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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0539%3A37

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 808

## Text

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,

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

eee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0539%3A37. Public record. Not legal advice.