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

FILED

rp Supreme Court, U.S.

18 and O1-1

Nos. O1-

JUL 12 2002

IN THE

Supreme Court of the Hnited Statesere og

JOSEPH SCHEIDLER, ANDREW SCHOLBERG, TIMOTHY

MURPHY, AND THE PRO-ACTION LIFE LEAGUE, INC..,

Petitioners,

Vv.

NATIONAL ORGANIZATION FOR WOMEN . INC. , ETAL.,

Respondents.

OPERATION RESCUE,

Petitioner,

v.

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL,

Respondents.

On Writs of Certiori To The United States

Court of Appeals For The Seventh Circuit

BRIEF OF AMICUS CURIAE CENTER FOR INDIVIDUAL

RIGHTS IN SUPPORT OF THE PETITIONERS

MICHAEL E. ROSMAN

Counsel of Record

CENTER FOR INDIVIDUAL RIGHTS

1233 20th St., NW, Suite 300

Washington, DC 20036

(202) 833-8400

Silop«.<

TABLE OF CONTENTS

See GPE 6 ccc ccs ceceercees

TABLE OF AUTHORITIES ..............4-.

INTEREST OF AMICUS CURIAE ...........

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

> an oe a wen a Soe ane eC ee Se. ee eS Se BS ee Se Se

The Seventh Circuit’s Holding Di-

verts Federal Criminal Law From Its

Proper Purpose And Infringes On

A. The Original Role of Federal

| i 6 ek 8 ky

Criminal Law ...........

D. The Effect of the Lower

Ge

The Seventh Circuit’s Holding Ef-

fects A Change In The Federal-State

Balance Without A Clear Statement

DG 6 bee peas eae eee

i

A. Statutes Should Be Read To

Avoid Altering The Federal-

State Balamce ......ccccee 14

B. Statutes Should Be Read to

Avoid Constitutional Prob-

Pe ee eee 16

od Federal Criminal Statutes

MOTE TT Cer 18

Ill. The Decision Of The Lower Court

Interferes With The Policy Decisions

Made In The Freedom Of Access To

Clinic Entrances Act ........c00- 19

IV. The Interpretation Of The Court

Below Creates Unnecessary First

Amendment Problems ........... 22

CONNLEAMIEUNS ccs ceeceeete ee en eee 25

eee

TABLE OF AUTHORITIES

Cases:

Brooks v. United States, 267 U.S. 432 (1925) ...... 6

Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988) ..... 22

Dowling v. United States, 473 U.S. 207 (1984) .... 18

Hill v. Colorado, 530 U.S. 703 (2000) ......... 12

Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997) .... 21

Jones v. United States, 529 U.S. 848 (2000) 10, 16-18, 22

LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261

jj} Miche ees eeeeeccce« 24

Metropolitan R.R. Co. v. Moore, 121 U.S. 558

DUCE Ce segeeGeceseecccecs 19

Miller v. California, 413 U.S. 15 (1973) ........ 12

NAACP v. Claiborne Hardware Co., 458 U.S. 886

DE BOS SRee cece occeceresececs 12

National Organization of Women v. Scheidler, 267

F.3d 687 (7th Cir. 2001) ............. 22

New York v. United States, 50S U.S. 144 (1992) .... 4

iv

Patterson v. McLean Credit Union, 491 U.S. 164

tt 66606 66008 600 u66 bb ones ee 20

Perez v. United States, 402 U.S. 146 (1971) .... 8,22

Planned Parenthood of the Columbia/Willamette,

Inc. v. American Coalition of Life Activists,

2002 U.S. App. LEXIS 9314 (9th Cir. May

e | | PPT TT TTT Tre 23

Planned Parenthood of the Columbia/Willamette,

Inc. v. American Coalition of Life Activists,

244 F.3d 1006 (9th Cir. 2001) .......... 23

PruneYard Shopping Center v. Robins, 447 U.S. 74

Pc ccceeecteanesedbewbeones 12

Rosenberger v. Rectors and Visitors of the Univer-

sity of Virginia, 515 U.S. 819 (1995) ....... l

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531

es Ck ob coder eee dice eer 16, 17

The Barnes Foundation v. Tne Township of Lower

Merion, 242 F.3d 151 (3d Cir. 2001) ...... 24

United States ex rel. Attorney General v. Delaware

& Hudson Co., 213 U.S. 366 (1909) ...... 16

United States v. Bass, 404 U.S. 336 (1971) .... 14, 18

United States v. Bird, 124 F.3d 667 (Sth Cir. 1997) . 21

United States v. Culbert, 435 U.S. 371 (1978) ...... 7

Vv

United States v. Gluzman, 953 F. Supp. 84

(S.D.N.Y. 1997), aff'd, 154 F.3d 49 (2d

SS PPPPrTrrrrererreereiererire 9

United States v. Harris, 106 U.S. 629 (1882) ...... 5

United States v. Lanier, 520 U.S. 259 (1997) ..... 13

United States v. Local 560 of International Broth-

erhood of Teamsters, 780 F.2d 267 (3rd

LD baténdaeeceeeedeocenses 11

United States v. Local 807 of International Brother-

hood of Teamsters, 315 U.S. 521 (1942) .... 15

United States v. Lopez, 514 U.S. 549 (1995) . 14, 16, 18

United States v. Morrison, 529 U.S. 598 (2000) 1, 17, 18

United States v. Price, 383 U.S. 787 (1966) ...... 13

United States v. Santoni, 585 F.2d 667 (4th Cir.

i «eee co o¢ebbebeee sees sen ox 1l

United States v. Scott, 788 F. Supp. 1555 (D. Kan.

Dt -60be0ebebbs obs eoeeoeter 23, 24

White v. Lee, 227 F.3d 1214 (9th Cir. 2000)...... 24

Constitutional Provisions, Statutes, Rules:

BD We BSUS ccc wc cccccccscccccccess 13

BP Wes OE co cect eseecceseeceeces 13

BD Gee DUD ccc ccccececsesess 1, 20-23, 25

BP We BOD cocccccccesccccececes 20

SP Ge OUD ccc cccscoceccecones 23

BP Gee DEED ccc cccosccccccesecese 20

1S U.S.C. § SERGMIMA) .. ccc ccc cccsens 20

BD DAG, GSM ccc cccccccccccccces 23

SD Gus DUE co cccccccceccvceess 23

SP ee DOU ce ccccccscccesoeces 21

SP Oe POTD co ccccccccccccecess 9,17

18 U.S.C. § 1951 ... 1, 2, 7, 10-15, 18, 19, 21, 22, 25

18 U.S.C. § 2261(aX(1) .. 2. ee eee eee 9

18 U.S.C. §§ 1961 ef seg. ............ 13, 20, 21

OCG. GOD coke cicccccccsccsces 16

ED hos 0 ns dda cewaeuaroouss 13

| | ne 23, 24

91 Cong. Rec. 11899-900 (1945) ........... 15, 19

Anti-Drug Abuse Act of 1986 ................ 8

Vii

Anti-Drug Abuse Act of 1988 .............--. s

Civil Rights Act of 1871 ............02--05- 5

Comprehensive Drug Abuse Prevention and Con-

trol Act (Controlled Substances Act) of

Ee wae ee veasteoeceseencecccess 8

Consumer Credit Protection Act ............+.-. 8

Crime Control Act of 1984 .........5255408- 8

Crimes Act Of 1790 2.0... ccc cc cr ccvvcces 3

BP AME cc ccc ccccseressccsessecesess 6

Federal Anti-Racketeering Act of 1934 ....... 7, 15

Fugitive Felon Act... ......-0 ee eee eeeeeee 6

i \* SePerrrrrrrrrrrreere ee 6

BENE ccc ecdocccessesesecesecesecs 6

N.Y. Penal Law § 530 (1909)... ......-.-.-45- 19

N.Y. Penal Law § 851 (1909) ............4-. 19

National Stolen Property Act .........--++555 6

PP ecto dcvesseceseveccnvccsenes 8

PPPOE EEE ob be ce ebeeeeécebies 5

i ai l

Re ee of

> GUND, GUS. Bw cc ccc cccevecs 1, 2, 22, 25

ee ES CE 6's 6 ce eeecedcie bee ed 7

a ee ene 3

eee On w'é Ow bic bbe be eee ad's 3

eee ED cen ccoetoascoeséess 3

Violent Crime Control and Law Enforcement Act

PPaee ce bekeeseoedescecasoceicr 8

Other Authorities:

Bradley, Racketeering and the Federalization of

Crime, 22 Am. Crim. L. Rev. 213 (1984) .... 7

Chamberlain, Federal Criminal Statutes, 20 A.B.A.

Fe SEE GE. poses cevecéebecvecscs 7

ix

G. Robert Blakey & Kevin P. Roddy, Reflections

on Reves v. Ernst & Young: /ts Meaning

and Impact on Substantive, Accessory,

Aiding Abetting and Conspiracy Liability

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

SM occcbesebeeeeee ee eeeesess 19

John S. Baker, Jr., Nationalizing Criminal Law:

Does Organized Crime Make It Necessary or

Proper?, 16 Rutgers L.J. 495 (1985) ....... 5

Kathleen F. Brickey, Criminal Mischief: The

Federalization of Criminal Law, 46 Hastings

RS eR Erna 3,7

Lawrence M. Friedman, Crime and Punishment in

American History (1994)... 2.6... 6 eee 5

NE eke pees se eas 7

Nat Hentoff, HUD’s Attack On The First

| ee GOR ee Sintra ian 24

Note, Legislation, 21 Va. L. Rev. 568 (1935) ...... 7

Stephan E. Oecestreicher, Jr., Scheidler Meets Morri-

son (At the Entrance to a Health Clinic), 35

Creighton L. Rev. 693 (2002) .......... 15

The Federalist No. 17 (Alexander Hamilton) (New York

1788) (Legal Classics ed. 1983) .......... 4

x

The Federalist No. 51 (James Madison) (New York

1788) (Legal Classics ed. 1983) .......... 4

William Brand, Speech Spells Trouble, Oakland

Tribune, July 21, 1994 atA-9 .......... 24

INTEREST OF AMICUS CURIAE

The Center for Individual Rights ("CIR") is a public

interest law firm. It has participated in the litigation of

numerous cases concerning issues related to federalism and

the First Amendment, including United States v. Morrison,

529 U.S. 598 (2000) and Rosenberger v. Rectors and Visitors

of the University of Virginia, 515 U.S. 819 (1995).

CIR believes that the court below gave insufficient

weight to federalism and free speech concerns in interpreting

the Hobbs Act. This brief provides some historical perspec-

tive on the expansion of federal criminal law and examines

the decision of the Seventh Circuit in light of those important

federalism concerns, and in light of free speech concerns.’

SUMMARY OF ARGUMENT

The Seventh Circuit concluded that the petitioners

here "obtained" the "property" of women seeking abortion

services by preventing them from obtaining those services.

In doing so, it followed its own circuit authority, which

significantly expanded the scope of the Hobbs Act so that it

covers far more activity traditionally covered by state

criminal law. Indeed, as we show below, that interpretation

creates concerns with the constitutionality of the Hobbs Act

altogether. The interpretation also appears to render

Congress’s passage of the Freedom of Access to Clinic

Entrances Act largely unnecessary.

. Pursuant to Rule 37.2(a) of the Rules of this Court, all parties

have consented to the filing of this brief.

Pursuant to Rule 37.6, amicus curiae CIR affirms that no

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

person or entity made a monetary contribution specifically for the

preparation or submission of this brief.

2

The interpretation of the Seventh Circuit reads the

“obtaining” of "property" as if it said "interference" with a

"right." Laws that prohibit "interference" with a "right" are

not unknown, but because "interference" is such a broad

term, they are often difficult to interpret and/or are interpret-

ed in a manner that creates First Amendment problems. Of

course, such problems must be dealt with where Congress

has passed a statute using words like "interference" and

"rights." But it seems inappropriate to create such problems

where Congress has used much simpler (and narrower)

terminology.

ARGUMENT

I. The Seventh Circuit’s Holding Diverts Federal

Criminal Law From Its Proper Purpose And Infringes

On State Domain.

Under our- Constitution, the intended and proper

purpose of federal criminal law is to supplement the criminal

law of the states by protecting federal interests. The

protection of citizens is the task of the states. Over the

course of roughly the last century, however, federal criminal

law has moved away from its role as a supplement to state

law and in the direction of a substitute police power. The

Seventh Circuit continues this trend by holding that unlawful

interference with abortion can be punished as extortion under

the Hobbs Act, 18 U.S.C. § 1951. Such a holding effective-

ly displaces state choices concerning the protections to be

given to intangible rights.

A. The Original Role of Federal Criminal Law

Prior to the addition of the Bill of Rights, the

Constitution made scant mention of federal criminal law. It

3

vested Congress with the power to punish the counterfeiting

of currency and securities of the United States, piracies and

felonies committed on the high seas, and crimes violating the

law of nations. U.S. Const. art. I, § 8. It enjoined both

Congress and the states from passing bills of attainder or ex

post facto laws, and provided for trial by jury in federal

prosecutions and extradition of fugitives from justice. /d.

art. I, §§ 9, 10. Beyond these specifics, however, the

proper role and scope of federal criminal jurisdiction was

unknown. The Constitution did not directly confer power to

exercise criminal jurisdiction, and controversy surrounded

the question of whether federal courts had jurisdiction over

common-law crimes. See Kathleen F. Brickey, Criminal

Mischief: The Federalization of Criminal Law, 46 Hastings

L.J. 1135, 1137 n.15 (1995). Accordingly, Congress’s first

forays into the realm of criminal law were marked by

extreme caution.

The early federal criminal laws were only concerned

with activity of special federal interest, such as conduct that

injured or interfered with the federal government or its

progi ums, or conduct occurring in areas of exclusive federal

jurisdiction. The Crimes Act of 1790, for example, pun-

~4 forgery of United States certificates, perjury in federal

court, treason, acts of violence against ambassadors, as well

as ordinary crimes committed within a fort, federal territory,

or the District of Columbia. Jd. at 1138. Through the mid-

nineteenth century, what few federal property crimes there

were concerned theft or destruction of federal property, such

as revenue fraud, theft from a federal bank, or arson on a

federal vessel. Jd. at 1138-39. In general, where no

specific federal interest could be identified, federal law did

not reach crimes against individuals. Laws for the general

protection of the citizenry fell squarely within the police

power of the states. Consequently, for years following the

4

adoption of the Constitution in 1789, the states defined and

prosecuted nearly all criminal conduct. American Bar

Association, Criminal Justice Section Task Force on Fed-

eralization of Criminal Law, The Federalization of Criminal

Law 5 (1998) [hereinafter ABA Report].

Such an arrangement was consistent with the vision

of the Framers. Writing to assuage antifederalist fears of

strong national government, Alexander Hamilton stated that

"the ordinary administration of criminal and civil justice"

would be the "one transcendent advantage belonging to the

province of the state governments" under the Constitution.

The Federalist No. 17 (Alexander Hamilton) 104 (New York

1788) (Legal Classics ed. 1983). The fact that the states

would be "the immediate and visible guardians of life and

property" would render them "at all times a complete

counterpoise . . . to the power of the union." Jd. James

Madison took Hamilton’s analysis one step further. The

ultimate beneficiaries of having the administration of

criminal justice remain solely in state hands were not the

states, but the people, since a "double security” to their

rights would develop under a system in which neither

sovereign encroached on the sphere of the other. The

Federalist, supra, No. 51 (James Madison) at 119-20. See

also New York v. United States, 505 U.S. 144, 154 (1992)

("{TJhe Constitution divides authority between federal and

State governments for the protection of individuals.").

B. The Expansion of Federal Criminal Law

Congress’s first attempts to regulate criminal activity

that did not directly involve federal interests were motivated

by concerns about state enforcement. The post-Civil War

civil rights acts, for example, established criminal sanctions

for infringements of the rights they created because the

5

courts of some states could not be counted on to extend the

protection of the laws to everyone. Even with that base,

some laws were found unconstitutional. E.g., United States

v. Harris, 106 U.S. 629 (1882) (holding that Congress had

no general power to punish a private citizen for an invasion

of the rights of another and declaring criminal provisions of

Section 2 of the Civil Rights Act of 1871 unconstitutional).

However, more typical of the federal government’s early

efforts at the direct protection of private citizens were

circumstances in which federal law could supplement state

law by focusing on a particular federal interest. The Post

Office Act of 1872, for example, forbade mailing lottery

tickets or obscene matter, or using the mails to defraud.

John S. Baker, Jr., Nationalizing Criminal Law: Does

Organized Crime Make It Necessary or Proper?, 16 Rutgers

L.J. 495, 514 (1985). Though the effects of mail fraud and

pornography were felt at the local rather than federal level,

Congress was specifically empowered to regulate the postal

system itself. Despite the fact that it protected citizens and

not federal interests, the Post Office Act at least focused on

a specific federal area of expertise.

An analogous development occurred in the area of

interstate commerce as increased mobility brought new

threats to state economies. In 1884, for instance, Congress

forbade railroads and boat lines from accepting or transport-

ing diseased livestock. Lawrence M. Friedman, Crime and

Punishment in American History 116 (1994). Though lowa

tried to combat the spread of infectious disease with laws

against driving diseased cattle into its territory, it could not

criminalize the loading of the same cattle onto trains bound

for Iowa when the loading took place in Texas. Thus,

though the health of Iowa’s livestock was hardly a federal

interest, Congress’s authority over interstate commerce

allowed for a federal solution of greater breadth than any

6

given state itself could create.

Congress’s focus, however, eventually began to shift

from laws that would supplement state commercial regula-

tions to ordinary local crimes. The Mann Act, for example,

was an attempt to curb local prostitution by prohibiting the

transportation of a woman across state lines for illicit

purposes. Likewise the Dyer Act prohibited the interstate

transportation of a stolen motor vehicle. Chief Justice Taft

stated the rationale for such measures when he stated,

"Elaborately organized conspiracies for the theft of automo-

biles and the spiriting of them away . . . have roused Con-

gress to devise some method for defeating the success of

these widely spread schemes of larceny." Brooks v. Cuttes

States, 267 U.S. 432, 438 (1925).

The Chief Justice’s sentiments reflected the devel-

opment of two trends that pushed the federal government

away from its auxiliary role in the criminal law and in the

direction of a substitute police power. First, the idea that

Congress had been "roused" by automobile theft indicates

that local crime had become a matter for national attention,

which in turn meant an increased reliance on federalization

as the solution to local problems. Second, as calls for

increased federalization grew stronger, the crimes Congress

chose to bring within the federal ambit became ever more

tenuously linked to interstate commerce. After the Dyer and

Mann Acts came the National Stolen Property Act (prohibit-

ing transportation of stolen property across state lines), the

Lindbergh Act (prohibiting the interstate transportation of

kidnappees), and the Fugitive Felon Act (prohibiting inter-

state flight to avoid prosecution). Brickey, supra, at 1)43-

44

Despite the demise of Prohibition and accompanying

7

disengagement of the federal government from one aspect of

law enforcement, the federalization trend only accelerated

from the New Deal onward. Indeed, the passage of the

Twenty-First Amendment (repealing prohibition) led to a

flurry of criminal legislation. See generally Bradley,

Racketeering and the Federalization of Crime, 22 Am. Crim.

L. Rev. 213, 228-35 (1984); Chamberlain, Federal Criminal

Statutes, 20 A.B.A. J. 501, 501-03 (1934). One such statute

was The Federal Anti-Racketeering Act of 1934, 48 Stat.

979, ch. 569 (1934), which included language carried

forward in the Hobbs Act. See United States v. Culbert, 435

U.S. 371, 375 n.5 (1978). The 1934 Act bears the distinc-

tion of being the “earliest explicit extension of federal

criminal enforcement power based upon the effect upon

commerce rationale." N. Abrams, Federal Criminal Law

And Its Enforcement 38 (1986); see also Bradley, supra, 22

Am. Crim. L. Rev. at 233 (earlier legislation "required * *

* either interstate travel or use of a facility of interstate com-

merce."). Indeed, the 1934 Act seemed designed to push the

frontiers of Congressional authority to reach local crime.

See Note, Legislation, 21 Va. L. Rev. 568, 569 n.7 (1935)

(Congress “sens[ed] the tenuous nature of its power in this

field [of racketeering)" and "provided for the punishment of

persons whose acts ‘in any way or in any degree’ affect

interstate commerce"); id. at 572 n.20 (similar language

covering “acts in any degree affecting interstate commerce”

in Trade Interference Act "is probably of little value. The

effect of the acts prohibited must be more than incidental").

As Congress passed more laws based upon the

“effects” of crime on interstate commerce, it relied on the

more expansive interpretations of that branch of the com-

merce power that this Court provided. Thus, in Perez v.

United States, 402 U.S. 146 (1971), this Court upheld the

application of relevant criminal provisions of the Consumer

Credit Protection Act to the run-of-the-mill threatening

collection practices of a loan shark. There was no tie to

interstate commerce from the specific loan; it was sufficient

for this Court that Congress had found that extortionate

credit transactions generally are carried on to a substantial

extent in interstate or foreign commerce.

With the adveat o* the omnibus crime bill, Congress

utilized the “affecting commerce” theory and increased the

rate at which it created new federal offenses exponentially.

In the 1960’s and 1970's, concerns about organized crime,

drugs, street violence, and other social ills precipitated a

particularly significant rise in federal criminal legislation

dealing with local activity, including the Omnibus Crime

Control and Safe Streets Act of 1968, the Organized Crime

Control Act of 1970, and the Comprehensive Drug Abuse

Prevention and Control Act (Controlled Substances Act) of

1970. As concerns about crime grew more acute in the

1980’s and 1990’s, Congress enacted the Crime Control Act

of 1984, the Anti-Drug Abuse Acts of 1986 and 1988, and

the Violent Crime Control and Law Enforcement Act of

1994. In sum, more than forty percent of the federal

criminal provisions enacted since the Civil War have been

enacted in roughly the last thirty years. ABA Report, supra

at 7. As of 1998, federal crimes were so great in number

and so diffusely scattered throughout the United States Code

that no readily accessible list of them existed. Jd. at 9.

C. Federal Duplication of State Criminal Law

The explosion of Congressional activity concerning

local crime has resulted in a situation in which federal

criminal law now duplicates and supplants the law of the

States. As an example, the Violence Against Women Act,

which prohibits “travel across a state line . . . with the intent

9

to injure, harass, or intimidate [one’s] spouse or intimate

partner” (18 U.S.C. § 2261(a)(1)) has been used in place of

state homicide laws to punish murders. E.g., United States

v. Gluzman, 953 F. Supp. 84 (S.D.N.Y. 1997), aff'd, 154

F.3d 49 (2d Cir. 1998). Though the law invokes federal

jurisdiction as soon as a state border is crossed, the limita-

tions of human foresight make the law inapplicable until

after harm has been done. In practice, therefore, the law

fails to reach any activity not already within the purview of

crime. Such a situation arises out of the fact that the

interstate travel element of the statute bears no logical

relationship to the harm it seeks to prevent, and is merely

used to create a "hook" to the Constitution. The essence of

the proscribed conduct is the violent act itself, not the inter-

State movement.

Federal duplication of state criminal law is even more

pronounced in the field of property crimes. Unlike the

Violence Against Women Act, which nominally criminalizes

only the act of interstate travel, the federal arson statute, 18

U.S.C. § 844(i), punishes arson itself, so long as the

building affected is used in commerce. Consequently, except

in areas of exclusive federal jurisdiction, § 844(i) cannot

apply to any circumstance not already covered by state arson

laws.

While redundant protections in theory need not be

harmful, a criminal law uniformly applicable throughout the

United States threatens to undo policy decisions made by

tions on the same activity carry substantially different

sentences. Jones v. United States, 529 U.S. 848, 859 (2000)

(Stevens, J., concurring) ("The fact that petitioner received

a sentence of 35 years in prison when the maximum penalty

10

for the comparable state offense was only 10 years illustrates

how a criminal law like this may effectively displace a policy

choice made by the State.") (internal citations omitted).

Moreover, a general federal police power may result in

have consciously chosen not to outlaw, or even to protect.

More fundamentally, it creates an overlap in authority that

diminishes the protections to individuals that our system of

divided sovereignty was intended to provide.

D. The Effect of the Lower Court's Holding

The Hobbs Act, 18 U.S.C. § 1951, reads as follows:

(a) Whoever in any way or degree obstructs,

delays, or affects commerce or the movement

of any article or commodity in commerce, by

robbery or extortion or attempts or conspires

to do so, or commits or threatens physical

violence to any person or property in further-

ance of a plan or purpose to do anything in

violation of this section shall be fined under

this title or imprisoned not more than twenty

years, or both.

(b)(2) The term "extortion" means the ob-

taining 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.

Ostensibly a prohibition on the obstruction of inter-

state commerce, the Hobbs Act effectively duplicates state

11

law against robbery and extortion. What is unique to the

Hobbs Act, however, is that the expansion of federal

criminal jurisdiction it enables is as much the work of the

federal courts as Congress. By reading the “obtains prop-

erty” provision broadly, appellate courts have brought an

expansive range of activity previously regulated by state

prohibitions on coercion (with much lesser penalties) within

the definition of extortion. While the paradigmatic extortion

scheme is a demand for money coupled with a violent threat,

courts have extended the extortion prohibition of the Hobbs

Act to intangible interests that more closely resemble civil

liberties than property. The Fourth Circuit, for example,

has held that "the right . . . to make a business decision free

from outside pressure," is a form of property subject to

Hobbs Act extortion. United States v. Santoni, 585 F.2d

667, 673 (4th Cir. 1978). Likewise, the Third Circuit has

held that the Hobbs Act protects the "right to democratic

participation” in a labor union. United States v. Local 560

of International Brotherhood of Teamsters, 780 F.2d 267,

282 (3rd Cir. 1985). Holdings such as these have effectively

created the federal crime of “coercion affecting interstate

commerce,” and thus run afoul of the fundamental rule that

there is no federal common law of crimes.

The Seventh Circuit’s holding in this case continues

this trend. By interpreting "extortion" to include unlawful

interference with the mght to abortion, the court brings

criminal activity previously regulated by the states into the

federal sphere. In doing so, it displaces policy decisions

made by the states concerning the punishment of those who

interfere with intangible rights like the right to an abortion.

Such a result exemplifies the problems of federal encroach-

are concerned, including the right to protest others’ exercise

of their rights, even to the point of breaching the peace, the

12

degree and type of protection given to one right from private

interference has a profound effect on the exercise of others.

See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-

17 (1982). Accordingly, the state interest is particularly

concerned, and the ordering of those rights has always been

a state prerogative. PruneYard Shopping Center v. Robins,

447 U.S. 74, 85-86 (1980) (upholding state interest in

promoting more expansive free speech rights than conferred

by the federal Constitution at the expense of property rights);

Miller v. California, 413 U.S. 15, 30-34 (1973) (holding

local norms regarding obscenity relevant to the limits of

protected speech); Hill v. Colorado, 530 U.S. 703, 727

(2000) (deferring to state balancing of free speech and

privacy interests). By holding that wrongful interference

with another’s right can be punished as extortion under the

Hobbs Act, the Seventh Circuit has withdrawn punitive

discretion from the states, and thereby undone state choices

The breadth of the Seventh Circuit’s interpretation of

the Hobbs Act can be illustrated by a few examples. All

cases of quid pro quo sexual harassment would be Hobbs

Act violations where (1) the perpetrators lead the victims to

believe that they would lose their jobs or suffer some other

economic harm if they failed to submit’ and (2) some article

in commerce is affected. Common law business torts of

unfair competition frequently would be Hobbs Act violations

if the victims had been induced to refrain from entering into

transactions by others’ suggestions that they will attempt to

impose economic harm if the victims enter into the transac-

. The court instructed the jury that the “fear” element of extortion

under the Hobbs Act could be met by fear of economic harm. Scheidler

Pet. App. 15la (quoting Tr. 4946).

13

tion. If a speaker in the public square is intimidated from

speaking because of the menacing shouts of members in the

audience, those audience members, too, will have violated

the Hobbs Act under the Seventh Circuit’s expansive

Since the Hobbs Act also prohibits "official extor-

tion,” requiring no element of fear, violence, or threat, the

Seventh Circuit’s definition of “obtaining property" would

also be relevant for that crime. Presumably, avy act under

color of state law that violates Section 1983 would be

included so long as an article or commodity in commerce has

been affected. Thus, the Hobbs Act could then serve as an

alternative prosecutorial tool to Sections 241 and 242 of the

criminal code, each of which require a “specific intent” to

violate a particular federal right and "fair warning” of the

federal right in question. United States v. Price, 383 U.S.

787, 806 n.20 (1966); United States v. Lanier, 520 U.S.

259, 266-67 (1997). As predicate acts under RICO, 18

U.S.C. §§ 1961 ef seg., the Hobbs Act violations could

serve as an alternative to Section 1983, in which treble

damages could be recovered. So, too, RICO could serve as

a separate basis for suing federal officials who engage in

misconduct, rendering the Bivens action altogether outdated

for any pattern of misconduct.

Il. The Seventh Circuit’s Holding Effects A Change In

The Federal-State Balance Without A Clear Statement

By Congress.

In bringing interference with the right to abortion

within the parameters of the Hobbs Act, the Seventh Circuit

ignored three of this Court’s rules of statutory interpretation,

those of preserving the federal-state balance, avoiding

constitutional questions, and construing criminal statutes

14

narrowly (i.e., with lenity). Because protection of economic

and political intangible rights, particularly from private inter-

ference, fall within the state sphere, extending the reach of

the Hobbs Act to include them requires a clear signal that

Congress intended the law to reach them.

A. Statutes Should Be Read To Avoid Altering The

Federal-State Baiance

As discussed above, over the last two centuries

federal law has evolved from a few modest statutes pro-

tecting uniquely federal interests to a parallel system of

criminal protections that applies not only where state law is

inadequate, but in many circumstances where it is perfectly

adequate. Nonetheless, as this Court recently and repeatedly

has recognized, under our federal system the primary re-

sponsibility for defining and enforcing the criminal law still

falls upon the states. United States v. Lopez, 514 U.S. 549,

561 n.3 (1995). Accordingly, expansions of federal criminal

provisions that do not directly protect federal interests

necessarily alter the delicate balance between state and

federal regulatory authority. To protect this balance, this

Court has stated that it "will not be quick to assume that

Congress has meant to effect a significant change in the

sensitive relation between federal and state criminal juris-

diction” unless Congress makes clear an intent to do so.

United States v. Bass, 404 U.S. 336, 349 (1971). In other

words, where a "broad construction. . . renders traditionally

local criminal conduct a matter for federal enforcement," a

narrow construction is preferred. Jd. at 350.

Congress passed the Hobbs Act in response to this

Court’s decision in United States v. Local 807 of Interna-

tional Brotherhood of Teamsters, 315 U.S. 521 (1942),

which to some legislators seemed to "legalize in certain labor

15

disputes the use of robbery and extortion." 91 Cong. Rec.

11899-900 (1945) (statement of Rep. Hancock). The

defendants in Local 807 were convicted of having extorted

payment in violation of the Hobbs Act’s predecessor, the

Anti-Racketeering Act of 1934. The 1934 Act, however,

contained an exception for actors seeking "the payment of

wages by a bona-fide employer to a bona-fide employee,"

which this Court properly interpreted as excluding labor

organizers. As this Court stated, "[T]he elimination of

terroristic activities by professional gangsters was the aim of

the statute, and . . . no interference with traditional labor

union activities was intended." 315 U.S. at 530. By

removing the "bona-fide employer" provision but otherwise

mimicking the language of the 1934 Act, Congress, in

enacting the Hobbs Act, sought to eliminate the organized

labor exemption of the older statute but preserve its sub-

stance.

The broad reading of "obtaining" and "property"

adopted by the Court of Appeals in this case has thus

resulted in the application to petitioners of a statute intended

for "professional gangsters" engaging in “terroristic activi-

ties." Such a reading would be suspect even if it did not

result in the federalization of activity traditionally regulated

by the states. As commentators have observed, however,

"all of the [petitioners’] actions are subject to regulation and

prosecution at the state level." Stephan E. Oestreicher, Jr.,

Scheidler Meets Morrison (At the Entrance to a Health

Clinic), 35 Creighton L. Rev. 693, 712 (2002). Acts of

trespass and disturbing the peace are now within the parame-

ters of the Hobbs Act in the Seventh Circuit. Such a result

is inconsistent with this Court’s rule of preserving the state-

Slend Satenne ty cummuainn fotend qdtied ctu

narrowly.

16

B. Statutes Should Be Read to Avoid Constitutional

Probiems

The rule discussed in the preceding section is, as this

Court has observed, closely related to another rule of

Statutory interpretation, that of constitutional avoidance:

"[W]here a statute is susceptible of two constructions, by one

of which grave and doubtful constitutional questions arise

and by the other of which such questions are avoided, our

duty is to adopt the latter." United States ex rel. Attorney

General v. Delaware & Hudson Co., 213 U.S. 366, 408

(1909), quoted in Jones v. United States, 529 U.S. 848, 857

(2000).

Recent opinions by this Court have clarified the rule

in the context of statutes with a commerce "hook." In Solid

Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159 (2001)

("SWANCC"), this Court analyzed regulations promulgated

under the Clean Water Act that extended the federal govern-

ment’s authority to all bodies of water large enough to be

useful to migratory birds. The "Migratory Bird Rule” was

an administrative interpretation; the Clean Water Act itself

merely granted regulatory authority over "navigable waters."

33 U.S.C. § 1344(a). This Court held that the Migratory

Bird Rule was an excessively broad reading of the authority

granted by Congress, in part because Congress’s own

authority over mere mudflats and ponds was questionable.

Under United States v. Lopez, 514 U.S. 549 (1995), Con-

gress’s authority to regulate activities "affecting commerce”

within a sovereign state only reaches commercial activity that

overall substantially affects interstate commerce and non-

commercial acts with a distinct link to interstate commerce

in the specific instance. Jd. at 561-62. But see Morrison,

529 U.S. 598, 612 (2000) (a jurisdictional element "may

-

17

establish that the enactment is in pursuance of Congress’s

regulation of interstate commerce” (emphasis added)).

While lakes and rivers that supported interstate shipping

were within Congress’s purview, an interpretation of

"navigable waters" that authorized the Migratory Bird Rule

would require the Court to "evaluate the precise object or

activity that, in the aggregate, substantially affects interstate

commerce." SWANCC, 531 U.S. at 173. Thus, because the

Migratory Bird Rule would "invoke the outer limits of

Congress’s power," and "result in a significant impingement

of the States’ traditional and primary power over land and

water use," a narrower reading of “navigable waters" was

necessary. Jd. at 172-74.

The earlier case of Jones v. United States, 529 U.S.

848 (2000) involved the same principle. The petitioner in

Jones was convicted under the federal arson statute, 18

U.S.C § 844(i), of having thrown a Molotov cocktail into his

cousin’s residence. Section 844(i) made it a federal crime to

destroy any property "used in interstate or foreign commerce

or in any activity affecting interstate or foreign commerce."

The house Jones burned was supposedly connected to

interstate commerce in three ways: a mortgage, an insurance

policy, and deliveries of natural gas. In overturning Jones’s

conviction, this Court observed that a reading of “used in

interstate or foreign commerce" broad enough to encompass

the residence in question would arguably extend the protec-

tions of § 844(i) to every building in the United States.

Jones, 529 U.S. at 857. Because such a reading would

create problems under Lopez, this Court rejected it. Jd. at

857-58.

Applied to the Hobbs Act, this rule of construction

dictates an outcome contrary to that reached by the Seventh

Circuit in this case. Interpreting "obtaining" of "property"

18

to include any interference with intangible rights expands the

parameters of the Hobbs Act to encompass a significant

amount of non-economic activity. Although that may not be

impermissible if there is a jurisdictional element tying the act

in question to interstate commerce in a significant way, the

broad reach of the Hobbs Act jurisdictional element is very

much like the one this Court had to read narrowly in Jones

in order to avoid constitutional problems. That is, the

broader the reach of the substantive definition of extortion,

the more likely it is that this Court will have to read the

jurisdictional element narrowly to avoid difficult constitution-

al issues. On the other hand, a narrow reading of the Hobbs

Act that does not include interference with a right within

"extortion" avoids some of these difficult constitutional

issues under Lopez and Morrison.

C. Federal Criminal Statutes Should Always Be Read

Narrowly

A third rule of statutory interpretation at work in

Bass and Jones and relevant to petitioners’ claim is that of

lenity. Lenity dictates that any ambiguity in the breadth of

criminal statutes should be resolved in favor of narrowness,

SO as not to criminalize more activity than Congress intend-

ed. Dowling v. United States, 473 U.S. 207, 217-28 (1984)

("Due respect for the prerogatives of Congress in defining

federal crimes prompts restraint in this area, where we

typically find a ‘narrow interpretation’ appropriate."). As

this Court recently explained, lenity rests on two underlying

principles: 1) citizens should have fair warning of potential

criminal liability for their actions; and 2) legislatures, not

courts, should define criminal activity. Bass, 404 U.S. at

348. Though both principles are relevant to state criminal

law, lenity is a particularly important consideration where

federal statutes are concerned.

19

Applied to the case at hand, the rule of lenity

compels a narrower interpretation of extortion than the

Seventh Circuit’s. Holding that interference with another’s

personal liberty to undergo abortion is equivalent to ob-

taining property broadens the meaning of extortion to

encompass the famiuar crime of coercion. "Extortion

protects property; coercion protects autonomy." G. Robert

Blakey & Kevin P. Roddy, Reflections on Reves v. Ernst &

Young: /ts Meaning and Impact on Substantive, Accessory,

Aiding Abetting and Conspiracy Liability Under RICO, 33

Am. Crim. L. Rev. 1345, 1600 (1996). The drafters of the

Hobbs Act did not intend it to extend to coercion. The

language of the Hobbs Act was borrowed from the criminal

law of New ‘ork, as Representative Hobbs himself acknowl-

edged. 91 Cong. Rec. 11900 (1945) (statement of Rep.

Hobbs) ("The definitions in this bill are copied from the

New York Code substantially."). The contemporary

criminal law of New York, consistent with the common law,

knew coercion and extortion as separate offenses. N.Y.

Penal Law §§ 530, 851 (1909). This Court has held that

when a legislature borrows the language of a statute from

another jurisdiction, the language must be construed the way

the other jurisdiction intended. See Metropolitan R.R. Co.

v. Moore, 121 U.S. 558, 572 (1887) ("construed in the sense

in which they were understood at the time in that system

from which they were taken"). Extortion under the Hobbs

Act, therefore, should protect the property interest that New

York’s extortion law protected, not the autonomy protected

by its law of coercion.

Ii. The Decision Of The Lower Court Interferes With

The Policy Decisions Made In The Freedom Of

Access To Clinic Entrances Act

In the Freedom of Access to Clinic Entrances Act

20

("FACE"), Congress protected the provision and receipt of

"reproductive health services." It prohibited the use of force

or threat of force or physical obstruction to attempt to injure,

intimidate or interfere with any one trying to obtain or

provide reproductive health services. 18 U.S.C. § 248(a).

It provided for criminal penalties for those who violate those

prohibitions, including a fine and a maximum sentence of

one year for a first-time offender and three years for a repeat

offender. 18 U.S.C. § 248(b). Lesser penalties are provid-

ed if the violation was a nonviolent one. Jd. Civil actions

may be brought "only by a person involved in providing or

seeking to provide, or obtaining or seeking to obtain,

services in a facility that provides reproductive health

services." 18 U.S.C. § 248(c)(1)(A). Such plaintiffs may

choose actual damages or statutory damages in the amount

of $ 5,000 per violation. There are provisions for attorneys’

fees (including the costs of expert witnesses), but not treble

damages. Congress has not made a violation of FACE a

predicate act under RICO.

When Congress has set up a very specific scheme for

the vindication of a very particular right, this Court should

be reluctant to interpret a different statute in a way that

would render the detailed scheme meaningless. Patterson v.

McLean Credit Union, 491 U.S. 164, 180 (1989) ("In-

terpreting § 1981 to cover postformation conduct unrelated

to an employee’s right to enforce his or her contract, such as

incidents relating to the conditions of employment, is not

only inconsistent with that statute’s limitation to the making

and enforcement of contracts, but would also undermine the

detailed and well-crafted procedures for conciliation and

resolution of Title VII claims"). Here, the Hobbs Act calls

for criminal penalties of up to twenty years; FACE has a

maximum penalty of three years. Because the Hobbs Act is

a predicate act under RICO, the various restrictions on civil

21

actions in FACE can also be circumvented where a pattern

of such violations can be alleged.’

The difference between FACE -- where Congress has

specifically and unambiguously altered the balance between

federal and state relations -- and the Hobbs Act could not be

more stark. So, too, the constitutional issue appears in a

much different light. FACE protects only one kind of

commercial activity, one which Congress specifically

concluded had a substantial effect on interstate commerce.

Hoffman v. Hunt, 126 F.3d 575, 583 (4th Cir. 1997). Thus,

it is perhaps more likely to survive constitutional challenge,

even if the activity being regulated may not be economic.

Compare Hoffman v. Hunt, 126 F.3d at 586-87 (upholding

FACE because it regulated conduct "‘closely and directly

connected with an economic activity’ -- the operation of

abortion clinics") with United States v. Bird, 124 F.3d 667,

675 (Sth Cir. 1997) (although FACE regulated non-economic

activity, it was valid because it was "‘an essential part of a

larger regulation of economic activity in which the regulato-

ry scheme could be undercut unless the intrastate activity

were regulated’").

In contrast, under the Seventh Circuit’s interpretation,

the Hobbs Act regulates "any robbery or extortion" that

"affects" the "movement of any article or commodity in

commerce,” where "extortion" includes the interference in

. To be sure, Congress specifically stated that FACE should not

be considered an “exclusive” penalty or remedy for the conduct that it

prohibited, but its focus appeared to be on not preempting state laws that

protected the provision of reproductive health services. 18 U.S.C.

§ 248(d)(3) ("Nothing in this section shall be construed . . . to provide

exclusive criminal penalties or civil remedies with respect to the conduct

prohibited by this section, or to preempt State or local laws thet may

provide such penalties or remedies").

22

one’s exercise of a right. Robbery and extortion are not

commercial activities (and not closely related to a commer-

cial transaction, as the extortionate collection of loans were

for the statute considered in Perez); the Seventh Circuit’s

interpretation makes extortion even less so; and the con-

nection to interstate commerce seems even weaker than the

government’s proffered connection in Jones v. United States.

There are good reasons for not extending the Hobbs Act so

far by judicial fiat. See Part Il, supra. Those reasons are

strengthened where Congress has passed a far more specific

statute covering the particular misconduct in question.

IV. The Interpretation Of The Court Below Creates

Unnecessary First Amendment Problems

In concluding that the defendants “obtained” the

property, the court below asserted that it was following long-

standing Seventh Circuit precedent holding that all that was

needed to meet the statutory definition was interference with

a right. National Organization of Women v. Scheidler, 267

F.3d 687, 709 (7th Cir. 2001) ("A loss to, or interference

with the rights of, the victim is all that is required”).

Statutes that prohibit "interference" inevitably create

some First Amendment problems since one can interfere in

all sorts of ways with another’s goals, including with speech

and petitioning activity. E.g., Dorman v. Satti, 862 F.2d

432 (2d Cir. 1988) (declaring the Hunter Harassment Act,

which prohibited interference with the lawful taking of

wildlife, unconstitutional). For example, the FACE statute

discussed in the last section prohibits interference by threat

of force with someone else’s efforts to obtain or provide

reproductive health services. 18 U.S.C. § 248(a)(1).

Congress somewhat gratuitously asserted that the statute

should not be interpreted to prohibit "expressive conduct. . .

23

protected from legal prohibition by the First Amendment"

(18 U.S.C. § 248(d)(1)) or “to create new remedies for

interference with activities protected by the ... First

Amendment" (18 U.S.C. § 248(d)(2)). Nonetheless, the

Ninth Circuit has struggled with whether speech that con-

tained no explicit threats nonetheless suggested a threat

against abortion doctors in violation of FACE. Compare

Planned Parenthood of the Columbia/Willamette, Inc. v.

American Coalition of Life Activists, 244 F.3d 1006 (9th Cir.

2001) (answering "no") with Planned Parenthood of the

Columbia/Willamette, Inc. v. American Coalition of Life

Activists, 2002 U.S. App. LEXIS 9314 (9th Cir. May 21,

2002) (en banc) (answering "yes").

Similarly, the Fair Housing Act states:

It shall be unlawful to coerce, intimidate, threaten, or

interfere with any person in the exercise or enjoy-

ment of, or on account of his having exercised or

enjoyed, or on account of his having aided or encour-

aged any other person in the exercise or enjoyment

of, any right granted or protected by [the Fair Hous-

ing Act].

42 U.S.C. § 3617. Several courts have interpreted this

provision to preclude petitioning government for discrimi-

natory reasons. In United States v. Scott, 788 F. Supp. 1555

(D. Kan. 1992), for example, the district court adopted the

United States’s contention that the filing of a reasonably-

based state court action to enforce the terms of a restrictive

covenant requiring a home to be a single family dwelling for

residential purposes violated Section 3617. The defendants

in the federal action had tried to enjoin the purchase of the

home by a group devoted to providing services for the

disabled, and were concededly motivated by the handicap of

24

the future occupants. The court concluded that the act of

issuing a letter threatening to enforce the restrictive cove-

nant, and the filing of the lawsuit, constituted a violation of

Section 3617. Id. at 1562.

In LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261

(S.D.N.Y. 1991), the district court concluded that the efforts

of local private citizens to incorporate their neighborhood,

which proposition was voted on and passed by 72% of the

voters, would violate the Fair Housing Act if done to

achieve discriminatory goals. (The complaint alleged that

the activity was undertaken to prevent an Orthodox Jewish

place of worship in the neighborhood.) Jd. at 271-72.

Although these authorities are now a minority view,‘

they were the accepted view of the executive branch of the

federal government (as Scort reflects) for many years. See,

e.g., Nat Hentoff, HUD’s Attack On The First Amendment.

Wash. Post, Sept. 17, 1994 at A-15; William Brand, Speech

Spells Trouble, Oakland Tribune, July 21, 1994 at A-9

(quoting Justice Department spokesman: "If . . . someone

goes to a public hearing and makes his or her view known

Justice would sue that person"). The difficulty, of course,

is that “interference” with a "right" can be construed to

include actions taken through the political process to prevent

. White v. Lee, 227 F.3d 1214, 1230 (9th Cir. 2000) ("In theory,

§ 3617 could be interpreted even more broadly, so that a wide range of

speech regarding the housing rights of others could be investigated and

sanctioned. One person’s persuasive editorial on a zoning dispute, for

instance, might well ‘interfere’ with another person’s ability to secure

housing. So construed, however, § 3617 would quickly run afoul of the

First Amendment principles ... "); The Barnes Foundation v. The

Township of Lower Merion, 242 F.3d 151, 160-62 (3d Cir. 2001) (noting

trend of authority).

housing from being built.

To be sure, when dealing with statutes like FACE

and the Fair Housing Act, the problem must be addressed,

and the conflict with First Amendment values must be

resolved, because those statutes specifically prohibit "inter-

ference" (and Section 3617 of the Fair Housing Act prohibits

interference with "rights"). But the Hobbs Act does not. It

prohibits obtaining the property of another. By interpreting

it to mean "interference" with "rights," the court below

invited a whole series of free speech problems that easily can

be avoided simply by interpreting the statute in a fashion

more consistent with its actual terms. For this reason as

well, the Seventh Circuit’s broad reinterpretation of the

statute should be rejected.

CONCLUSION

The judgment of the court below should be reversed.

Respectfully submitted,

Michael E. Rosman

Counsel of Record

CENTER FOR INDIVIDUAL RIGHTS

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Washington, DC 20036

(202) 833-8400