# Petitioners Brief — Operation Rescue v. National Organization for Women, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0539%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2002 - **Citation:** 537 U.S. 808 ## Text Nos. O1-1118. 01-1119 =~ CLERK IN THE — enema Supreme Court of the Gnited States JOSEPH SCHEIDLER, ET AL, Petitioners, Ve NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL, Respondents. OPERATION RESCUE, Petitioner, Ve 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 i 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. ii 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. in 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 iv 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 V B. Impact of Hobbs Act Error on Disposition of Case . 49 CONCLUSION vi 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) ................. 1) 49 49 22 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 IX 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 x 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 a 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 2 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...) 3 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. 4 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...) 5 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...) 6 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. 7 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. 8 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...) 9 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. 10 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 1] 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: 12 " 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 13 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. 14 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). 15 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 16 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 17 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...) 18 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...) 19 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. 20 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 (c) as if it were written as follows: (c) Any person injured in his business or property by reason 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 (c) as a blanket authorization for private parties to institute civil RICO suits for both treble damages and all equitable relief identified in subsection (a). This argument is deeply flawed. 21 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. 22 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 23 (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. 24 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. 25 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 26 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). 27 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. 28 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. 29 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. 30 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). 31 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