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

Nos. 01-1118. 01-1119 | SEP12 20m

ame

In The

Supreme Court of the United States

«

JOSEPH SCHEIDLER, ET AL..

Petitioners,

Vv.

NATIONAL ORGANIZATION

FOR WOMEN, INC. FT AL.,

Respondents.

OPERATION RESCUE,

Petitioners,

V.

NATIONAL ORGANIZATION

FOR WOMEN, INC. ET AL.,

Respondents.

®

On Writs of Certiorari To The United States

Court of Appeals For The Seventh Circuit —

®

BRIEF OF EMILY LYONS

IN SUPPORT OF RESPONDENTS

®

PAMELA L. SUMNERS*

5443 N. BROADWAY

SUITE 2-S

CHICAGO, IL 60640

(773) 271-8324

Counsel for Emily Lyons *Counsel of Record

TABLE OF CONTENTS

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INTEREST OF THE AMICA CURIAE ........0.0000000e l

SUMMARY OF THE ARGUMENT ................00. 4

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I. VIOLENT CRIMINAL ACTIVITY IS

NEITHER PROTECTED SPEECH NOR

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II. PUNISHING CRIME EFFICIENTLY AND

UNIFORMLY IS NOT A _ STATES’

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lil. OUR SYSTEM DEMANDS THAT WE

TRUST OUR CITIZENS WITH ACCESS

TO THE COURTS AND AS JURORS ..... 15

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TABLE OF AUTHORITIES

Adderly v. Florida, 329 U.S. 39 (1966) ............ 8

Brown v. Louisiana, 383 U.S. 131 (1966) .......... 8

Madsen v. Women’s Health Center,

SES UE. Fae Cee 60 000nes deeuntent 17,18

Statutes

91 Cong. Rec. 11,901 (1945) .......ccccccecccees )

FE Comm, Res. 11,508 CIGSS) .. wn ccccccccecsccsens 9

91 Cong. Rec. 11,903 (1945) ........ ccc eceeees 14

91 Cong. Rec. 11,907 (1945) ........... cc eee eee )

91 Cong. Rec. 11,910 (1945) ................ 10, 14

91 Cong. Rec. 11,911 (1945) ............ 13, 14, 15

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fib ied |. Byer passim

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Other Sources

Speech of Emily Lyons, “7o Hell and Back,”

reprinted at www.plannedparenthood.org/political

arena/violence/emily.html .......0...00045. 2

George Orwell, “Politics and the English Language,”

in The Orwell Reader (1984 ed., HBJ:

keer rer ere ee 8

Carol Robertson, “Dog Sniffs Trace of Explosives

in Vacant Home,” The Birmingham News (July 18,

| PTT Te 12

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Howard Sitkoff, The Struggle for Black Equality

(Harper Collins Ltd. 1993) ................ 8

Southeast Bomb Task Force, FBI Home Page, at

http://www. fbi.gov/majcases /rudolph

eee eke gesescescces 4

“Town Divided over Eric Rudolph: Some in Andrews

Say They Would Not Turn the Bombing Suspect in, "

The Associated Press (Jul. 19, 1998) ....... 12

2000 National Clinic Violence Survey Report

(Feminist Majority Foundation)

(released Jan. 22, 2001), available at

http://www. feminist.org/research/cvsurveys

/clinic_survey2000.pdf17 ................ 17

Rachel Zoll, “Clergy Split over Fugitive,”

The Associated Press (Jul. 21, 1998) ....... 13

PA

PX

iv

ABBREVIATIONS KEY

Appendix of Petitioner Operation

Rescue

Respondent’s Exhibits at Trial

(Plaintiffs’ Exhibits)

Respondents’ Appendix in_ the

Seventh Circuit (Appendix to

Plaintiffs-Appellees’ Brief)

Record in the Seventh Circuit

Trial Transcript in the District Court

INTEREST OF THE AMICA CURIAE'

At 7:30 a.m. a bomb that had been placed in

a potted plant outside the clinic 1 worked in

exploded about 15 feet from where I was

standing. Someone who considers himself to

be pro-life murdered a police officer.

The pipe bomb contained dynamite and

nails. I am often asked what my injuries

were. I usually ask them, “How much time

do you have?” I had first, second, and third

degree burns. The trauma _ surgeon

described it by saying that I had hundreds of

wounds. He had served in Desert Storm and

had seen others who had been bombed. He

was shocked to see a bombing victim back in

the United States.

Metal tore my left eye to the extent that it

had to be removed. Metal also shot into my

right eye. After several operations and

months of waiting, | am able to see well

enough to read a little, but my sighi will

, No counsel for any party had any role in authoring this brief,

and no persons other than amica curiae and her counsel made any

monetary contribution to its preparation and submission. Written

consents from the parties to the filing of the amicus briefs in this case

are on file with the Clerk of the Court. Counsel of r2cord for amica

curiae is a member of the Alabama bar.

2

never be like it was. My face, eye sockets,

and teeth were broken, my left ear was

ruptured, my right hand was mangled, a

hole about the size of a fist was torn in my

abdomen, exposing my intestines. Both

knees were so full of nails that they had to

be opened and the nails cleaned out before

they would move again. The skin was torn

off both shins, exposing bone and requiring

skin grafts. Both bones in my lower left leg

were shattered, and the doctors feared

amputation of one leg. I had dozens of

complete nails inside my body, and hundreds

of metal fragments and other debris. The

blast was so strong it shredded my clothing

and blew my shoes off.

I have had 12 operations this year’ and

expect many more next year. As a result, 1

am a trained nurse with 20 years experience

who cannot write, read or stand for long

periods of time.

Speech of Emily Lyons, “To Hell and Back,” reprinted at

www.plannedparenthood.org/political

arena/violence/emily. html.

Emily Lyons has an interest in seeing that the

terrorist who caused her horrific injuries and any

. 1998. Further operations followed.

3

confederates who aided him (criminals who received

nothing other than the malevolent satisfaction of shutting

down the Birmingham clinic and maiming and killing its

workers) are punished, including under federal statutes.

As a clinic worker and a survivor of the Birmingham clinic

bombing, she is deeply troubled by Petitioners’ attempts to

cloak violence in the garb of protected expression and to

invoke “States’ Rights” to subvert individual rights. Ms.

Lyons, having filed suit to prevent the suspect in the

Birmingham bombing from profiting from his wrong — if

he is ever caught and his guilt established — also has

abiding confidence in the jury system that Petitioners and

their amici disparage in their filings with this Court. She

has an interest in vigorous prosecution against crime such

as she endured and, as an Alabamian, has an interest in

access to the jury process that the Alabama Attorney

General has evinced reservations about in his amicus brief

in this case.

Emily Lyons simply reported to work at the

women’s clinic where she had served for four years, New

Woman/All Women in Birmingham, Alabama, on January

29, 1998. No one asked her if she consented to trade her

eyesight or physical vitality for the privilege. Having

endured the horror of that day and the horror of repeated

surgeries to return to her a fraction of her former body and

life before that day, she retains the courage and the belief

in the rule of law to caution her fellow citizens: “Do not

allow anyone or anything, be it fear or intimidation, to

make you lose sight of the main goal — to provide and

support a woman’s right to reproductive health as they see

fit.” Id.

SUMMARY OF ARGUMENT

This case is not a judicial plebiscite on the right to

peaceful protest activities or on the allocation of federal

’ Eric Robert Rudolph, the man that the FBI considers the

murderer of Birmingham police officer Robert Sanderson and the

maimer of Emily Lyons, was charged in February 1998. The

Birmingham bombing capped Atlanta’s trilogy of terror directed

against internationalism, reproductive health service providers, and

lesbians.

On Saturday, February 27, 1996, at 1:00 a.m., a caller dialed

911 from a pay phone and reported, “There’s a bomb in Centennial

Park. You have 30 minutes.” Twenty minutes later, the military-style

backpack placed under a bench in the park where an estimated 50-

70,000 milled about during, .ie Atlanta Olympics exploded. The blast

killed one person and injured 100 others. See Southeast Bomb Task

Force, FBI Home Page, http://www.fbi.gov/majcases

/rudolph/rudolph!.htm. Rudolph was charged in the bombing

October 14, 1998. Id.

The bomb at Atlanta’s Sandy Springs Professional Building

on January 16, 1997 used 3 1/2" pounds of | 1/2" long flooring nails,

100 feet of twisted galvanized wire, and dynamite. The Sandy

Springs Professional Building housed the Northside Family Planning

Clinic. Several people were injured, including police officers. /d.

_ The bomb that caused the injuries was an anti-personnel device,

timed for a second explosion to harm the rescuers. Rudolph was

charged in this bombing October 14, 1998. /d.

The Otherside Lounge, an Atlanta lesbian bar, was bombed

February 21, 1997. That bomb used 6 1/2" pounds of 2" long nails,

twisted galvanized wire, and between 30 to 50 half-pound sticks of

dynamite. Rudolph was charged in that bombing October 14, 1998.

Id.

5

versus state powers even though Petitioners and their amici

labor mightily to transform it into one.

Contrary to Petitioners’ suggestion, bombs,

blockades and blitzes of women’s health clinics share no

kinship with protected forms of nonviolent expression

epitomized by the civil rights sit-ins that are seared into our

nation’s conscience. The truth is that bombers, brawlers,

and blitzers of women’s health clinics that provide

abortion services are the very antithesis of the civil rights

heroes with whom Petitioners equate them. Those who

plant bombs or use clubs, fists, violent blockades, or

nefarious means to express their dissent from this Court’s

substantive due process jurisprudence are criminals who

should be punished as criminals, however sincere their

beliefs.

Moreover, Petitioners’ suggestion that their position

nurtures federalism is either such a meaningless abstraction

that it is tantamount to fetishism, or is a transparent

justification for a desire not to enforce the law uniformly

for all Americans — and thereby to weaken a national

commitment to safe, legal abortions. Architects and

purveyors of violence, whether of the degree Emily Lyons

endured or of the degree the jury found in this case, should

be punished with the full weight of the law, including

federal statutes. “States’ Rights” should not be invested

with talismanic properties to ward off the force of

available federal law, as Congress recognized decades ago

in enacting the Hobbs Act over the objections of those who

cited the very States’ Rights rationale urged by Petitioners

today.

Finally, true to our national values, we must trust

6

our citizens with access to causes of action and to the

courts that Petitioners and their amici resist. We must trust

them, as litigants and as jurors, to distinguish substance

from shadow and to be worthy of the sovereignty they

enjoy. Anything less than respect for the rights of citizens

and the powers our system confides to them is

contemptuous toward the very premise of se! f government.

I. VIOLENT CRIMINAL ACTIVITY IS

NEITHER PROTECTED SPEECH NOR

HEROIC DISSENT.

Petitioner Operation Rescue surmises that because

a jury found “only” four acts of violence in the course of

deliberating, its good judgment is somehow suspect; the

remedies it sanctioned are, accordingly, heavy-handed,

naive extensions of the federal statutes whose application

is challenged here. (Pet. Operation Rescue’s Br. (“OR

Br.”) at 3, 4 n.8.)* The plain fact is that the jury in this

* Interestingly, Operation Rescue concedes that the same jury that

found these acts of violence rejected any notion that liability could

be imposed for speech unaccompanied by violence or violation of

law, yet Operation Ru. cue refuses to acknowledge that this in itself

demonstrates the falsity of its theorem that a jury cannot be trusted

to distinguish punishable threats from protected speech. (See OR Br.

at 5 n.10.) Certainly, the same jury that appreciated this distinction

credibly demonstrated that it understood, as Alabama’s

Representative Hobbs did in authoring the Act that bears his name,

that crime is crime, and speech is speech. (See 91 Cong. Rec. at

11,912) (1945) (statement of Rep. Hobbs). It is an insult to the work

of that jury to preface a description of its finding of four acts or

threats of violence with the word “only” — just as it would be to

4

&

7

case was not seduced into conflating violent, illegal

activities with nonviolent expressive protest despite

Petitioners’ invitations. It did its job of parsing the

distinction between vehemence and violence, dissent and

destruction.

Operation Rescue appropriates the mantle of the

Civil Rights Movement to cloak tactics never

countenanced by that movement. It wears the democratic

constitutionalist’s robes before this Court, but only by way

of camouflage. Its rhetoric is not reality.

In Operation Rescue’s rhetorical world, its own

description of itself in other fora as a “pro-life mafia” is

recast here as a metaphor for “activism, not violence.”

(OR’s Br. at 2 n.2.) Petitioners undeniably have a right to

try to wriggle out of a metaphor that is irreconcilable with

the sober, law-abiding image they hope to portray here, but

such revisionism should be noted fer the Orwellian feat

trivialize the charges against Eric Rudolph with the observation that

he is a suspect in “only” four bombings. -

Not surprisingly, given Operation Rescue’s apparent disdain

for the workings of the jury system, it also trivializes the subject

matter of the jury’s work: protecting women’s constitutional right

to reproductive health care without fear or intimidation. Apparently

blinded to the requirements of the law by zeal, it contends,

“Petitioners were not alleged to have obtained any tangible property

... Or any intangible property like trademarks or stocks — but only to

have interfered with the rights of women and the business of

abortion.” (OR Br. at 4) (emphasis added). In Operation Rescue’s

view, preventing access to health services, including through violent

means, is “ ‘mere’ interference with rights.” (OR Br. at 7.) It would

appear that it is this Petitioner, not the jury it impugns, that strikes a

cavalier attitude toward enforcing constitutional guarantees.

that it is: “the defense of the indefensible.” George

Orwell, “Politics and the English Language,” in The

Orwell Reader at 363 (1984 ed., HBJ: New York).

In this rhetorical world, the Civil Rights sit-ins, the

objective of which was to secure access to public

accommodations on the same terms as white citizens, are

mischaracterized as blockading whites from access to the

lunch counters just as Petitioners blockaded clinic access.

(OR’s Br. at 26-27.) But the truth of the desegregation sit-

ins cannot be revised: the protestors wanted a space at the

table, not to keep other patrons from theirs. The sit-in

manual commanded: “Don’t strike back, or curse if

attacked ... Don’t block entrances.” See Howard Sitkoff,

The Struggle for Black Equality 67 (Harper Collins Ltd.

:993).

This Court knows the difference between seeking

access and blocking it, having upheld the right “in a

peaceable and orderly manner to protest by silent and

reproachful presence,” in a place where the protestant has

every right to be,” Brown v. Louisiana, 383 U.S. 131, 142

(1966), while allowing to stand the criminal-trespass

convictions of 200 students who blocked access to the jail

to protest the arrest of civil rights demonstrators. Adderly -

v. Florida, 389 U.S. 39 (1966). The tactics Petitioners

seek to defend call to mind not the lunch counters of

Greensboro, but George Wallace blocking the doors at

Tuscaloosa.

5 Or, it should be noted, to chant, speak, counsel or attempt to

persuade, consistent with reasonable time, place and manner

constraints. Threats of bodily harm are not reasonable.

EE SRE TEE, SEIS TET LS ORR A ee

re er

9

Continuing in its campaign of misdirection,

Petitioner Operation Rescue insists that the Seventh

Circuit’s construction of RICO “would make a racketeer

out of Martin Luther King, Jr.” (OR Br. at 7.) Gandhi.

too, would be an extortionist. (OR Br. at 44.) ° “Social

protest,” it reminds us, “has a long and revered history in

this nation.” (OR Br. at 28.)

Violence, too, has a long history in this nation,

although what we revere, and what has sustained us, is our

fidelity to the rule of law that punishes it. Contrary to

Operation Rescue’s insinuation, it is not “social protest”

that we punish when we punish violence. Social protest

does not mangle bodies. Gandhi had no gunpowder.

This is not a novel form of argument. In floor debates on the

Hobbs Act, some representatives (who also objected to passage

based on States’ Rights) conjured a parade of horribles about the

Act’s alleged chilling effect on legitimate protest activities.

Representative Celler predicted that union strikes, labor picketing,

hurling the “scab” epithet, and even the collective bargaining process

itself would fall within the Act’s definition of “violence” or “force.”

(91 Cong. Rec. at 11,901)(statement of Rep. Celler)(1945). He

predicted that anyone who voted at a union meeting to strike would

meet federal felony charges; indeed, he predicted that union members

could be found to have “conspired” to commit the “felony” of

exercising their legally protected labor rights. (/d. at 11,902).

Such use of the propagandist’s tool was rebuked by

Representative Fellows of Maine, who wryly observed of simitar

rhetorical excesses, “In common law pleading we would call that

something akin to a departure. | allege that a man has converted to

his own use my horse and he replies that his grandmother is a fine

woman.” (91 Cong. Rec. at 11,907) (statement of Rep. Fellows)

(1945).

10

Martin Luther King, Jr. did not block white citizens from

exercising the franchise by burning the voting booth or

forcing them to run a gauntlet of angry African-Americans

hurling threats or fists at them. Fifty-lb. sticks of

dynamite, galvanized nails, and anti-personnel backup

bombs are not political tracts.

The rhetorical sleights-of-hand that characterize

Operation Rescue’s image-sculpting provide insight into

why it chose to compare the violent persons in its ranks to

those peaceful protestors who marched over Selma’s

Edmund Pettus Bridge. Operation Rescue is two-faced

Janus, woundedly protesting its moderation here while

presenting quite another face to the troops. Clinic

invasions and blockades, initially characterized for insiders

as martial “blitzes” at “abortuaries” were revised into Clara

Bartonesque “rescues” for public and judicial

consumption. (See PX797B, 801 at 13-14; 1303, T1018.)

When the public relations antennae were more relaxed,

however, PLAN members continued to justify bombings as

“necessary defense.” (See PX713.) Tellingly, Petitioner

Scheidler, posing in front of a burned-out clinic, described

the photograph as a “great scene.” (PX719.)

In this Court, Petitioners may liken themselves to

the heroes of this nation’s epic nonviolent struggle for an

end to racial disenfranchisement, but elsewhere,

unretouched by the revisionist brush, Petitioner Scheidler

scorns as spineless those ideological compatriots who

condemn violence as a means to ending legal abortion.

(See PA217; T1511-12, 3936, 4144, PX801 at 13.)

Elsewhere, he has spoken of his “virtual army” for whom

“the abortion clinic door means nothing,” and has advised

my

11

doctors who might view his public threats as exactly what

they are to flee to the mountains. (PX801 at 19; PA211.)

These words match the tactics of PLAN

conspirators in their virulence. Self-evidently they bear no

resemblance to the words or deeds of the Reverend King.

Nor can they be reconciled with the image of the

champions of robust public debate that PLAN participants

project here.

Those who “express” their protest of abortion with

fists, projectiles, and bombs do not stand in any venerated

first amendment tradition. They are in fact criminals,

despite Petitioners’ apologia for them. (See OR Br. at 28

(lamenting that Seventh Circuit’s opinion treats those who

express dissent through violence as criminals); Pet.

Scheidler’s Br. at 15 (objecting to prison sentences for

Hobbs Act violations).)

Presumably, in Petitioners’ view, the purity of the

criminal’s commitment to his principles means that his

deeds should go unpunished. Punishing crime regardless

of the actor’s motivations, it warns, would snare what

popular understanding would brand as “politically correct”

activists, too, such as animal-rights or anti-nuclear

activists. (See OR Br. at 44; Scheidler Br. at 35.) The

contention about animal-rights and anti-nuclear activists is

among the few unassailably true statements in Operation

Rescue’s brief.

To the extent that, as Operation Rescue speculates,

PETA or anti-nuclear activists acquire dynamite or bombs

and plan to use them to demonstrate their disdain for

furriers or power plants, they should be treated as criminals

regardless of their views about the morality of animal

12

vivisection or global ecology. (See OR Br. at 44.) Any

deviation from the neutral enforcement of laws punishing

terroristic acts because of sympathy with the actor’s

viewpoint does violence to the rule of law.

That evenhandedness is a good thing on which the

integrity of our legal system depends, that we cannot elect

to punish some terrorists because we appreciate their

sincerity while we would punish others, appears to have

eluded Petitioners. What is good for PETA is good for

Operation Rescue, or, as the sponsor of the Hobbs Act put

it, “Crime is crime, no matter who commits it.” (91 Cong.

Rec. at 11,912) (statement of Rep. Hobbs) (1945).

Il. PUNISHING CRIME EFFICIENTLY

AND UNIFORMLY IS NOT A STATES’

RIGHTS ISSUE.

The search for Eric Robert Rudolph in connection

with the Birmingham clinic bombing was federalized. In

mid-July 1998, Rudolph was seen in the wilds of North

Carolina’s Nantahala National Forest. In the small

mountain town of Andrews, where residue of explosives

was found in a vacant house in which Rudolph is believed

to have hidden, residents were divided over whether he

should be considered an outlaw or the hero in a struggle

with federal authorities. See Carol Robertson, “Dog Sniffs

Trace of Explosives in Vacant Home,” The Birmingham

News at 1 (July 18, 1998); “Town Divided over Eric

Rudolph: Some in Andrews Say They Would Not Turn the

Bombing Suspect in,” The Associated Press (Jul. 19,

1998). Some clergy urged parishioners to volunteer

13

information to the authorities, while others stated that they

would not condemn any local citizens who helped the

bombing suspect to evade federal capture. Rachel

Zoll, “Clergy Split over Fugitive," The Associated Press

(Jul. 21, 1998).

That a person suspected of using bombs rather than

tracts as his vehicle for “expression” should have assumed

the status of a valiaut warrior against federal power is one

among many perverse entries in the States’ Rights lexicon.

That half the residents of Andrews should consider

resistance to all things federal a justification for harboring

a bombing suspect demonstrates the enduring cleavage

between “Nation” and its constituent parts. That cleavage

has been cynically exploited in Petitioners’ filings in this

Court.

Whatever the theoretical or genuine governance

virtues of American federalism, the State’s Rights mantra

invoked by Petitioners and their amici is a non sequitur

when uttered in opposition to the Hobbs Act or to the

constitutional right to choose to have an abortion. (See

Pet. Scheidler Br. at 33-34; OR Br. at 47-48; Br. of Amici

General Pryor ef al. at 10, 17.)

Congress considered and rejected ostensible

federalism concerns when it passed the Hobbs Act. The

Hobbs Act was authored by an Alabamian and shepherded

through floor debates by a Texan who noted trenchantly

that picking the side of criminals was a poor choice for

making a stand for States’ Rights. (91 Cong. Rec. at

11,910) (statement of Rep. Sumners). A Tennessean

reminded his colleagues that some subjects of

congressional notice were properly noticed. (91 Cong.

14

Rec. at 11,911) (statement of Rep. Jennings).

Then, as in this Court today, “States” Rights” was

deployed as a tool of misdirection. A review of the

legislative history demonstrates that the same disingenuous

polemic was at work in the 1945 floor debates as in this

Court today.

_ Representative Welch vigorously and explicitly

accused Hobbs Act supporters of being anti-States’ Rights:

This proposed law is am acknowledgment by

its proponents that law and order has broken

down in the sections of this country they

represent. Is it true that the very people who

elect them to Congress to make laws also

elect State, county, and city law enforcement

officers who are weaklings who fail in their

duty to enforce laws? Do they elect judges

who fail in their duty to impose proper

penalties for law violation?

91 Cong. Rec. at 11,903 (statement of Rep. Welch).

A belief in the rule of law and in the efficacy of the

national government to legislate on matters of national

scope prevailed over the views of Representative Welch

and his allies. The States Rights mantra, though chanted

copiously, was rejected in favor of the need to protect

American citizens from criminals in uniform fashion:

“[T]his bill applies to every citizen under the American

flag, whoever he may be, wherever he may live or to

whatever organization he may belong. ... Our people must

be made secure by law. They are entitled to that

15

protection—we must not fail them.” (91 Cong. Rec. at

11,911) (statement of Rep. Springer).

In the end, Congress legislated based on its

recognition that crime is crime, and citizens are entitled to

protection from it.

lil. OUR SYSTEM DEMANDS THAT WE

TRUST OUR CITIZENS WITH

ACCESS TO THE COURTS AND AS

JURORS.

In enacting the Hobbs Act, Congress rejected

hyperbolic fulminations of precisely the sort pressed here.

Petitiouers and their amici urge this Court to embrace their

self-serving conjectures of dire consequences if this Court

does not act swiftly to slam the door on private actions

under RICO predicated on violations of the Hobbs Act.

Their inapposite and exaggerated speculations are eerily

similar to those rejected by Congress in its debates on the

Hobbs Act decades ago. History has demonstrated that the

passage of the Hobbs Act has not chilled the exercise of

free speech, even hateful or loathsome speech protected

under the first amendment.

As noted, Petitioners have purportedly conjured

their specters for the sake of unchilled speech, unfettered

dissent, or a mere reflex toward “federalism” regardless of

whether the Hobbs Act or RICO as applied to violent

activity has any actual implication for peaceable free

expression, the systemic allocation of power, the structural

integrity of government, or the fostering of democracy that

federalism is intended to promote. It is jarring, then, to

discover that the subtext of these arguments — all about

16

values which putatively enhance the rights of individual

citizens — is a profound distrust of those same individual

citizens.

The jaundiced eye with which Petitioner Operation

Rescue views the ability of any jury to sift free speech

from threats and violence has been noted already. It is

perhaps less than surprising that an adversary which sought

to confuse sticks and stones with mere words in hopes of

bamboozling a jury would resent that the jury was not

credulous enough to succumb to such obfuscations.’ But

it is startling that a few chief law enforcement officers of

states — even if only a handful of states — apparently

believe that punishing governmental actors for wrongdoing

is poor social policy.

The brief of amici General Pryor et al. objects to

allowing a RICO cause of action against state officials who

conspire to break the law, who have a pattern of breaking

the law. Allowing citizens to state a cause of action

against habitual violators of citizens’ rights is portrayed as

Operation Rescue reasons that RICO remedies are best

confided to the Attorney General of the United States because

“private parties do not have the political accountability, or the duty

to exercise prosecutorial discretion, that apply to the federal

government.” (OR Br. at 24.) Private parties cannot be trusted to

refrain from “waging political or commercial warfare against [their]

adversaries.” (/d.) Operation Rescue fails to appreciate that political

actors have political motivations, that elections herald vicissitudes in

law-enforcement priorities that may foreclose individually aggrieved

citizens from vindicating their rights, and that the “warfare” waged

here was waged by PLAN — a warfare that private parties and a jury

resolved through the peaceful process of court action.

17

persecution of public servants that interferes with the

efficient discharge of their duties. (See Br. of Amici

General Pryor et al. at 12 & n.6.) No disclaimer is offered

for civil rights suits, no recognition that meritless suits are

judicially euthanized early is made.

Behind the professed solicitude for efficient

government unmolested by the governed is suspicion of

ordinary citizens’ motives. It is an odd thing that

purported champions of rights that attach to citizens and

not to governments-rights of dissent and free speech* -—

mistrust the ability of law-abiding citizens to go about their

civic business of bringing or impartially determining suits

based on existing law. It is decidedly odd that the chief

law enforcement officer of any state would agitate for

fewer protections for citizens and /ess punishment for

lawbreakers. This is particularly striking in view of the

fact that effective law enforcement, including the realistic

prospect of being caught and punished, has been proven to

decrease crime at women’s health clinics that perform

abortions. See 2000 National Clinic Violence Survey

Report (Feminist Majority Foundation) (released Jan. 22.

2001), available at http://www.feminist.org/research/

cvsurveys/clinic_survey2000.pdf17, at 5.’

. See Br. of Amici General Pryor et al. at 7 (“The application

of civil RICO to political or social protest activities has a substantial

chilling effect on protected First Amendment activity. Adding

injunctive remedies to the powerful treble damages available under

civil RICO would only lower the temperature further.”)

’ The survey defined violence as: blockades, invasions,

bombings, arsons, chemical attacks, stalking, physical assaults,

18

Just as Petitioners insist that juries cannot

competently distinguish protest from projectiles, amici

Attorneys General invite the Court to “imagine” a citizenry

lured by RICO’s treble-damages provision to sue about

administrative and regulatory decisions. (Br of Amici

Pryor ef al. at 11-12.) As an aid to the exercise of

imagination, they point to suits about no-smoking

ordinances. (/d.) Not one of the suits they cite, however,

is based on a RICO or Hobbs Act cause of action; every

one of them is based on the law of a particular state.'°

Nonetheless, having picked a wildly inapposite

example to illustrate the imaginary point, amici argue that

gunfire, bomb threats, death threats, and arson threats. 2000 National

Clinic Violence Survey Report at 5. The survey report specifically

identifies as among the deterrence components of “effective” law

enforcement the enactment of the Freedom of Access to Clinic

Entrances (FACE), this Court’s decision in Madsen v. Women’s

Health Center, 512 U.S. 753 (1994), and this Court’s earlier decision

in this very case. /d.

The correlation between violence and weak enforcement is

apparent in this case, as Respondents note in their citations to various

materials of record. (See, e.g., T3938, 4815-16; PA 123.) Even with

a decrease in violence from 1994-97 levels, 20% of clinics continue

to experience the violence documented by the survey. (/d.)

- Perhaps realizing that the example does not illustrate the

hypothetical danger of a bloated RICO because none of the cases is

in fact a RICO or Hobbs Act case, amici concede that if any of them

were, the Hobbs Act’s mens rea element would defeat the cause of

action. (See Br. of Amici Pryor et al. at 12.) Thus, amici admit in

their own brief that they have raised a wholly spurious issue; while

the perils of secondhand smoke may be many, they do not include

liability under RICO.

19

the availability of damages under the federal statutes

exposes public officials to liability for the “lawful exercise

of their discretionary functions.” (Br. of Amici Pryor et al.

at 12.) They imagine RICO liability for zoning actions,

permit actions, environmental regulations “and so on”

(id.), even while they concede that their imaginary liability

is imaginary precisely because the mens rea and qualified

immunity defenses would negate liability. (/d.) They do

not mention the dispositive defenses of legislative

immunity, the political-question doctrine, and other

defenses and sole remedies that may attach to regulatory

and administrative actions.

Since amici recognize that in fact RICO or Hobbs

Act liability cannot exist for no-smoking ordinances,

zoning, environmental, or administrative rules (conceded

by Amici Pryor et al. at 12), it must be that the false

example cloaks the true concern. The true concern

involves those citizens who present cases of official

malfeasance compelling enough to move the near-

Sisyphean obstacles of the various immunity doctrines.

Such cases that get to a jury and rightly prevail, apparently

viewed as nuisances, are euphemistically described as

those in which “defenses were unsuccessful.” (/d. at 12.)

A desire by attorneys general to protect wrongdoers on the

public payroll can only be regarded as contemptuous

toward citizens.

These same sentiments about the costs of litigation

and the potential exposure of the public fisc for public

agents’ serious wrongdoing could be expressed about the

civil rights laws to which our citizens and our judiciary are

rightly committed. Liability exists under those laws, as

20

well, and the state must invest in defense of them. It would

be impolitic, however, for amici to question in this forum

why an African-American might have recourse to

monetary damages, and even to multiple civil rights causes

of action if his rights are violated by his government.

Allowing a civil rights cause of action at all hazards

liability, and providing for multiple causes of action no

doubt lengthens a trial and increases expense.'' Such an

argument, given the pains our nation and its citizens

endured to secure those legal protections, would shock and

shame us.

Amici’s objection to the fact that government is

obliged to defend against lawsuits by citizens attempting to

vindicate their rights simply cannot be satisfied in a

democratic polity or in a polity that values civil rights. The

only failsafe way to accommodate General Pryor et al.’s

discomfort with citizen suits against government, whether

about zoning decisions or police officers’ billyclubs, is to

decree sovereign immunity. If the king can do no wrong,

it does not matter whether his wrong was negligent, stupid,

or malicious. Citizens would have no opportunity to test

whether their servants were entitled to discretionary

function or qualified immunity, and juries to determine

state liability would be superfluous.

This Court has addressed the limitations of

sovereign immunity many times precisely because our

government is not a monarchy. Our president, senators,

. E.g., 42 U.S.C.§ 1981; 42 U.S.C.§ 1983; 42 U.S.C.§ 1985.

These statutes are a mere starting point for causes of action under

which an aggrieved African-American might sue his government.

OI KSI MEINE. re >

21

city councilors, wardens, bureaucrats, and police officers

sometimes commit grievous wrongs proscribed by both

federal and state law. When they do, the sovereign people

may sue and punish them, exacting the penalty through the

decree of a jury of their peers.

Unlike Petitioners and their amici, our Founders

trusted citizens more than they trusted government. That

is why we have the first amendment that Petitioners and

their amici purport to champion and why we allow

ordinary citizens access to the courts that Petitioners and

their amici wish to block. It is also why we have juries,

who in addition to being clever enough to separate legal

fact from legal fiction in cases like this one, often act as a

brake on prosecutorial zeal and as the instrument of

calibration in matching the wrong to the punishment.

Petitioners and their amici repeatedly disparage the truly

indispensable element of our democracy: the sovereign

people. They do not trust them even though Publius did.

People are imperfect, and our democracy is

imperfect. But our democratic vision cannot be perfected

by withdrawing judgment from the people or retracting

their rights in order to repose them in their governors. This

realization has served us well since the founding of the

Republic, and neither Petitioners nor their amici have made

any credible argument for why we should forsake our

bedrock principles merely because democracy may be

messy, expensive, and far more time-consuming than

monarchy.

22

CONCLUSION

Petitioners and their amici urge this Court to accept

a parade of horribles they have manufactured of whole

cloth, ostensibly for the sake of unchilled “speech,” for the

sake of “federalism,” for the sake of efficient government.

“Speech” turns out to be a handy cloak for violent action,

“federalism” nothing more than a ritualistic invocation of

a word divorced from a concept as though its mere

utterance demands Pavlovian obedience, efficiency a

subterfuge for depriving citizens of the tools for bringing

governmental power to heel. While Petitioners and their

amici profess solicitude for the rights of citizens to

exercise their right to free speech, they evince a surprising

lack of confidence in the ability of those same citizens to

judge impartially the unsubtle difference between speech

and thuggery, protest and projectiles.

Congress understood that defense of the

indefensible is a poor vehicle for championing free-speech

values, just as picking the side of criminals is a poor way

of making a stand for States’ Rights. Petitioners and their

amici should be reminded of this.

Respectfully submitted,

PAMELA L. SUMNERS

COUNSEL OF RECORD

5443 N. BROADWAY °* SUITE 2-S

CHICAGO, IL 60640

(773) 271-8324

COUNSEL FOR AMICA CURIAE EMILY LYONS