "receive”). See generally Note, supra p. 25, at 704-12

(tracing extortion from the common law through the Hobbs Act

and concluding that extortionate “obtaining” requires not only

that a victim be deprived of property. but also that someone get

the property as a result of the deprivation).

ii. Meaning of “obtaining” under New York

extortion law

Under New York law -- the source of the language of the

Hobbs Act -- “obtaining” means “gaining,” not just “denying.”

Enmons, 410 U.S. at 406 n.16 (1973).

The Hobbs Act took its relevant language from the extortion

law of New York. /d.: Evans, 504 U.S. at 261 n.9, 264-65.

Under New York law, it is well-settled that the crime of

extortion requires an unlawful taking. Enmons. 410 U.S. at 406

n.16 (under New York statute, “extortion requires an intent to

obtain that which in justice and equity the party is not entitled

to receive"; accused must be “actuated by the purpose of

obtaining a financial benefit" such as “receiv[ing] a payoff")

(emphasis added: quoting and citing New York cases). See

People v. Whaley, 6 Cow. 661, 663 (N.Y. 1827) ("[e}xtortion

_. . Signifies the taking of money” with corrupt intent) (cited in

commentary to Field Code of 1865, § 613 (extortion)); People

v. Ryan, 232 N.Y. 234, 236. 133 N.E. 572, 573 (1921)

(blackmail prosecution) (an intent “to extort” requires an

accompanying intent to “gain money or property"; mere threat

to injure a business is insufficient). See also People v.

Squillante, 18 Misc. 2d 561, 564, 185 N.Y.S.2d 357, 361 (Sup.

Ct. 1959) ("‘f{o]btaining of property from another’ imports not

only that he give up something but that the obtainer receive

something”); United States v. Nedley, 255 F.2d 350, 355-58 (3d

Cir. 1958).*°

New York law was codified in the Field Code of 1865, which

defined extortion as "[t]he obtaining of property from another,

with his consent, induced by a wrongful use of force or fear, or

under color of official right.” Field Code § 613 (1865)

(emphasis added). The commentary explained:

Four of the crimes affecting property require to be somewhat

carefully distinguished; robbery, larceny, extortion, and

embezzlement .... All four include the criminal acquisition

of the property of another. . . . In extortion, there is again a

taking . . . . Thus extortion partakes in an inferior degree of

the nature of robbery, and embezzlement shares that of

larceny.

*In Nedley, the Third Circuit squarely held, in accord with New York

law. that “obtaining” was synonymous with “taking” and that “robbery” in

the Hobbs Act did not extend to "interference by force and violence with

_. . lawful dominion and control,” since no “taking” or no “intent to steal”

could be shown. 255 F.2d at 354-57. The same term “obtaining” is used

in the extortion subsection.

Field Code. Chapter IV. § 584 com. (emphasis added). The

Field Code. in turn. was one of the sources for the Hobbs Act.

Evans, 504 U.S. at 261 n.9.

iii. Obtaining" at common law: extortion vs.

coercion

Furthermore, the elimination of the “obtaining” element of

“extortion” is completely inconsistent with the distinction at

common law -- incorporated into the Hobbs Act -- between

“extortion” and “coercion.” “Coercion” is not a predicate act

under RICO. 18 U.S.C. § 1961(1)(A). See. e.g., United States

v. Delano, 55 F.3d 720, 726 (2d Cir. 1995). (NOW concedes

that "mere coercion” is insufficient to satisfy the elements of

extortion. Opp. at 16.) To read the Hobbs Act to include

“coercion” would expand RICO beyond its statutory limits.

“Coercion” is the criminal compulsion of another, by means

of threats, to do or not do something. See 31A Am. Jur. 2d

Extortion, Blackmail, and Threats §§ 49-50 (1989) (coercion as

independent offense). Coercion is a creature of statute, much

broader than extortion. /d. Extortion, by contrast. is limited to

the obtaining of property by means of threat. Jd. § 40. The

“obtaining” element in the Hobbs Act incorporates this

distinction.

"[A] statutory term is generally presumed to have its

common-law meaning.” Taylor v. United States, 495 U.S. 575,

592 (1990). Indeed,

“where Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word in the body of

learning from which it was taken and the meaning its use will

convey to the judicial mind unless otherwise instructed. In

such case, absence of contrary direction may be taken as

satisfaction with widely accepted definitions. not as a

departure from them."

Evans, 504 U.S. at 259-60 (quoting Morissette v. United States,

342 U.S. 246, 263 (1952)). Evans explicitly applied this rule to

the terms of the Hobbs Act: "our construction of the statute is

informed by the common-law tradition from which the term of

art was drawn and understood.” 504 U.S. at 268. This

"common-law tradition” demonstrates the flaw in the Seventh

Circuit's failure to respect the distinction between extortion and

coercion.

(a). Extortion at common law

At common law. extortion unquestionably required an

acquisition of property. See 4 W. Blackstone,”’ Commentaries

*141 (extortion as "an abuse of public justice, which consists in

any officer's unlawfully taking. by colour of his office, from any

man, any money or thing of value, that is not due to him, or

more than is due, or before it is due") (emphasis added); 3 E.

Coke. First Institute 584 (J. Thomas ed. 1826) ("[e]xtortion, in

its proper sense, is a great misprision, by wresting or unlawfully

taking by any officer. by colour of his office, any money or

valuable thing . . . either that is not due, or more than is due, or

before it be due”) (emphasis added).

[E]xtortion in a large sense signifies any oppression under

colour of right; but . . . in a strict sense, it signifies the taking

of money by any officer, by colour of his office, either where

none at all is due, or not so much is due, or where it is not yet

due.

7 “The definition of common law extortion that writers on the Hobbs Act

most frequently cite is Blackstone's... ." Lindgren, The Elusive

Distinction Between Bribery and Extortion: from the Common Law to the

Hobbs Act, 35 UCLA L. Rev. 815. 862 (1988).

W. Hawkins,” A Treatise of the Pleas of the Crown 316 (6th

ed. 1788) (emphasis added). The Hobbs Act. by employing the

term “obtaining” from common law, New York law. and the

Field Code, incorporated this same requirement of an

acquisition of property.

(b). Statutory distinction between

extortion and coercion

The Model Penal Code maintained the distinction between

the (originally statutory) crime of coercion and the (originally

common-law) crime of extortion. Coercion appears in Section

212.5, which “prohibits specified categories of threats made

with the purpose of unlawfully restricting another's freedom of

action to his detriment." Model Penal Code § 212.5 cmt. 2 at

264 (1980) (emphasis added). Extortion, by contrast, appears

in Section 223.4, which “deals with situations where threat

rather than force . . . is the method employed to deprive the

victim of his property." Id. § 223.4 cmt. 1 at 201-02 (emphasis

added). As in the Hobbs Act, the Model Penal Code defines

extortion to require that one "obtains property of another," id.

§ 223.4, and to “obtain” property means “to bring about a

transfer . . . of a legal interest in the property. whether to the

obtainer or another,” id. § 223.0(5) (definitions). The obtaining

of property thus distinguishes extortion from coercion, as

coercion involves the restriction of another's freedom of action

by threat. Jd. § 212.5 cmt. 2 at 266; id. § 223.4 cmt. | at 203.

Many states follow the Model Penal Code and distinguish

extortion and coercion by categorizing them as separate

* "Hawkins's definition of extortion was cited. paraphrased. or followed

by the Crown Circuit Companion, Mathew Bacon in A New Abridgement

of the Law, William Russell in A Treatise on Crimes and Misdemeanors.

and Francis Wharton in his influential American treatise. A Treatise on the

Criminal Law." Lindgren, supra note 37, at 865 (footnotes omitted).

statutory offenses. Blakey & Roddy. Reflections on Reves v.

Ernst & Young: Its Meaning and Impact on Substantive,

Accessory, Aiding Abetting and Conspiracy Liability (Under

RICO), 33 Am. Crim. L. Rev. 1345, 1660 n.25 (1996)

(collecting statutes). Other states recognize only the crime of

extortion. not coercion. /d. at 1660 n.26. Still other states

combine the two offenses under one heading. /d. at 1660 n.27.

The Seventh Circuit failed to recognize coercion asa

separate offense. Yet "[t]he distinction is not trivial: . . . itis of

the essence of extortion -- not only in New York law but, more

importantly, in the law generally -- that one compel another to

surrender property.” United States v. Private Sanitation Indus.

Ass'n, 793 F. Supp. 1114, 1132 (E.D.N.Y. 1992) (emphasis in

original) (citing United States v. Nardello, 393 U.S. 286, 296

(1969)).

Unlawful acts of protest, like any unlawful acts, may in some

sense “deprive” others of something. But "to deprive” is

simply not the same as "to obtain from.” Petitioners here were

not business competitors of the abortion facilities or their

employees. They stood to gain nothing by the reduction in the

abortionists' business. Even assuming, arguendo, that abortion

businesses lost "property" because of petitioners, but see infra

§ II(A)(1)(b), neither the petitioners nor anyone associated with

them obtained that “property.”

The Third Circuit holding in the McMonagle case. supra note 30. that

no economic benefit or motivation is necessary in pleading and proving a

Hobbs Act violation. is clearly wrong. None of the decisions it cited

supports its holding. United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979).

cert. denied, 444 U.S. 1043 (1980), merely held that the extortionist need

not obtain the property himself -- a political party may be the recipient of

the extorted contributions. United States v. Starks, 515 F.2d 112 (3d Cir.

1975), held that a religious purpose does not preclude a finding of extortion

where money is taken. Finally. United States v. Anderson, 716 F.2d 446

(continued...)

A defendant may "obtain" property for purposes of the Hobbs

Act either by personally receiving a direct payment from the

victim or by obtaining property for another person. United

States v. Green, 350 U.S. 415 (1956). In the case at bar,

however, neither the district court nor the Seventh Circuit

required proof of either alternative.

The antiwar protester who gets in a shoving match with a

counter-demonstrator may be guilty of battery. but he is not

guilty of extortion: the protester obtains no property. Nor do

other incidents of misconduct at protests. or even deliberate

civil disobedience, rise to the level of Hobbs Act extortion

unless the perpetrator “obtains” or tries to “obtain” property.

As this Court has observed, the “entire character" of a protest

“change[s] from legality to criminality” when the protest is used

"to exact the payment of money as a condition of its cessation.”

United States v. Enmons, 410 U.S. 396. .406 n.16 (1973)

(editing marks, and citation omitted).

b. No "property"

Hobbs Act extortion requires "the obtaining of property,” 18

U.S.C. § 1951(b)(2) (emphasis added). Petitioners did not

“obtain” any tangible property of respondents. Tr. 4327. Nor is

there any claim that defendants "obtained" intangible property

like shares of stock or copyrights. Reliance on intangible rights

-- such as a "right to abortion” or a "right to perform abortion

*(__.continued)

(7th Cir. 1983), dealt not with the “obtaining from" element of extortion,

but with the effect of threats on interstate commerce. The record included

evidence that defendant had extorted $300 from the victim. /d. at 447.

Curiously, the Third Circuit failed to cite its own controlling precedent

recognizing that extortion under the Hobbs Act is a “larceny-type offense.”

United States v. Sweeney, 262 F.2d 272, 275 (3d Cir. 1959) (citing United

States v. Nedley, 255 F.2d 350 (3d Cir. 1958)). McMonagle. in short. is

unpersuasive.

services,” Tr. 567 (NOW's opening statement of what was

"extorted") -- must fail. Such intangible liberty interests do not

constitute "property" for purposes of the Hobbs Act.”

Any unlawful conduct, whether a tort. a breach of contract,

or even a parking violation, will interfere to some degree with

another person's liberty. But the Hobbs Act forbids the

wrongful obtaining of property (extortion), not the wrongful

denial of liberty (coercion). To treat "rights" as "property"

under the Hobbs Act would be to remove all limits whatsoever

on the kind of injury necessary for federal criminal extortion.

This Court has repeatedly distinguished between "property."

on the one hand, and “intangible rights," on the other, when

construing the "obtaining property” element of federal criminal

statutes. E.g., McNally v. United States, 483 U.S. 350, 356,

358, 360 (1987); Cleveland v. United States, 531 U.S. 12, 23-24

(2000).

McNally is illustrative. The statute at issue there prohibited

use of the mails for “obtaining money or property” by fraud.

483 U.S. at 352 n.1. The government charged the defendant

with defrauding Kentucky citizens "of their right to have the

Commonwealth's business and its affairs conducted honestly,

impartially, free from corruption, bias, dishonesty, deceit,

official misconduct, and fraud,” id. at 354 n.4 (trial court's

instruction to jury). This Court recognized an obvious

“The jury was instructed that "property rights” included

anything of value, including a woman's right to seek medical services

from a clinic, the right of the doctors, nurses or other clinic staff to

perform their jobs, and the right of the clinics to provide medical

services free from wrongful threats, violence, coercion and fear.

JA 136. See also JA 143 (verdict form lumping together extortion of

patients, prospective patients, and abortion staff). Hence, the judgment

cannot be sustained unless each of these intangible rights qualifies as

“property” under the Hobbs Act.

difference between "property nights" and "the intangible right of

the citizenry to good government.” /d. at 356. Indeed, this

distinction was so clear that the Court considered that the only

"arguable" way of saving the prosecution would be to construe

the mail fraud statute so as to dispense entirely with "the

money-or-property requirement” for certain kinds of fraudulent

schemes. Id. at 358. This Court refused to remove this

statutory limitation: “Rather than construe the statute in a

manner that leaves its outer boundaries ambiguous and involves

the Federal Government in setting standards of disclosure and

good government for local and state officials. we read [the mail

fraud statute] as limited in scope to the protection of property

rights." Jd. at 360. Bt

Acceptance of intangible "rights" as property would likewise

leave the boundaries of the Hobbs Act ambiguous and would

put the federal government (and civil RICO plaintiffs) in the

business of "setting standards" in protest movements. Did the

civil rights activists of the 1960's extort owners of diners of

“property” when they obstructed the owners’ "right to serve only

the customers they chose"? Did these activists extort white bus

passengers of their "property" by making these passengers give

up their "right to sit in the front of the bus"? Certainly not.

"Liberty" does not equal "property" under the Hobbs Act.

NOW's claim requires stretching the Hobbs Act even beyond

protection of intangible property. Cf Carpenter v. United

States, 484 U.S. 19, 25-27 (1987) (wrongful obtaining of

intangible property). “Intangible property" (such as shares in a

corporation or trademark rights) does not equate with

"intangible rights." A liberty interest such as the “nght to

provide services” or the "right to make business decisions" is,

in the words of Carpenter, “an interest too ethereal in itself to

fall within the protection” of the "property" concept, id. at 25.

The Seventh Circuit's essentially limitless theory of property

rights, like the prosecution theories in Cleveland, must be

rejected “not simply because they stray from traditional

concepts of property,” 531 U.S. at 24, but also because this

approach "invites us to approve a sweeping expansion of

federal criminal jurisdiction in the absence of a clear statement

by Congress,” id. This Court warned in Cleveland that a novel

expansion of the statutory term "property" "would subject to

federal . . . prosecution a wide range of conduct traditionally

regulated by state and local authorities." /d. The same concern

applies here. Infra § II(A)(2)(b).

Invoking the rule of lenity, this Court noted in Cleveland that

any ambiguity about the term "property" must be resolved in

favor of a less expansive meaning. 531 U.S. at 25. Highly

apropos of the present case, this Court found the rule of lenity

“especially appropriate” in construing a federal crime which "is

a predicate offense under RICO," id. Accord infra § I(A)(2)(c).

c. No "consent"

The Hobbs Act requires proof of the "consent" of the victim.

NOW has shown no such extraction of consent.

Protest activity inherently seeks changed conduct on the part

of others. But the Hobbs Act does not proscribe "the securing

of altered behavior by another with his consent,” but rather "the

obtaining of property from another, with his consent," 18

U.S.C. § 1951(b)(2). Thus. the "consent" extracted must be

linked to the obtaining of property. The mere pressuring of

others to "consent" to stop obtaining or providing abortions is

irrelevant, as petitioners did not “obtain” that conduct (even if

such "conduct" were "property”").

Moreover, damage to or interference with property is not the

Same as extortion because the consent of the victim is

irrelevant. The purpose of the vandal or tortfeasor is not to

obtain permission for anything.

Any unlawful activity exerts pressure on those who wish to

avoid the consequences of that activity. Any property damage

. Hobbs Act noted, the words "robbery" and “extortion

“forces” the owner to replace, repair. or endure the impairment

of property. But the Hobbs Act does not outlaw the universe of

wrongful conduct: the deliberate seeking of the consensual

surrendering, to the extortionist or his designee. of property that

the extortionist obtains, remains a critical element of this

statutory offense.

d. No "force, violence, or fear"

Conduct typical of civil disobedience -- sit-ins, pickets,

vehement rhetoric, pouring blood or paint on property or things,

damaging weapons components -- does not constitute "force,

violence, or fear" under the Hobbs Act. The judgment below,

howe er, rests largely upon precisely such nonviolent protest

activity. Supra pp. 4-5 & nn.7-10. Hence, the verdict of

predicate extortion must fall. See Town of West Hartford v.

Operation Rescue, 915 F.2d 92, 102 (2d Cir. 1990) ("it would

be difficult to construe the [anti-abortion rescuers'] activities as

described in the complaint, consisting of resistance to police

efforts to clear protestors from the [abortion business] . . ., as

the ‘wrongful use of actual or threatened force, violence or fear’

within the meaning of section 1951(b)"). As the sponsor of the

" "have

been construed a thousand times by the courts. Everybody

knows what they mean." 91 Cong. Rec. 11,912 (1945) (quoted

in United States v. Culbert, 435 U.S. 371, 378 (1978)).

Plaintiffs’ artificial and unbounded construction of the Hobbs

Act, like the prosecutor's attempted expansive reading of that

same Act in McCormick v. United States, 500 U.S. 257, 272

(1991), is "an unrealistic assessment of what Congress could-

have meant by making it a crime to obtain property from

another, with his consent... ."

For forty years after the passage of the Hobbs Act, not a

single reported decision suggested that the pursuit of social,

moral, or political goals through pressure tactics -- including

lawbreaking in the form of trespass. vandalism, obstruction,

mass picketing. and incidental scuffling -- constitutes federal

criminal extortion. One novel and aberrant appellate decision.

see supra note 30. cannot have singlehandedly revolutionized

American jurisprudence.

Civil disobedience and social or political pressure tactics are

part of the American experience. Characterizing ideological

movements as extortionate simply because of the use of these

traditional methods would move this country toward totalitarian

oppression of dissent. The Seventh Circuit's theory would

make an extortionist out of everyone from Gandhi, to Martin

Luther King. Jr., to the temperance activists of the Nineteenth

Century, to the leaders of the Boston Tea Party, and would

convert the Hobbs Act into a weapon for combatting

anti-nuclear protesters and animal rights activists. But as the

Ninth Circuit declared in United States v. Caldes, 457 F.2d 74

(9th Cir. 1972) (cited with approval in Enmons, 410 U.S. at

409), "it appears to us that acts of vandalism of the type

committed by these [defendants] would be more properly and

Suitably prosecuted in the state courts and it is doubtful if

Congress intended by Section 1951 to elevate this type of

conduct to the level of the federal court." 457 F.2d at 79 (citing

United States v. Bass, 404 U.S. 336 (1971)).

e. No "wrongful" purpose

Hobbs Act extortion requires the "wrongful" use of actual or

threatened force, violence, or fear. § 1951(b)(2). The

"wrongfulness” in question must be the wrongfulness of the

goal or purpose of the conduct. not the wrongfulness of the

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

In Enmons, striking employees seeking higher wages and

benefits committed serious acts of property damage: “firing

high-powered rifles at three Company transformers, draining the

oil from a Company transformer, and blowing up a transformer

substation owned by the Company.” /d. at 398. This Court

affirmed the dismissal of a Hobbs Act indictment. /d. at 398.

412.

In Enmons. the government argued that the "wrongfulness”

element was satisfied by the property destruction. This Court

disagreed:

The term “wrongful,” which on the face of the statute

modifies the use of each of the enumerated means of

obtaining property -- actual or threatened force, violence, or

fear -- would be superfluous if it only served to describe the

means used. For it would be redundant to speak of

“wrongful violence” or “wrongful force” since, as the

Government acknowledges, any violence or force to obtain

property is “wrongful.”

Id. at 399-400 (footnotes omitted). Rather, the wrongfulness

must attach to the objective of the conduct:

[Tjhe literal language of the statute will not bear the

Government's semantic argument that the Hobbs Act reaches

the use of violence to achieve legitimate union objectives,

such as higher wages in return for genuine services which the

employer seeks. In that type of case, there has been no

“wrongful” taking of the employer's property .. . .

Id. at 400 (emphasis added). "In short, when the objectives of

the [protest activities] change[] from legitimate . . . ends to

personal payoffs, then the actions bec[o]me extortionate." /d.

at 406 n.16 (emphasis added).

No language in the Hobbs Act refers in any way to unions or

labor. Hence, the principle of Enmons cannot arbitrarily be

confined to the labor context. In the present case. petitioners’

objective was to stop abortion. As respondents concede, Tr.

4315, this is a legitimate objective, even if some of petitioners’

means were unlawful. Bray v. Alexandria Women's Health

Clinic, 506 U.S. 263. 270. 274 (1993). “Whether one agrees or

disagrees with the goal of preventing abortion. that goal . . . is

proper and reasonable ...." Jd. at 274. Hence, under Enmons.

the “wrongfulness" element was lacking.

2. Rules of statutory construction

The Seventh Circuit's theory of Hobbs Act extortion

profoundly contradicts several well-established norms of

Statutory construction.

a. Avoiding constitutional difficulties

Legislation ought not, if a reasonable alternative is present,

be interpreted in a manner that raises constitutional difficulties.

Rust v. Sullivan, 500 U.S. 173. 190-91 (1991). This rule of

construction mandates fidelity to all of the elements of Hobbs

Act extortion -- including the elements missing from petitioners’

conduct. To apply the Hobbs Act to cover social protest

activities would raise serious First Amendment and due process

difficulties.

First. the right to free speech shelters a broad range of

expressive activity, including that which many people might

find offensive, coercive, and disruptive. E.g., Organization for

a Better Austin v. Keefe, 402 U.S. 415 (1971) (pressuring real

estate broker to cease certain practices); NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982) (boycotts enforced through

public embarrassment); Cantwell v. Connecticut, 310 U.S. 296

(1940) (attacking religious beliefs). Even when protest activity

inflicts economic injury, it does not thereby become unlawful.

Claiborne Hardware. Thornhill v. Alabama, 310 U.S. 88

(1940). Yet the Seventh Circuit's theory of extortion threatens

“coercive” expression. Moreover, the threat of extortion

prosecutions and RICO suits for any coercive conduct (even

conduct of someone merely “associated” with the “enterprise” )

exerts a profound "chilling effect" on legitimate free speech

activities.

Second, the post hoc categorization of traditional protest

methods as “extortionate” poses due process issues of unfair

surprise. Bouie v. City of Columbia, 378 U.S. 347 (1964)

(unconstitutional to subject "sit-in" to unforeseeable expansion

of criminal law). It would be difficult to overstate the novelty --

and bizarre nature -- of the Seventh Circuit's view that

“interference with rights” equals the extortionate "obtaining of

property.” No state or federal criminal extortion charges were

brought for any of the dozens of supposedly “extortionate” sit-

ins or other acts on which the RICO claim was based. See. e.g..

Tr. 1777-78 (Lt. Pyrdum); RICO Case Statement [Amended]

(Oct. 31, 1994) at 5-6, Ex. A, B (listing criminal

charges/convictions for alleged predicate acts, none of which

are for "extortion”). Indeed, it would be "an unprecedented feat

of interpretative necromancy,” Holmes Group, 122. S. Ct. at

1895, for a prosecutor to charge that a sit-in protest was felony

“extortion,” yet that was precisely the Seventh Circuit's theory.

As this Court stated in an analogous context, "[iJt is unlikely

that if Congress had indeed wrought such a major expansion of

criminal jurisdiction in enacting the Hobbs Act, its action

would have so long passed unobserved." Enmons, 410 U.S. at

410. To expand the Hobbs Act in this startling fashion,

therefore, and to make that post hoc expansion the basis for

liability under RICO, raises very serious due process concerns.

This Court should therefore reject the Seventh Circuit's

perversely expansive reading of the Hobbs Act.

b. Federalism

This Court should be loathe to interpret federal statutes in

ways that “upset the usual constitutional balance of federal and

state powers.” New York v. United States, 505 U.S. 144, 170

(1992) (internal quotation marks and citation omitted). See

generally Gregory v. Ashcroft, 501 U.S. 452 (1991). "(W]e will

not be quick to assume that Congress has meant to effect a

significant change in the sensitive relation between federal and

state criminal jurisdiction.” United States v. Bass. 404 U.S.

336, 349 (1971). This rule militates against turning the Hobbs

Act into a device for federalizing such traditional state offenses

as trespass, vandalism, and obstruction of public passage. See

United States v. Staszcuk, 517 F.2d 53, 55 (7th Cir.) (en banc)

(per Stevens, J.), cert. denied, 423 U.S. 837 (1975).

This Court expressed this very caution in refusing to apply

the Hobbs Act to unlawful conduct incident to a labor strike:

[I]t would require statutory language much more explicit than

that before us here to lead to the conclusion that Congress

intended to put the Federal Government in the business of

policing the orderly conduct of strikes. Neither the language

of the Hobbs Act nor its legislative history can justify the

conclusion that Congress intended to work such an

extraordinary change in federal labor law or such an

unprecedented incursion into the criminal jurisdiction of the

States. |

Enmons, 410 U.S. at 411 (citations omitted).

Congress has, of course, adopted a scheme of national labor

regulations, yet Enmons held that there was no clear statement

of intent to police the limits of labor demonstrations through the

Hobbs Act. Here, there is no national scheme of social protest

regulation; a fortiori, application of the Hobbs Act to police

such protests violates the “clear statement” principle.*'

“Congress knows how to make a clear statement of intent that a statute

apply to protest activity. E.g., 18 U.S.C. § 248 (FACE). The present case

was not brought under FACE. however. and the Hobbs Act contains no

such clear statement.

c. Rule of lenity

Any “uncertainty concerning the ambit of criminal statutes

should be resolved in favor of lenity." United States v.

Kozminski, 487 U.S. 931, 952 (1988) (and cases cited). The

Seventh Circuit's distortion of the Hobbs Act stands this rule on

its head, as the Seventh Circuit's interpretation requires both

creating ambiguity by rejecting the clear meaning of statutory

terms, and then resolving that contrived ambiguity in favor of

an extremely broad interpretation.

"The Court has often stated that when there are two rational

readings of a criminal statute, one harsher than the other, we are

to choose the harsher only when Congress has spoken in clear

and definite language.” McNally, 483 U.S. at 359-60. This

rule serves “to promote fair notice to those subject to the

criminal laws, to minimize the risk of selective or arbitrary

enforcement, and to maintain the proper balance between

Congress, prosecutors, and courts,” Kozminski, 487 U.S. at 952.

As a criminal law, the Hobbs Act is subject to this rule of

strict construction. Enmons, 410 U.S. at 411; McCormick, 500

U.S. at 272-73. This Court must therefore reject the Seventh

Circuit's bizarre expansion of federal criminal “extortion.” A

protest sit-in is not extortion under the Hobbs Act.

B. Impact of Hobbs Act Error on Disposition of Case

Respondents have never claimed to be able to prove

predicate extortion under a proper understanding of the Hobbs

Act. Hence, this Court should reverse the Seventh Circuit and

remand with instruction that the court of appeals direct the entry

of judgment for petitioners on those claims.

Moreover, because state extortion offenses must satisfy a

federal minimum essentially equivalent to the Hobbs Act in

order to qualify as RICO predicates, those state predicates are

also irremediably defective. See United State v. Nardello, 393

U.S. 286, 290, 293. 295 (1969); Tavior v. United States, 495

U.S. 575, 590-91, 599-602 (1990). See OR Pet. at 23-24.

NOW 's Travel Act predicates, meanwhile, fall with the Hobbs

and state extortion predicates. OR Pet. at 4 n.6, 26 n.27.

Accordingly, this Court should reverse and remand with

instruction to direct the entry of judgment for petitioners on all

counts. See also supra p. 26 (petitioners attacked NOW's

extortion theory with various dispositive motions).

CONCLUSION

This Court should reverse the judgment of the Seventh

Circuit and remand with instructions to direct the entry of

judgment for petitioners on all claims.

Respectfully submitted this 12” of July, 2002,

Walter M. Weber Jay Alan Sekulow

Larry L. Crain Counsel of Record

David A. Cortman Colby M. May

Robert W. Ash Stuart J. Roth

American Center for Law James M. Henderson, Sr.

and Justice Vincent P. McCarthy

1650 Diagonal Road, 5" FI. American Center for Law

Alexandria, VA 22314 and Justice

(703) 740-1450 205 Third Street, S.E.

Washington, DC 20003

Thomas P. Monaghan (202) 546-8890

Charles E. Rice

Center for Law and Justice

International

6375 New Hope Road

New Hope, KY 40052

(502) 549-5454

Attorneys for Petitioner Operation Rescue

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.